Opinions

Tischmak v. Theurer, et al. 2025 ND 235
Docket No.: 20250059
Filing Date: 12/31/2025
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: District courts have wide judicial discretion in partition actions to do equity and to make a fair and just division of the property or proceeds between the parties, and great flexibility in fashioning appropriate relief for the parties.

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The task of weighing the evidence and judging the credibility of witnesses
belongs to the trier of fact, and this Court does not reweigh credibility or resolve conflicts in the evidence.

State v. Medina 2025 ND 234
Docket No.: 20250178
Filing Date: 12/31/2025
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Rule 11(a)(2), N.D.R.Crim.P., addresses conditional guilty pleas and requires: (1) the defendant, any defendant's attorney and the prosecuting attorney consent in writing to the conditional plea; (2) the court accept the conditional plea and enter an order; and (3) the judgment specify the plea is conditional.

Temporary remand is warranted for the district court's determination whether the plea was conditional and, if so, entry of an order and judgment consistent with the requirements of N.D.R.Crim.P. 11(a)(2).

State v. Solis 2025 ND 233
Docket No.: 20250247
Filing Date: 12/31/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A district court did not abuse its discretion by requiring registration as a sex offender.

Under N.D.C.C. § 12.1-32-15(2)(b), a court may deviate from the registration requirement if the court makes findings on the specified criteria. The court is not required to make the findings unless it first exercises its discretion to deviate
from the registration requirement.

Bohe v. State 2025 ND 232
Docket No.: 20250285
Filing Date: 12/31/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) & (4).

City of Williston v. Bauer 2025 ND 231
Docket No.: 20250216
Filing Date: 12/31/2025
Case Type: Appeal - Criminal - Disorderly Conduct
Author: Crothers, Daniel John

Highlight: The order denying the defendant's motion for recovery of attorney's fees and costs, brought in a criminal case after acquittal, is affirmed.

Markestad v. Markestad, et al. 2025 ND 230
Docket No.: 20250220
Filing Date: 12/31/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: McEvers, Lisa K. Fair

Highlight: The district court must state its findings of fact with sufficient specificity to enable a reviewing court to understand the factual basis for its decisions.

Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for the district court's decision merely because we might have reached a different result. A fit non-custodial parent is routinely awarded some form of extended summer visitation unless the court has reason to deny it.

Appellate courts review the record and findings as a whole and if the controlling findings are supported by the evidence, they will be upheld on appeal notwithstanding immaterial misstatements in the lower court's decision.

A party is not entitled to attorney's fees on appeal if the issue is inadequately briefed or the appeal is not frivolous

State v. Jenkins 2025 ND 229
Docket No.: 20250308
Filing Date: 12/31/2025
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: This Court lacks jurisdiction to review untimely appeals.

Inadequately briefed issues are waived.

Wardner v. Porath, et al. 2025 ND 228
Docket No.: 20250256
Filing Date: 12/31/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Bahr, Douglas Alan

Highlight: A district court has jurisdiction to modify a foreign custody determination, including visitation orders, when the child's home state is North Dakota and the child and parents no longer reside in the issuing jurisdiction.

Appellate courts have the authority and duty to determine the applicability of relevant statutes to legal controversies, even when the parties do not identify those statutes or argue for their application.

When a parent seeks to modify an existing nonparent visitation order, the court must apply the modification standards under the Uniform Nonparent Custody and Visitation Act.

When modifying an order granting nonparent visitation, the court must determine whether the nonparent rebutted in the initial proceeding the presumption that the parent's decision regarding visitation is in the child's best interest. If the nonparent rebutted the presumption in the initial proceeding, the presumption remains rebutted.

