Opinions

Estate of Vestre 2011 ND 144
Docket No.: 20100400
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: A trial court has broad discretion to grant relief from the waiver of the right to a jury trial.
If a case goes to trial after a motion for summary judgment is denied, the question whether the trial court erred in denying summary judgment is moot; the appropriate question on appeal is whether the trial court erred in denying the movant's subsequent motion for judgment as a matter of law.
To establish undue influence, the person challenging the will must prove: 1) a testator subject to undue influence; 2) the existence of the opportunity to exercise undue influence; 3) a disposition to exercise undue influence; and 4) a result that appears to be the effect of undue influence.

State v. Gonzalez 2011 ND 143
Docket No.: 20110051
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Appellate review of a sentencing court's decision is confined to whether the sentencing court acted within the limits prescribed by statute or substantially relied on an impermissible factor.

Interest of D.J. (CONFIDENTIAL) 2011 ND 142
Docket No.: 20100403
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A juvenile court may require production of court-ordered reports or evaluations for purposes of making necessary findings on the requirements for a juvenile to register as a sexual offender.

State v. Kleppe (consolidated w/20110029) 2011 ND 141
Docket No.: 20100354
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: The defense of depredation does not apply to the offense of unlawfully taking and possessing big game because deer is not a fur-bearer.
The offense of unlawfully taking and possessing big game is a strict liability offense because the statute defining the offense does not contain a culpability requirement. A statute establishing a strict liability offense, however, does not always preclude an affirmative defense.
A defendant may be entitled to a jury instruction on excuse and his conduct may be excused if the evidence shows the defendant believed the facts were such that his conduct was necessary and appropriate for any of the purposes that would establish a justification or excuse under N.D.C.C. ch. 12.1-05, even though his belief was mistaken. A mistaken belief of the law is rarely available as a defense and is generally precluded when the offense is a strict liability offense that contains no culpability requirement.
At a restitution hearing, the State has the burden of proving the amount of restitution by a preponderance of the evidence.

Silbernagel, et al. v. Silbernagel, et al. (Consol. w/ 20100394 & 20100395) 2011 ND 140
Docket No.: 20100393
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: When a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.
A judgment is construed to give effect to each and every part of it and bring all different parts into harmony as far as can be done by a fair and reasonable interpretation.
Parties' objective manifestations from a settlement agreement and judgment, rather than their secret or subjective manifestations of intent, control the interpretation of the judgment.

State v. Stroh 2011 ND 139
Docket No.: 20100157
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The admissibility of an Intoxilyzer test result is governed by N.D.C.C. 39-20-07(5).
Fair administration of an Intoxilyzer test may be established by proof that the State Toxicologist's approved method for conducting the test has been scrupulously followed. However, "scrupulous" compliance does not mean "hypertechnical" compliance.
The admissibility of a test result for alcohol concentration is a preliminary question left to the discretion of the trial court.
Observing the person to be tested is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.

Vanlishout v. ND Dept. of Transportation 2011 ND 138
Docket No.: 20110017
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: Actual physical control does not require that the defendant be able to instantaneously operate the vehicle. Rather, defendant must be able to manipulate the controls of the vehicle and must be under the influence of intoxicating liquor, drugs, or other substances.

State v. McElya 2011 ND 137
Docket No.: 20100349
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Theft
Author: Kapsner, Carol

Highlight: Double jeopardy is a defense that may be waived and must be raised at some point in proceedings before the district court.

Crandall v. Crandall 2011 ND 136
Docket No.: 20100402
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: The child support guidelines require a parent who does not have primary residential responsibility of a child to pay child support to the parent awarded primary residential responsibility.
Financial misconduct and dissipation of assets are grounds for an unequal property distribution.

Willits v. Job Service of ND, et al. 2011 ND 135
Docket No.: 20100375
Filing Date: 7/13/2011
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: To be eligible for unemployment benefits, the employee must make reasonable efforts to preserve one's employment.
An employee who voluntarily quits before the employer has been given a reasonable chance to resolve identified problems is not entitled to unemployment benefits.

Krueger v. Krueger 2011 ND 134
Docket No.: 20100264
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: While the district court may not solely rely on a child's preferences regarding visitation, they may be a relevant consideration in the best interests of the child analysis.
In calculating a parent's child support obligation, the district court must clearly set forth how it arrived at a net income figure.

