Opinions

sather 2010 ND 27
Docket No.: 20090149
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: The First Amendment does not apply to "fighting words" that are likely to incite a breach of the peace or provoke a violent reaction.
The petition in a juvenile delinquency case must set forth sufficient facts to provide the respondent with notice of the manner in which the State alleges the juvenile committed a delinquent act.
On appeal from a juvenile court order, we review the court's findings of fact under the clearly erroneous standard.

Wolt v. Wolt (cross ref. 20090126) 2010 ND 26
Docket No.: 20090103
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The district court has substantial discretion in making a custody determination, but it must consider all of the staturtory factors.
In awarding visitation to the noncustodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.
A district court's marital valuations are not clearly erroneous if they are within the range of evidence presented.
Property division need not be equal to be equitable, but a substantial disparity must be explained. A long-term marriage supports an equal distribution of property.

Fleck v. Fleck 2010 ND 24
Docket No.: 20090075
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Appellate review is especially deferential to a district court's difficult decision on primary residential responsibility when it involves two fit parents.
A district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.

Nelson v. Johnson 2010 ND 23
Docket No.: 20090133
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Landlord/Tenant
Author: Maring, Mary

Highlight: Special statutory procedures are exempt from the rules of civil procedure insofar as those statutory procedures are inconsistent with the rules.
A landlord may not commence an eviction action against a tenant for nonpayment of rent unless the landlord gives the tenant a three-day notice of intention to evict and an opportunity to pay the past due rent.
A notice of intention to evict may be served either as a summons is served and returned, or by the sheriff of the county or a process server posting the notice conspicuously upon the premises if the party cannot be found.
Service of a notice of intention to evict must have been attempted at least once and the tenant not found before the notice may be served by posting conspicuously upon the premises.
A process server is interested in the action if the server might properly have been joined as a party in the action.
No counterclaims may be interposed in an eviction action except as a set off to a demand made for damages or for rents and profits.

Grinnell Mutual Ins. Co. v. Thompson, et al. 2010 ND 22
Docket No.: 20090250
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: The Financial Responsibility Laws do not set minimum levels of insurance coverage for nonpermissive operators.

Judicial Vacancy in Judgeship No. 6, East Central Judicial District 2010 ND 21
Docket No.: 20100020
Filing Date: 2/17/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Halberg v. Halberg 2010 ND 20
Docket No.: 20090168
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines.
A court must determine an obligor's gross income before determining whether the obligor is underemployed.
For purposes of determining a child support obligation, an individual's gross income includes net income from self-employment, the value of in-kind income received on a regular basis, and employee benefits.

State v. Stridiron (consolidated w/20090093) 2010 ND 19
Docket No.: 20080285
Filing Date: 1/26/2010
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: A district court's decision to consolidate offenses or its refusal to grant a separate trial will not be set aside on appeal unless the defendant establishes a clear abuse of discretion.
A district court should generally wait until voir dire to determine whether it is possible to select a fair and impartial jury.
A district court's findings in resolving a challenge based on Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection will not be overturned on appeal unless they are clearly erroneous.
In determining "corroborating circumstances" under N.D.R.Ev. 804(b)(3), the district court may analyze both the credibility of the in-court witness and the reliability of the out-of-court declarant.
The Supreme Court does not sit as a "thirteenth juror" to make independent determinations of credibility of witnesses or other evidentiary weight.

Isaacson v. Isaacson 2010 ND 18
Docket No.: 20090114
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Courts determine actual controversies and will not act in an advisory capacity to decide mooted questions or abstract propositions.
Litigants in civil nonjury cases have a right to make a final argument. This right can be waived by the parties or narrowed by the courts, but it cannot be unilaterally denied.
Rule 8.3 property and debt listings filed in divorce proceedings inform the court what value the parties assign to marital property. The assigned values are suggestions that are not binding on the court.
Items not recognized as marital assets are not included in the marital estate absent argument demonstrating the propriety of inclusion.
Continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed without a request for a continuance or a showing of inability to meet the surprising situation.

Matter of Voisine 2010 ND 17
Docket No.: 20090182
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: A person can be committed as a sexually dangerous individual when the State demonstrates by clear and convincing evidence that the three-prong commitment analysis has been satisfied. The first prong requires a showing that the individual has engaged in sexually predatory conduct. The second prong requires a showing that the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction. The third prong requires a showing that the individual is likely to engage in further acts of sexually predatory conduct and that the individual has serious difficulty controlling his behavior.
Only sexually predatory conduct can be considered in determining whether an individual satisfies the first prong of the sexually dangerous individual commitment analysis. All conduct of a sexually predatory nature can be considered in determining the second prong. All relevant conduct can be considered in determining the third prong.
Incest between consenting adults is not sexually predatory conduct as defined by N.D.C.C. 25-03.3-01(9).