Geiger v. State 2025 ND 227
Docket No.: 20250236
Filing Date: 12/31/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying relief in a postconviction proceeding is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Duffi v. State 2025 ND 226
Docket No.: 20250230
Filing Date: 12/31/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Myrick, et al. v. Holmes 2025 ND 225
Docket No.: 20250199
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Protection/Restraining Order
Author: Per Curiam

Highlight: An appeal from a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

State v. Hamilton 2025 ND 224
Docket No.: 20250307
Filing Date: 12/18/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: The district court's order removing a condition from the defendant's criminal judgment that required money from his prison account to be applied to his child support obligations is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Gaede 2025 ND 223
Docket No.: 20250313
Filing Date: 12/18/2025
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: An order denying a North Dakota Rule of Criminal Procedure 35(a) motion to correct an illegal sentence is summarily affirmed under North Dakota Rule of Appellate Procedure 35.1(a)(7).

State v. Jaeger 2025 ND 222
Docket No.: 20250195
Filing Date: 12/18/2025
Case Type: Appeal - Criminal - Child Abuse/Child Neglect
Author: Jensen, Jon J.

Highlight: Pursuant to N.D.R.Crim.P. 36, a district court has authority to correct a clerical error in a written order that inaccurately states the court's oral pronouncement of sentence when the correction does not make the sentence more onerous than
the original sentence, but merely corrects the written order's failure to record accurately an earlier unambiguous oral pronouncement.

The failure to appoint a criminal defendant counsel to respond to a Rule 36 motion to correct a clerical error in a probation revocation proceeding does not violate the defendant's constitutional right to counsel because the process of
probation revocation is not a critical stage of a criminal prosecution.

Thornberg v. Thornberg, et al. 2025 ND 221
Docket No.: 20250203
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Contempt of Court
Author: Jensen, Jon J.

Highlight: The district court's order holding the appellant in contempt of court for interfering with the appellee's parenting time is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The district court's orders awarding compensatory parenting time and attorney's fees to the appellee are affirmed.

The appellee's motion for attorney's fees on appeal is denied.

Matter of William C. Hansen and Verna Hansen Trust 2025 ND 220
Docket No.: 20250206
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Jensen, Jon J.

Highlight: North Dakota Century Code § 59-14-02(5) governs whether an agent acting under a power of attorney has authority to amend a trust. It permits amendments "only to the extent expressly authorized by the terms of the trust or the power, exercised in writing and delivered to the trustee." Under N.D.C.C. § 59-19-02(1)(b), the express authorization requirement applies "to all judicial proceedings concerning trusts which are commenced after July 31, 2007." The word "express" means clearly and unmistakably communicated; stated with directness and clarity. Express authority cannot be implied from general provisions.

Dukart, et al. v. Holmes 2025 ND 219
Docket No.: 20250151
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Protection/Restraining Order
Author: Per Curiam

Highlight: A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

Mollner v. State 2025 ND 218
Docket No.: 20250229
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying relief in a postconviction proceeding is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of J.C. 2025 ND 217
Docket No.: 20250378
Filing Date: 12/18/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating parental rights is remanded for specified findings of active efforts under N.D.C.C. § 27-19.7-01(2). The Supreme Court retains jurisdiction.

Interest of S.C.Y. 2025 ND 217
Docket No.: 20250379
Filing Date: 12/18/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: A juvenile court order terminating parental rights is remanded for specified findings of active efforts under N.D.C.C. § 27-19.7-01(2). The Supreme Court retains jurisdiction.

Estate of Lepp 2025 ND 216
Docket No.: 20240310
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: Probate law distinguishes between informal and formal proceedings and between unsupervised and supervised administration.

An appeal of multiple orders in an unsupervised probate is dismissed without N.D.R.Civ.P. 54(b) certification or resolution of all claims by and against a party.

This Court generally will not consider an appeal in a multi-claim or multi-party action that disposes of fewer than all claims against all of the parties unless the district court has first independently assessed the case and determined a certification under N.D.R.Civ.P. 54(b) is appropriate.

Even in an unsupervised probate, the existence of unresolved claims by or against a party prevents immediate appellate review without N.D.R.Civ.P. 54(b) certification.

