Opinions

Paulson v. Paulson (Cross-reference w/20090225) 2011 ND 159
Docket No.: 20100399
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A spousal support determination is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.
Issues not raised in the district court may not be raised for the first time on appeal.

Leverson v. Leverson 2011 ND 158
Docket No.: 20100396
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Under the law of the case doctrine, a court's decision on legal issues should govern the same issues in later stages of the same case.
Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished.
Agreements between divorcing parties are encouraged and stipulated spousal support awards should be changed only with great reluctance.

State v. Clark (consolidated w/20100373) (cross-reference 20090235) 2011 ND 157
Docket No.: 20100372
Filing Date: 8/18/2011
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: When sentences for separate offenses are merged under N.D.C.C. 12.1-32-11(1), they run concurrently and remain separate terms of imprisonment.
A delay in time between when a petition to revoke probation is filed and an arrest warrant is executed generally does not violate the probationer's due process rights, unless the probationer can show he was prejudiced by the delay.

Martinson v. Martinson 2011 ND 156
Docket No.: 20100339
Filing Date: 8/18/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In determining whether to award attorney fees and costs in a divorce action, the court must balance one party's needs against the other's ability to pay, and fault is a consideration only to the extent one party has unreasonably escalated the fees and costs.

State v. Pederson (Consolidated w/20100365) 2011 ND 155
Docket No.: 20100364
Filing Date: 8/18/2011
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: When police have probable cause to arrest a suspect, the exclusionary rule does not bar the prosecution's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home and police unlawfully entered the home.
During an interrogation, a suspect must unambiguously invoke his right to counsel to stop the interrogation.

Brigham Oil et al. v. Lario Oil et al. (consolidated w/20110016) 2011 ND 154
Docket No.: 20100211
Filing Date: 8/15/2011
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: Property passes upon death, not upon distribution, subject to administration of the estate.
Family settlement agreements are binding only on the parties to the agreement.
Whether intervention is sought permissively or as a matter of right, the application for intervention must be timely.
The failure to join an indispensable party or the failure to allow an indispensable party to intervene does not render a judgment void.

State v. Gefroh 2011 ND 153
Docket No.: 20100391
Filing Date: 8/15/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The automobile exception to the warrant requirement does not justify the warrantless search of a person.

Interest of K.B., a child (CONF.)(Consol. w/20110093-20110095) 2011 ND 152
Docket No.: 20110092
Filing Date: 8/11/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: "Proper parental care" means the parents' conduct in raising their children must satisfy the minimum standard of care which the community will tolerate.
The definition of a "deprived child" is broad enough to encompass a child whose parent, while never having had the opportunity to care for the child, is shown to be presently incapable of providing proper parental care for the child.
All children in a particular home environment may be found deprived, despite varying degrees of deprivation among the children. A court need not wait for the happening of tragic events to protect a child, particularly when a sibling has been found to deprived.
Abuse of one child is relevant to the care a parent will provide to other siblings.

State v. Sommer 2011 ND 151
Docket No.: 20100348
Filing Date: 8/11/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: The dispositive question concerning application of the automobile exception is whether probable cause supported the search.
The recognition that vehicles are inherently mobile and that vehicles garner a lesser expectation of privacy excuses the need for a warrant.

Gustafson, et al. v. Poitra, et al. 2011 ND 150
Docket No.: 20100277
Filing Date: 8/10/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The appellate court may consider whether the district court had subject matter jurisdiction and may consider the issue sua sponte.
A state court does not have subject matter jurisdiction where a non-Indian claimant initiates an action against Indian defendants over a lease of fee land owned by the Indian defendants within the exterior boundaries of the reservation.