Opinions

Walstad v. Walstad (cross-reference 20120059) 2013 ND 176
Docket No.: 20130023
Filing Date: 10/11/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: An independent action in equity is available only to prevent a grave miscarriage of justice.
To award attorney fees and costs under N.D.C.C. 14-05-23, the trial court must balance one party's needs against the other party's ability to pay and whether the action of either party unreasonably increased litigation costs, but in an independent action in equity for fraudulent concealment of marital assets, balancing one party's ability to pay with the other's needs is secondary to considering whether the actions of one party unreasonably increased litigation costs.
The secreting of assets in a divorce action is a clear and blatant form of economic misconduct, and it also implicates economic misconduct in the form of intentional non-disclosure of substantial marital assets.

Rolla v. Tank, et al. 2013 ND 175
Docket No.: 20130035
Filing Date: 10/2/2013
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A caption on a deed is of no effect when the conveyance is clear.
Courts will not strain to find an ambiguity where none appears on the face of the instrument.

Holte v. Holte 2013 ND 174
Docket No.: 20120312
Filing Date: 9/30/2013
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: When a substantial marital debt has been excluded from the marital estate, it is not possible to determine whether the district court would have reached the same result in allocating the assets and debts had it included the debt.
Trusts are generally included as marital property subject to equitable distribution by the district court and may be divided at the time of divorce either by awarding the present value of the benefits or, when the present valuation is too speculative, by awarding a percentage of future payments.
Marital property is ordinarily valued as of the date of trial.

Seibold v. Leverington (cross-reference w/ 20110152) 2013 ND 173
Docket No.: 20130026
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Although a separate finding is not required for each statutory best interest factor, the court's findings must contain sufficient specificity to show the factual basis for the residential responsibility decision.
To modify parenting time, the moving party must demonstrate that a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the best interests of the child. Parents are required to submit a parenting plan to the district court to be included in the court's decree, but when the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interests of the child.

Baatz v. State 2013 ND 172
Docket No.: 20130066
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: Questions raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal, because the decision on the first appeal, whether right or wrong, is the law of the case.

Interest of Graham 2013 ND 171
Docket No.: 20130090
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Res judicata does not apply to the second element of the sexually dangerous individual analysis, determining whether a committed individual has a congenital or acquired condition manifested by a sexual disorder, personality disorder or other mental disorder or dysfunction, when evaluating a committed sexually dangerous individual's petition for discharge.

Stark County v. A motor vehicle, et al. 2013 ND 170
Docket No.: 20130102
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Movement of a vehicle for weighing at the direction of a police officer is not movement for purposes of a weight-restriction violation.

McColl Farms v. Pflaum 2013 ND 169
Docket No.: 20130053
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A complaint should not be dismissed for failure to state a claim unless it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.
Although a party is generally not entitled to an equitable remedy if there is an adequate legal remedy, a party may seek relief and proceed on both equitable and legal claims.
In summary judgment proceedings, a court may properly refuse to consider an attorney's affidavit if the affidavit is not based on the attorney's personal knowledge.
A party resisting a motion for summary judgment cannot merely rely on the pleadings and briefs, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.

Hallin, et al. v. Lyngstad, et al. 2013 ND 168
Docket No.: 20120354
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: The language of the deed, if clear and explicit, governs its interpretation, and the parties' mutual intentions must be ascertained from the four corners of the deed, if possible.
Generally, under the common law, a reservation or exception in a deed of conveyance cannot operate as a conveyance to a third party who is a stranger to the title or deed. However, an exception or reservation in a deed may be effective to convey property to a spouse who does not have an interest in the property but joins in the deed's execution when that is determined to have been the grantor's intent.

Anderson v. Jenkins 2013 ND 167
Docket No.: 20130078
Filing Date: 9/25/2013
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A district court may conclude the moving party failed to establish a prima facie case for change of primary residential responsibility only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification.
Unless the opposing party's counter-affidavits conclusively establish the movant's allegations have no credibility, the district court must accept the truth of the moving party's allegations.