Gussiaas v. Neustel (cross-reference 20100086) 2011 ND 133
Docket No.: 20100386
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Change of primary residential responsibility is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Smith v. Martinez 2011 ND 132
Docket No.: 20100309
Filing Date: 7/13/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A court must address the presumption against awarding primary residential responsibility to the perpetrator of domestic violence when there is evidence of domestic violence on the record.

State v. Aabrekke 2011 ND 131
Docket No.: 20100170
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, but may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In considering whether evidence of prior crimes, wrongs, or bad acts is admissible, a court must apply a three-step analysis to determine: (1) the purpose for which the evidence is introduced; (2) that the evidence of the prior acts is substantially reliable or clear and convincing; and (3) in criminal cases that there is proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented without consideration of the evidence of the prior acts.
A court must give a cautionary instruction about the limited purpose for the use of prior bad acts evidence and must further determine whether the probative value of the evidence substantially outweighs any possible prejudicial effect of the evidence.

State v. Ennen 2011 ND 130
Docket No.: 20110003
Filing Date: 7/13/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for surreptitious intrusion is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Interest of A.S. (CONFIDENTIAL) (CONSOL. W/ 20110117 - 20110120) 2011 ND 129
Docket No.: 20110116
Filing Date: 7/13/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author:

Highlight: Juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Nemec v. Disciplinary Board 2011 ND 128
Docket No.: 20110136
Filing Date: 7/11/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer reinstatement ordered.

State v. Blunt (Cross-reference w/20070247 & 20090110) 2011 ND 127
Docket No.: 20100308
Filing Date: 6/28/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: The district court has discretion in applying a remedy when a violation of the discovery rules has been shown, and the court's decision will not be reversed on appeal unless the court abuses its discretion.
The court's decision on a discovery violation is reversible error only if the defendant has been denied a substantial right, and a substantial right has not been denied if the defendant is not significantly prejudiced.

Murchison v. State (Cross-reference 20030328) 2011 ND 126
Docket No.: 20100281
Filing Date: 6/27/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A court may deny an application for post-conviction relief if the same or similar issues supporting the application were considered on a direct appeal from a criminal judgment and are barred by res judicata.
A defendant bears a heavy burden in proving he received ineffective assistance of counsel, and he may be denied relief where he failed to prove any prejudice resulted.

Day v. Haskell, et al. 2011 ND 125
Docket No.: 20110096
Filing Date: 6/24/2011
Case Type: Original Proceeding - Criminal - Writ of Supervision
Author: Maring, Mary

Highlight: When a criminal proceeding terminates after jeopardy attaches but before a verdict, double jeopardy does not prohibit the retrial of the accused if there was a manifest necessity for granting the mistrial.
There is no mechanical formula for deciding whether the termination of a criminal trial was supported by a manifest necessity, but the court should consider whether counsel were afforded an opportunity to be heard on the issue, whether alternatives to a mistrial were explored, and whether the court's decision was made after sufficient reflection.

Kaspari v. N.D. Dep't. of Human Services 2011 ND 124
Docket No.: 20100379
Filing Date: 6/24/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: VandeWalle, Gerald

Highlight: Administrative regulations are derivatives of statutes and are construed under rules for statutory construction.
A Medicaid applicant's recipient liability is the amount of monthly net income remaining after all appropriate deductions, disregards, and Medicaid income levels specified in the applicable Medicaid regulations have been allowed, and an applicant is not entitled to deductions for mortgage interest and real estate taxes paid for the applicant's interest in a life estate.

State v. Seewalker 2011 ND 123
Docket No.: 20100201
Filing Date: 6/24/2011
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Order denying motion to withdraw guilty pleas is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Zink, et al. v. Enzminger Steel LLC 2011 ND 122
Docket No.: 20100359
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: In the cautious exercise of its discretion, a district court may unilaterally dismiss a complaint for failure to state a valid claim. The court must, however, give the parties notice of its intentions and allow for an opportunity to respond.
If a motion to dismiss demands proof outside of the pleadings, the motion is treated as one for summary judgment.

Godon v. Kindred School District 2011 ND 121
Docket No.: 20100356
Filing Date: 6/23/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A written contract can be altered by a contract in writing or by an executed agreement, and the agreement to alter the terms of the contract must generally be supported by new or additional consideration.
A party asserting breach of contract has the burden of proving the elements of a prima facie case for breach, which are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the breach.
Frustration of purpose occurs when after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made.
Class-of-one protection does not apply to public employees under the equal protection clause of the United States Constitution.

