Opinions

Legacie-Lowe v. Lowe 2023 ND 88
Docket No.: 20220314
Filing Date: 5/9/2023
Case Type: OTHER (Civil)
Author: Jensen, Jon J.

Highlight: The district court’s findings are inadequate to understand the basis for the decision.

The Court retains jurisdiction and remands for the district court to make specific findings of fact on whether there was infliction of fear of imminent domestic violence.

Johnson v. City of Jamestown 2023 ND 87
Docket No.: 20220283
Filing Date: 5/9/2023
Case Type: PERSONAL INJURY
Author: Per Curiam

Highlight: A judgment dismissing a personal injury action is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Anderson v. Anderson 2023 ND 86
Docket No.: 20220287
Filing Date: 5/9/2023
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: McEvers, Lisa K. Fair

Highlight: All property held by either party, whether held jointly or individually, is considered marital property.

A capital loss may be used as a deduction for federal income tax purposes.

A contempt order is collateral to the merits of the case and appealable by special statute.

A party challenging a district court’s imposition of sanctions bears the burden of proving the court abused its discretion in light of the information available at the time.

E.R.J. v. T.L.B. 2023 ND 85
Docket No.: 20220199
Filing Date: 5/9/2023
Case Type: PATERNITY
Author: Tufte, Jerod E.

Highlight: A district court’s findings that changing a child’s name is in the best interests of a child satisfies the good cause standard under N.D.C.C. § 14-20-57(7).

Under section 14-03-20.1(2)-(3), N.D.C.C., a “person’s surname does not automatically change upon marriage,” but parties to a marriage may choose to change their name after solemnization “by entering the new surname in the space provided on the marriage license application.”

A district court may order a child’s name be changed to a hyphenated combination of the parents’ names when requested as an alternative by a parent even when a petition does not specifically request that option, provided that both parties have notice at the hearing and opportunity to respond.

Nodak Ins. Co. v. Farm Family Casualty Ins. Co., et al. 2023 ND 84
Docket No.: 20220114
Filing Date: 5/9/2023
Case Type: INSURANCE
Author: Bahr, Douglas Alan

Highlight: Interpretation of an insurance policy is a question of law, fully reviewable on appeal.

If coverage hinges on an undefined term, the plain, ordinary meaning of the term applies in interpreting the contract.

While insurance policies are regarded as adhesion contracts and ambiguities are resolved in favor of the insured, a contract will not be rewritten to impose liability on an insurer if the policy unambiguously precludes coverage.

The phrase “similar insurance” used in an automatic termination or cessation provision means similar in type and in amount.

Vacancy in Judgeship No. 3, NWJD 2023 ND 83
Docket No.: 20230068
Filing Date: 4/26/2023
Case Type:
Author: Per Curiam

Highlight: Judgeship retained at Williston.

State v. Smith 2023 ND 82
Docket No.: 20220162
Filing Date: 4/26/2023
Case Type: ASSAULT
Author: McEvers, Lisa K. Fair

Highlight: When a party asserts prosecutorial misconduct for the first time on appeal, this Court may review for obvious error.

Questioning by the State regarding relevant evidence in the case may not amount to a prosecutor stating his personal belief on a defendant’s claim of self-defense nor prosecutorial misconduct.

Questioning by the State will not warrant reversal when such questions were invited by the defense.

Questions regarding potential weaknesses of a defendant’s case does not amount to burden shifting, particularly when the jury is reminded numerous times throughout trial that the burden is on the State.

Non-public exchanges, such as brief sidebars or bench conferences, between counsel and the court on routine evidentiary issues, technical legal issues, and administrative issues are not public trial violations.

The district court does not abuse its discretion by allowing expert testimony when it found the testimony was relevant, not overly cumulative, and properly noticed.

State v. Schaf 2023 ND 81
Docket No.: 20220323
Filing Date: 4/26/2023
Case Type: SEXUAL OFFENSE
Author: Jensen, Jon J.

Highlight: The district court decides the qualifications of the witness to express an opinion on a given topic. The decision whether to admit expert witness testimony rests within the court’s discretion.

For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser. It also must be impossible to commit the greater offense without committing the lesser.

While a sexual contact charge may be a lesser included offense contained within a sexual act charge, the subsections of both offenses must be compatible and the evidence must support an inclusion.

An alleged error with jury instructions will be reviewed for obvious error when the instructions were not objected to at trial and proposed instructions were not provided to the district court.

Voluntary intoxication is irrelevant to a crime of general intent.

State v. Hannesson 2023 ND 80
Docket No.: 20220244
Filing Date: 4/26/2023
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: McEvers, Lisa K. Fair

Highlight: Ordering a mistrial is an extreme remedy that is only appropriate when there is a fundamental defect or occurrence at trial that makes it evident that continuing would be productive of manifest injustice.

Curative jury instructions will generally remove prejudice caused by a prosecutor’s improper statements because a jury is presumed to follow the district court’s instructions.

Hanson v. Hettervig, et al. 2023 ND 79
Docket No.: 20220261
Filing Date: 4/26/2023
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Per Curiam

Highlight: An order of contempt and an amended order of contempt and award of attorney’s fees are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).