Opinions

Matter of S.E. (Confidential) 2012 ND 168
Docket No.: 20120161
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Adoption
Author: Maring, Mary

Highlight: A trial court may not enter an order or judgment that affects the merits of issues properly on appeal.
Dismissal of a petition for adoption is not proper, despite a technical defect in the petition, if the party from whom consent is sought has notice of the petition and can timely exercise its ability to withhold consent.

Rudnick v. Rode 2012 ND 167
Docket No.: 20120076
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The district court must comply with the procedural requirements in N.D.R.Ct. 8.2 when it issues an ex parte interim order, and it must find there are exceptional circumstances justifying the order based on evidence presented by affidavit.
A party moving to modify primary residential responsibility more than two years after a prior order must prove a material change of circumstances has occurred and modification is necessary to serve the child's best interests.
Evidence of child abuse is a material change of circumstances.
A parent is justified in using reasonable force to discipline a child as long as the force does not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
In considering whether a modification of residential responsibility is necessary to serve the child's best interests, the district court must gauge the best interest factors against the backdrop of the stability of the child's relationship with the custodial parent.

Smestad v. Harris (cross-ref. with 20100216) 2012 ND 166
Docket No.: 20120051
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Absent specific instructions from this Court, a district court deciding an issue on remand must exercise its discretion when determining the procedure to follow.
An individual who has performed in accordance with a contract that is unenforceable under the statute of frauds may be entitled to the equitable remedy of restitution.

Falkenstein, et al. v. Dill, et al. 2012 ND 165
Docket No.: 20120113
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Debtor/Creditor
Author: Kapsner, Carol

Highlight: The substance of a complaint is considered to determine whether the complaint sufficiently raised a claim.
A district court does not abuse its discretion in effectively denying a motion to amend a pleading when such an amendment would result in prejudice to the opposing party.
The least-sophisticated-consumer standard applies in determining whether a debt collector's communication violates the Fair Debt Collection Practices Act.

Mickelson v. Workforce Safety and Insurance 2012 ND 164
Docket No.: 20110232
Filing Date: 8/16/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: Injuries attributable to a preexisting injury, disease, or other condition are compensable under workers' compensation law when employment substantially accelerates the progression or substantially worsens the severity of the injury, disease, or other condition.
Employment substantially accelerates the progression or substantially worsens the severity of a preexisting injury, disease, or other condition when the underlying condition likely would not have progressed similarly in the absence of employment.

Schulte v. Kramer (cross-ref. 20050222) 2012 ND 163
Docket No.: 20110231
Filing Date: 8/16/2012
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: To justify a modification of spousal support, the moving party must demonstrate a material change in financial circumstances. A material change is one that substantially affects the financial abilities or needs of the parties and was not contemplated by the parties at the time the original divorce decree was entered.
Once a trial court finds a material change in circumstances exists, it must examine the reason for the material change to determine whether modification of support is warranted. A self-induced decline in income does not, in the absence of a substantial showing of good faith or cause, constitute such an exceptional change in circumstances as to afford the required basis for modifying an alimony award.
An item in a divorce separation agreement or divorce judgment is more likely spousal support than part of the division of property if it is directed to be monthly, unsecured, and terminable upon designated events.

Kruckenberg v. State 2012 ND 162
Docket No.: 20110333
Filing Date: 8/1/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Under N.D.R.Civ.P. 52(a) of the North Dakota Rules of Civil Procedure, in an action without a jury, the court must find the facts specially and state its conclusions of law separately.
A court's findings of fact may be sufficient under N.D.R.Civ.P. 52(a) if they provide this Court with an understanding of the trial court's factual basis used in reaching its decision.

Disciplinary Board v. Lawler 2012 ND 161
Docket No.: 20120297
Filing Date: 7/26/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Disciplinary Board v. Hann (CONSOLIDATED W/ 20110247 & 20110248) 2012 ND 160
Docket No.: 20110246
Filing Date: 7/26/2012
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction.
Due weight is given to the disciplinaryboard's findings, conclusions, and recommendations.
Depending on the agreement between a lawyer and client, a "nonrefundable" retainer may violate the Rules of Professional Conduct.

Mackey v. State (cross-reference 20100377) 2012 ND 159
Docket No.: 20120119
Filing Date: 7/26/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A court need not personally address a defendant when establishing the factual basis for the defendant's guilty plea.
The lack of a factual basis for a guilty plea is a fundamental defect that calls into question the validity and voluntariness of the plea.
The ideal means of establishing the factual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant's own words, what the defendant did that he believes constitutes the crime to which he is pleading guilty.
A trial court may conclude that a factual basis exists from anything that appears on the record, including the facts gleaned from the plea agreement and plea colloquy, the factual findings relied upon in the presentence report, and any inferences fairly drawn from the evidence presented both post-plea and at the sentencing hearing.