In the Interest of L.T., a child (CONFIDENTIAL) 2011 ND 120
Docket No.: 20100329
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Sandstrom, Dale

Highlight: The statute restricting a parent's right to court-appointed counsel during certain phases of a juvenile delinquency proceeding does not violate the parent's constitutional right to equal protection under law.
A juvenile court is not required to inform a parent of the collateral consequences of a juvenile's admissions to charges.

Interest of R.A. (CONFIDENTIAL) 2011 ND 119
Docket No.: 20100343
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A juvenile case must be transferred to district court if the child was fourteen years of age or more at the time of the alleged conduct and the court determines there is probable cause to believe the child committed the offense of gross sexual imposition of a victim by threat of imminent death, serious bodily injury, or kidnapping.
Probable cause is a minimal burden of proof, and probable cause exists if there is a definite probability based on substantial evidence the offense has been committed.
Imminent means near at hand, mediate rather than immediate, close rather than touching, on the point of happening, threatening, menacing, or perilous.
The juvenile transfer statute requires a juvenile court to transfer the offense of gross sexual imposition by threat of imminent death, serious bodily injury, or kidnapping, and does not require the threat be of physical harm to the victim.

Interest of T.S. (CONFIDENTIAL) 2011 ND 118
Docket No.: 20100322
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: The legislature has the power to determine the age of criminal responsibility. Children over the age of seven are presumed capable of committing a criminal offense.
Juveniles have a due process right not to be subjected to the adjudicative stage of juvenile proceedings while incompetent. A juvenile court must hold a competency hearing when evidence establishes sufficient doubt as to the juvenile's competency to proceed.

State v. Howard 2011 ND 117
Docket No.: 20110008
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A court does not abuse its discretion in denying an application for post-conviction relief when the factual basis to support the defendant's plea of guilty to delivery of a controlled substance establishes the defendant admitted to transferring the controlled substance to the buyer in his vehicle.

State v. Hinojosa 2011 ND 116
Docket No.: 20100218
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: When a defendant, through his own actions or the actions of his attorney, substantially contributes to the State's not bringing charges to trial within the 90-day period required by the Uniform Mandatory Disposition of Detainers Act, the defendant cannot merely rely upon expiration of the 90-day period to have the charges against him dismissed.
Good cause for delay exists when defense counsel requires additional time for preparation and investigation to ensure that a defendant receives effective assistance of counsel.
A defendant who claims insufficient evidence bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

G.K.T. v. T.L.T., et al. (CONFIDENTIAL) 2011 ND 115
Docket No.: 20100381
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: In assessing a claim for intentional infliction of emotional distress, the district court must first determine if, as a matter of law, the defendant's conduct is sufficiently extreme and outrageous to permit recovery; but if the district court determines that reasonable people could differ, the question of whether the defendant's conduct is sufficiently extreme and outrageous is left to the trier-of-fact.
Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

State v. Midell 2011 ND 114
Docket No.: 20100286
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: In light of the limited purpose and scope of a preliminary hearing, the district court has the authority to assess the credibility of witnesses only when, as a matter of law, the testimony is implausible or incredible.
A mere conflict of testimony in a preliminary hearing is a question of fact left for the jury, and that the district court must draw the inference favorable to the prosecution.
Section 12.1-20-03(1)(c), N.D.C.C., does not require the victim to have been actually unaware that a sexual act was being committed upon her; it requires the defendant to have actually known, or have reasonable cause to believe, that the victim was unaware a sexual act was being committed upon her.

F/S Manufacturing v. Kensmoe 2011 ND 113
Docket No.: 20100167
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A judgment is canceled of record ten years after its entry if it has not been renewed, or after twenty years if it has been renewed.
A judgment creditor may renew a judgment either by commencing a separate action to renew or by filing an affidavit under the simplified statutory procedure.
Under North Dakota law, the statute of limitations for an action against a person may be tolled based on that person's absence from the state, but the time for filing a affidavit of renewal is not tolled.
Under North Dakota law, the time for the judgment creditor to file a renewal affidavit is not tolled by the judgment debtor's bankruptcy proceedings.

Varriano v. Varriano 2011 ND 112
Docket No.: 20100278
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The factors a court should rely on in determining whether two people cohabited include whether a common residence was established; whether there was a long-term sexual, intimate, or romantic involvement; whether there were shared assets or common bank accounts; whether there was joint contribution to household expenses; and whether there was a recognition of the relationship by the community as a relationship including cohabitation.
There is no one factor that is an absolute prerequisite for a finding of cohabitation.