State v. Hoff 2025 ND 215
Docket No.: 20240354
Filing Date: 12/18/2025
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A defendant can waive his right to counsel either expressly, or through his conduct.

A waiver of the right to counsel must be knowingly and intelligently made. This requires the defendant be advised of the dangers and difficulties of self-representation.

Interest of G.S. 2025 ND 214
Docket No.: 20250394
Filing Date: 12/18/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of A.S. 2025 ND 214
Docket No.: 20250395
Filing Date: 12/18/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Kolstad v. Claussen 2025 ND 213
Docket No.: 20250192
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Tufte, Jerod E.

Highlight: The district court must state its findings of fact with sufficient specificity to enable a reviewing court to understand the factual basis for its decisions. A court's findings of fact are sufficient if they afford a clear understanding of the court's decision and assist the appellate court in conducting its review.

Under the clearly erroneous standard, the Court does not reweigh evidence or reassess witness credibility. The district court did not clearly err in finding a parent did not change employment to reduce his child support obligation, but rather to parent his children.

Wright, et al. v. Holmes 2025 ND 212
Docket No.: 20250179
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Protection/Restraining Order
Author: Per Curiam

Highlight: A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

State v. Ahmed 2025 ND 211
Docket No.: 20250188
Filing Date: 12/18/2025
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Bahr, Douglas Alan

Highlight: Under N.D.C.C. § 62.1-01-01(3), a firearm means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive.

The State can rely on the surrounding facts and circumstances, including testimony from lay witnesses, to prove a weapon is a "dangerous weapon" or "firearm" as defined in N.D.C.C. § 62.1-01-01(3).

State v. Running Bear 2025 ND 210
Docket No.: 20250138
Filing Date: 12/18/2025
Case Type: Appeal - Criminal - Child Abuse/Child Neglect
Author: Per Curiam

Highlight: A jury verdict's criminal conviction for child abuse of a victim under six years of age is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Fairville Township v. Wells Cty. Water Resource District 2025 ND 209
Docket No.: 20250255
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Administrative Proceeding
Author: Bahr, Douglas Alan

Highlight: Section 61-16.1-51, N.D.C.C., does not authorize water resource boards to assess their costs against governing bodies not acting as a landowner.

Adoption of G.M.H. 2025 ND 208
Docket No.: 20250376
Filing Date: 12/18/2025
Case Type: Appeal - Civil - Adoption
Author: Bahr, Douglas Alan

Highlight: District courts have discretion to terminate parental rights based on abandonment by evaluating whether a noncustodial parent failed to communicate with or support their child without justifiable cause. Courts must assess the specific facts of each case to determine if the parent's lack of contact and care was justified by the circumstances or represented an unjustified failure to maintain the parent-child relationship.

An as-applied constitutional challenge that merely disagrees with how the court weighed the evidence does not demonstrate the statute was applied unconstitutionally.

Interest of B.L.H. 2025 ND 207
Docket No.: 20250397
Filing Date: 12/4/2025
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: An order granting involuntary treatment with prescribed medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

MidFirst Bank v. Young, et al. 2025 ND 206
Docket No.: 20240266
Filing Date: 12/4/2025
Case Type: Appeal - Civil - Foreclosure
Author: Tufte, Jerod E.

Highlight: A mortgagor lacks standing to challenge a mortgage assignment between the assignor and assignee as a non-party to that transaction.

A district court abuses its discretion by denying a request for an audio recording without explanation.

Court transcripts carry a rebuttable presumption of accuracy.

A judge advising self-represented litigants to seek counsel does not establish judicial bias.

Harris v. State 2025 ND 205
Docket No.: 20250250
Filing Date: 12/4/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A plaintiff seeking postconviction relief is required to show but for counsel's errors, there is a reasonable probability the result at trial would have been different.

Inadequate briefing or support of an issue on appeal will prevent review.

