Opinions

Fonder v. Fonder 2012 ND 228
Docket No.: 20120134
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Krueger v. Tran 2012 ND 227
Docket No.: 20120152
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In modification of primary residential responsibility cases, a material change in circumstances can exist when one parent attempts to alienate a child's affection for the other parent, when parents are openly hostile towards each other and that hostility negatively affects the child, or when the noncustodial parent's situation improves accompanied by a general decline in the child's condition with the other parent over the same time period.
Methods other than a change of residential responsibility should be used initially to attempt to remedy a parent's misbehavior, but, after exhausting other remedies, a change may be the only method to correct the damage of a particularly stubborn and defiant custodial parent.

Herring, et al. v. Lisbon Partners, et al. 2012 ND 226
Docket No.: 20120090
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: The owner of a tree's trunk owns the entire tree, including branches and roots which encroach upon adjoining property.
The owner of a tree whose branches or roots encroach upon neighboring property may be liable when the encroaching branches or roots cause damage, or create imminent danger of causing damage, beyond merely casting shade or dropping leaves, flowers, or fruit.
A neighboring landowner may engage in self-help and cut back encroaching branches or roots to the property line.

Hammeren v. Hammeren 2012 ND 225
Docket No.: 20110345
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The district court must award primary residential responsibility to the parent who will better promote the child's best interests, and the court must consider all the relevant statutory best-interest factors. Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision.
The preference of a child who is capable of intelligently choosing between his parents for custody can be significant in determining the best interest of the child, but the child's preference is only one factor to consider and is not usually determinative.
Although rotating residential responsibility is not per se erroneous, a court's findings must support the conclusion such alternating custody is in the child's best interests.
A district court's decision on a motion to amend or make additional findings under N.D.R.Civ.P. 52(b), on a motion to alter or amend a judgment under N.D.R.Civ.P. 59(j), or on a motion for relief from the judgment under N.D.R.Civ.P. 60(b), will not be reversed on appeal absent an abuse of discretion.

Disciplinary Board v. McDonagh (Consolidated w/ 20120238) 2012 ND 224
Docket No.: 20120237
Filing Date: 10/23/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarment ordered.

Gardner v. N.D. Dep't of Transportation 2012 ND 223
Docket No.: 20120230
Filing Date: 10/23/2012
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Whether an officer failed to give an implied consent advisory is not an issue for the administrative hearing for the suspension of the individual's driver's license.
An individual may be deemed to have refused chemical testing for blood alcohol content when the individual repeatedly refuses to cooperate with police after chemical testing is requested.

Shannon v. Shannon 2012 ND 222
Docket No.: 20110340
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A judgment which does not adjudicate all claims of all of the parties is interlocutory and nonappealable unless the district court expressly certifies the judgment is final under N.D.R.Civ.P. 54(b).
A judgment or order that resolves only part of a single claim may not be certified as final under N.D.R.Civ.P. 54(b).

Zaiser v. Jaeger 2012 ND 221
Docket No.: 20120346
Filing Date: 10/23/2012
Case Type: Original Proceeding - Civil - Writ of Prohibition
Author: Kapsner, Carol

Highlight: The Secretary of State may not count elector signatures on initiative petitions accompanied by circulator affidavits that falsely swear each elector signature was executed in circulator's presence and each elector signature is the genuine signature of the individual whose name it purports to be.

Moseng v. Frey, et al. 2012 ND 220
Docket No.: 20120226
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: A plaintiff cannot recover damages for emotional distress resulting from an affair between the plaintiff's spouse and a third party.

Wenco v. EOG Resources, Inc., et al. 2012 ND 219
Docket No.: 20120194
Filing Date: 10/23/2012
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: If a mineral owner who owns a mineral interest subject to an outstanding royalty interest executes a mineral deed with a warranty clause to a party conveying mineral acres or interests in oil, gas and other minerals in and under without any reference to the outstanding royalty interest, the retained mineral interest of the mineral owner alone bears the outstanding royalty if the interest is large enough to satisfy the royalty interest.
Decisions are pronounced by a majority of the Supreme Court.
Although the existence or absence of waiver is generally a question of fact, the issue becomes a question of law if reasonable persons could draw only one conclusion from the circumstances.