Opinions

Snyder v. Snyder 2010 ND 161
Docket No.: 20100021
Filing Date: 8/20/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A divorcing party near retirement is not per se entitled to a reduced support obligation upon retirement. When substantial uncertainty surrounds a future retirement, the proper remedy is to move for modification upon retirement.
A district court's order requiring security for a spousal support obligation is reviewed for an abuse of discretion.
Requiring security for a spousal support obligation is only appropriate after considering the circumstances of a case. The circumstances to be considered include an award of permanent support, the duration of a marriage, the obligee's age and marketable skills, an award of income-producing property, the existence of potential security, and the cost of obtaining security.

Matter of J.D.F. (CONFIDENTIAL) 2010 ND 160
Docket No.: 20100051
Filing Date: 8/20/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: Rule 2.2, N.D.R.App.P., applies only to appeals from orders terminating parental rights.
The court may terminate the parental rights of a parent in connection with an adoption proceeding if the parent has abandoned the child.
Whether a child has been abandoned is a question of fact, and the district court's findings will not be reversed on appeal unless they are clearly erroneous.
A guardian ad litem is not a parenting investigator and is not required to write a report.
The court has discretion in allocating a guardian ad litem's expenses.

Estate of Cashmore 2010 ND 159
Docket No.: 20090315
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: Once a final judgment or order has been entered approving a final accounting and distribution of estate property, the estate proceedings are concluded and the parties are not authorized to file a petition to approve an amended final accounting under the statute.
When there is a substantial, unanticipated change in the value of an asset after trial but before distribution of the property, the proper remedy is a motion to reopen to produce additional evidence at a hearing.
The reasonable amount of personal representative's fees and attorney's fees to be allowed is left in the sound discretion of the district court.

Lechler v. Lechler 2010 ND 158
Docket No.: 20090370
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In a custody dispute, a court may interview children in chambers provided no party objects.
Parents have the right to use reasonable force to discipline their children.

Interest of M.G. (CONFIDENTIAL) 2010 ND 157
Docket No.: 20100207
Filing Date: 8/17/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Sandstrom, Dale

Highlight: Long-term and intensive treatment for a parent is not required if it cannot be successfully undertaken in time to enable the children to be returned to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.

Praus v. Praus 2010 ND 156
Docket No.: 20090354
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Procedural unconscionability focuses on the formation of a settlement agreement and the fairness of the bargaining process, while substantive unconscionability focuses on the harshness or one-sidedness of the agreement's provisions.
A motion for relief from a judgment is not intended to be used to relieve a party from free, calculated, and deliberate choices he or she has made.

Zutz, et al. v. Kamrowski, et al. 2010 ND 155
Docket No.: 20090392
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: Under Minnesota law, a county attorney's statutory duties include providing advice to county commissioners, and an absolute privilege attaches to allegedly defamatory statements made in a contract investigator's report to a county attorney on matters involved in a county commission's request for advice.

Matter of A.M.W. (CONFIDENTIAL) 2010 ND 154
Docket No.: 20100013
Filing Date: 8/17/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Kapsner, Carol

Highlight: A party seeking termination of the parent-child relationship in the context of an adoption must prove the elements necessary to support termination by clear and convincing evidence.
Abandonment of a child is a question of fact, which will not be reversed on appeal unless it is clearly erroneous.

Kortum, et al. v. Johnson, et al. (Cross-Ref w/20070186) 2010 ND 153
Docket No.: 20090275
Filing Date: 8/17/2010
Case Type: Appeal - Civil - Corporations
Author: Crothers, Daniel John

Highlight: Issues which are beyond the scope of a remand in a prior appeal will not be addressed in a subsequent appeal after remand.
Under the law of the case doctrine, a party cannot on a second appeal relitigate issues which were resolved by the Court in a first appeal or which would have been resolved had they been property presented in the first appeal.

State v. Hammer 2010 ND 152
Docket No.: 20100025
Filing Date: 8/17/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A bank customer does not have a reasonable expectation of privacy in bank records, and the Fourth Amendment does not apply when the government obtains the customer's records from the bank by subpoena.
Before administrative proceedings are initiated, Workforce Safety & Insurance may obtain bank records as part of an investigation through an administrative subpoena duces tecum.
An administrative proceeding for the forfeiture of disability and medical benefits is civil in nature, and subsequent criminal prosecution for workers compensation fraud is not double jeopardy.