State v. Martinez 2025 ND 204
Docket No.: 20250190
Filing Date: 12/4/2025
Case Type: Appeal - Criminal - Terrorizing
Author: Bahr, Douglas Alan

Highlight: Under N.D.R.Crim.P. 24, a jury is not empaneled until all jurors, including any alternates, have been qualified, accepted, and sworn.

In a jury trial, jeopardy attaches when the jury is empaneled and sworn.

A court's replacement of a juror with an alternate juror does not generally implicate the Double Jeopardy Clause.

The district court does not abuse its discretion by replacing an empaneled juror with an alternate juror due to an association between a juror and a relative of the defendant.

State v. Martinez 2025 ND 204
Docket No.: 20250191
Filing Date: 12/4/2025
Case Type: Appeal - Criminal - Attempted Murder
Author: Bahr, Douglas Alan

Highlight: Under N.D.R.Crim.P. 24, a jury is not empaneled until all jurors, including any alternates, have been qualified, accepted, and sworn.

In a jury trial, jeopardy attaches when the jury is empaneled and sworn.

A court's replacement of a juror with an alternate juror does not generally implicate the Double Jeopardy Clause.

The district court does not abuse its discretion by replacing an empaneled juror with an alternate juror due to an association between a juror and a relative of the defendant.

Interest of A.D.-B. 2025 ND 203
Docket No.: 20250371
Filing Date: 12/4/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The juvenile court's order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of M.D.-B. 2025 ND 203
Docket No.: 20250372
Filing Date: 12/4/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The juvenile court's order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of C.B. 2025 ND 203
Docket No.: 20250373
Filing Date: 12/4/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The juvenile court's order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Kalmio v. State 2025 ND 202
Docket No.: 20250259
Filing Date: 12/4/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: An order denying relief in a postconviction proceeding is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Bell 2025 ND 201
Docket No.: 20250092
Filing Date: 12/4/2025
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: When interpreting a statute, the primary goal is to determine the legislature's intent by looking to the statute's plain language and attempting to give each word, phrase, and sentence its ordinary meaning.

Statutes are construed as a whole and harmonized to give meaning to related provisions. The statutes' context and the purposes for which they are enacted are considered, in addition to the actual language, its connection with other clauses, and the words or expressions which obviously are by design omitted.

Chapter 39-20, N.D.C.C., addresses chemical tests for intoxication and implied consent for individuals who operate motor vehicles. Section 39-20-01, providing for implied consent for chemical tests, must be read in conjunction with section 39-20-01.1, addressing chemical tests of drivers in serious bodily injury or fatal crashes.

Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. Consent is one exception to the warrant requirement, provided the consent is voluntary. A district court must determine whether the consent was voluntary under the totality of the circumstances.

State v. Lizotte 2025 ND 200
Docket No.: 20250226
Filing Date: 12/4/2025
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: A district court order revoking probation and resentencing the defendant is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

Access Independent Health Services, Inc., d/b/a Red River Women's Clinic. et al. v. Wrigley, et al. 2025 ND 199
Docket No.: 20240291
Filing Date: 11/21/2025
Case Type: Appeal - Civil - Constitutional Law
Author: Per Curiam

Highlight: A sufficient majority was not reached to declare unconstitutional N.D.C.C. ch. 12.1-19.1, which criminalizes abortion with exceptions. The effect of the separate opinions is that a district court judgment declaring N.D.C.C. ch. 12.1-19.1 unconstitutional and void is reversed.

Johnson v. Staiger 2025 ND 198
Docket No.: 20250048
Filing Date: 11/20/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Bahr, Douglas Alan

Highlight: District courts may properly consider a parent's alcohol abuse and act of driving under the influence when determining whether a material change of circumstances exists. However, our cases do not show an isolated incident of a parent driving under the influence automatically mandates a finding of a material change of circumstances.

A party may not challenge prior unappealed parenting time requirements in an appeal of a subsequent order modifying parenting time.

