Opinions

McCay v. McCay, et al. 2024 ND 130
Docket No.: 20230360
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Child Support
Author: Jensen, Jon J.

Highlight: A district court's findings on a material change in circumstances, best interest factors (a), (b), (c), and (d), the findings supporting relocation, and the findings related to the new parenting schedule were not clearly erroneous.

Hovet, et al. v. Dahl, et al. 2024 ND 129
Docket No.: 20230322
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Real Property
Author: Tufte, Jerod E.

Highlight: To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. When the claim of exclusive right is not founded upon a written instrument, the premises actually occupied and no other must be deemed to have been held adversely.

Mowing and maintenance are not unmistakably hostile uses of land and do not support a claim of title by adverse possession.

A new encroachment must meet the statutory period to extend the adverse possession to new land.

The doctrine of acquiescence applies when parties mutually mistake a boundary as a property line.

Fisher v. NDDOT 2024 ND 128
Docket No.: 20240046
Filing Date: 7/5/2024
Case Type: Appeal - Administrative - Department of Transportation
Author: Tufte, Jerod E.

Highlight: The issuance of a temporary operator's permit is a basic and mandatory requirement of the statute. To issue the temporary operator's permit, a law enforcement officer must complete the Report and Notice containing the temporary operator's permit and officially distribute it, but service of the permit is not required.

State v. Smith (consolidated w/20240005) 2024 ND 127
Docket No.: 20240004
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: This evidence was sufficient to support conviction on six counts of aggravated assault.

Felonious restraint is not a lesser included offense of forcible gross sexual imposition.

Aggravated assault is not a lesser included offense of forcible gross sexual imposition.

State v. Smith (consolidated w/20240004) 2024 ND 127
Docket No.: 20240005
Filing Date: 7/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Tufte, Jerod E.

Highlight: This evidence was sufficient to support conviction on six counts of aggravated assault.

Felonious restraint is not a lesser included offense of forcible gross sexual imposition.

Aggravated assault is not a lesser included offense of forcible gross sexual imposition.

Mwinyi v. State 2024 ND 126
Docket No.: 20240003
Filing Date: 7/5/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Tufte, Jerod E.

Highlight: The State must put the applicant on notice by serving and filing a notice of motion with any motion for summary dismissal or summary disposition. The State does not violate the rules of civil procedure by combining its answer to the postconviction application with the brief in support of its motion.

Ordinarily, summary disposition of an ineffective assistance of counsel claim should not be granted without an evidentiary hearing, but if the State moves for summary disposition, pointing out the absence of supporting evidence, then the burden shifts to the applicant to provide competent admissible evidence. If an applicant fails to respond with evidence, this Court will affirm denial of postconviction relief.

There is no constitutional right to an attorney for postconviction proceedings.

Interest of D.M.E. 2024 ND 125
Docket No.: 20240152
Filing Date: 6/20/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Orders for hospitalization and involuntary treatment with medication are summarily
affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Vervalen 2024 ND 124
Docket No.: 20230286
Filing Date: 6/20/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Voluntary intoxication is not a defense to a criminal charge. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged.

Attempted "intentional" murder is a criminal offense, requiring the State to prove the accused had an intent to kill to be convicted of attempted murder. A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.

Kubal v. Anderson 2024 ND 123
Docket No.: 20240007
Filing Date: 6/20/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The Uniform Child Custody Jurisdiction and Enforcement Act, N.D.C.C. ch. 1414.1, governs cases involving interstate custody disputes. Determination of whether North Dakota is a child's home state under the UCCJEA must be analyzed based on when the proceeding in North Dakota was commenced. Jurisdiction may exist under the UCCJEA despite North Dakota not being a child's home state.

The purpose of the UCCJEA is to promote cooperation between courts of different states and to prevent manipulation of the judicial system and undue complication of child custody disputes. Parties are required to provide the district court with information regarding other proceedings, and the district court is required to review that information.

Stephens v. Lee 2024 ND 122
Docket No.: 20230381
Filing Date: 6/20/2024
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When determining a parent's motion to relocation a child out of state, a district court must
first determine if the non-relocating parent consented or if an existing order or decree
permits relocation. If neither was met, the court must determine the merits of the relocation
by applying the Stout-Hawkinson factors.

The district court's findings under the Stout-Hawkinson factors and denying the motion to
relocate is summarily affirmed under N.D.R.App.P. 35(a)(2).

The district court's findings on the statutory best interest factors and granting the motion
to change primary residential responsibility is summarily affirmed under N.D.R.App.P.
35(a)(2).