Under N.D.R.Ct. 3.2(a)(2), a district court errs in not allowing a party the opportunity to file a reply brief; however, a court may remedy the premature issuance of an order by subsequently reviewing a timely submitted reply brief to determine whether it impacts the court's decision.

A district court does not abuse its discretion by denying a motion under N.D.R.Civ.P. 60(b) when the movant does not identify or argue a specific ground for relief under N.D.R.Civ.P. 60(b).

State v. Vetter 2025 ND 197
Docket No.: 20250149
Filing Date: 11/20/2025
Case Type: Appeal - Criminal - Disorderly Conduct
Author: McEvers, Lisa K. Fair

Highlight: Issues not raised or considered in the district court, including claims of constitutionally protected activity, cannot be raised for the first time on appeal, unless the issue rises to the level of obvious error. It is the defendant's burden to show an obvious error that affects a substantial right, and the discretion to notice obvious error need not be exercised when obvious error is not raised on appeal.

Tumultuous behavior may include conduct that is loud, noisy, or creates a disorderly commotion.

Diop v. Altepeter, et al. 2025 ND 196
Docket No.: 20250209
Filing Date: 11/20/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Per Curiam

Highlight: An order denying Altepeter's motion to amend parenting time provisions in a divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (8).

Clemenson v. Clemenson, et al. 2025 ND 195
Docket No.: 20250097
Filing Date: 11/20/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Crothers, Daniel John

Highlight: The domestic violence factor in N.D.C.C. § 14-09-06.2(1)(j) requires the district court find credible evidence that domestic violence occurred. The court next must find an instance of (1) serious bodily injury, or (2) use of a dangerous weapon, or (3) a pattern of domestic violence within a reasonable time proximate to the proceeding.

We do not reweigh the findings of a district court under the clearly erroneous standard.

State v. Gores 2025 ND 194
Docket No.: 20250055
Filing Date: 11/20/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A criminal judgment entered after a bench trial is affirmed because sufficient evidence supports the convictions.

Unlike in a jury trial, a defendant does not need to move for judgment of acquittal under N.D.R.Crim.P. 29 at a bench trial to preserve the issue of sufficiency-of-the-evidence for appeal.

The process of "making an arrest" or "effecting an arrest" contains many steps, which, if uninterrupted, result in an arrest. "Preventing arrest" is the charged crime for preventing an officer from "effecting an arrest" at any point during the arrest process.

During the process of "making an arrest" law enforcement is required to inform the individual of the cause of arrest unless the officer does not have an opportunity to do so. See N.D.C.C. § 29-06-17.

Boyda v. Boyda, et al. 2025 ND 193
Docket No.: 20250054
Filing Date: 11/20/2025
Case Type: Appeal - Civil - Parenting Responsibility
Author: Crothers, Daniel John

Highlight: An existing parenting plan that creates conflict between a parent and the children can be a material change of circumstances for modification of the plan.

A district court has broad discretion in determining which party bears the costs for an examination under N.D.R.Civ.P. 35 and for therapy.

A parenting plan that gives a third party the power to unilaterally determine progress and set requirements without criteria from the district court is an improper delegation of the court's authority.

The decision whether to hold a person in contempt is addressed to a district court's discretion, and will be reversed only upon a showing of an abuse of discretion.

Vacancy in Judgeship No. 6, ECJD 2025 ND 192
Docket No.: 20250363
Filing Date: 11/5/2025
Case Type: Judicial Administration - Vacancy - Vacancy
Author: Per Curiam

Highlight: Judgeship retained at Fargo

State v. Cotton 2025 ND 191
Docket No.: 20250152
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: District courts have discretion to issue consecutive terms of imprisonment for felonies, but N.D.C.C. § 12.1-32-11 limits the court's authority for misdemeanors. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, unless the defendant is being sentenced for two or more class A misdemeanors and each was committed as part of a different course of conduct or each involved a substantially different criminal objective. Crimes are not necessarily part of the same course of conduct simply because they were committed close in time or by similar means.