Interest of T.T., a Child (CONFIDENTIAL) 2011 ND 111
Docket No.: 20110066
Filing Date: 6/21/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: A sequestration order does not prohibit out-of-court communication unless the court specifically states the communication is prohibited.
Social services can pursue termination of parental rights and reunification of a parent and child at the same time.

Disciplinary Board v. Stensland 2011 ND 110
Docket No.: 20100304
Filing Date: 6/21/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: The Supreme Court defers to a hearing panel's findings on the credibility of witnesses in a disciplinary proceeding because the hearing panel had the opportunity to observe the witnesses' demeanor and hear the witnesses testify.
Sequestration of witnesses is intended to prevent witnesses from tailoring their testimony in light of the testimony of other witnesses and to permit discovery of false testimony and other credibility problems.
Each disciplinary matter must be considered on its own facts when deciding the appropriate sanction to apply.

Landrum v. Workforce Safety and Insurance 2011 ND 108
Docket No.: 20100374
Filing Date: 6/21/2011
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Administrative res judicata must be applied in light of N.D.C.C. 65-05-04, which grants WSI continuing jurisdiction to review an award of benefits.
WSI's continuing jurisdiction is not contingent on the presence of new medical evidence.
The underlying purpose of administrative res judicata, to preserve scarce administrative resources and avoid wasteful expense and delay, guides the application of the doctrine.
The claimant bears the burden of proving by a preponderance of the evidence a continuing entitlement to benefits.

Becker v. Becker 2011 ND 107
Docket No.: 20100225
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court must comply with the child support guidelines to determine an obligor's child support obligation, and a court errs as a matter of law if it fails to comply with the guidelines.
A court must properly find an obligor's net income, applying the child support guidelines, and must make specific findings about the net income and how it was determined.
An unemployed or underemployed child support obligor's income cannot be imputed if the obligor's actual gross earnings from all types of income exceed the greatest amount of income that could be imputed.

State v. Zottnick (CONSOLIDATED W/20110069) 2011 ND 106
Docket No.: 20100111
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment for simple assault-domestic violence (second offense or more) and order denying post-conviction relief application affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Matter of J.M. (CONFIDENTIAL) 2011 ND 105
Docket No.: 20100398
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order continuing commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Rogers 2011 ND 104
Docket No.: 20110033
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Amended criminal judgment and order revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Shoup 2011 ND 103
Docket No.: 20110005
Filing Date: 6/21/2011
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Criminal judgment entered after a jury found the defendant guilty of assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of C.L.(CONFIDENTIAL) 2011 ND 102
Docket No.: 20110111
Filing Date: 6/21/2011
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order granting motion to terminate parental rights summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Application of Bjerke 2011 ND 101
Docket No.: 20110022
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Other
Author:

Highlight: Order granting application to change minor child's name summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Garten v. State 2011 ND 100
Docket No.: 20100382
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: The district court judgment denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Quilt 2011 ND 99
Docket No.: 20100397
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: A district court order civilly committing a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Johnson v. State (consolidated w/20110042) 2011 ND 98
Docket No.: 20110041
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment summarily dismissing application for post-conviction relief is affirmed under N.D.R.App.P. 35.1(a)(6).

Estate of Dionne (cross-reference w/20090016) 2011 ND 97
Docket No.: 20100353
Filing Date: 6/21/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Judgment that parties intended to convey the entirety of certain real estate summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Disciplinary Board v. McDonagh 2011 ND 96
Docket No.: 20110167
Filing Date: 6/10/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Riverwood Commercial Park, et al. v. Standard Oil Co., et al. (Cross w/20060122 2011 ND 95
Docket No.: 20100268
Filing Date: 5/20/2011
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Grants of interests in real property are interpreted in like manner with contracts in general.
The principal difference between an easement and a license is that a license is revocable at will.
If extrinsic evidence is conclusive and undisputed, the determination of the meaning of a contract is a function for the court to resolve as a matter of law.

Spratt v. MDU Resources Group, Inc., et al. 2011 ND 94
Docket No.: 20100266
Filing Date: 5/18/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Crothers, Daniel John

Highlight: The modified McDonnell Douglas test used in employment discrimination cases is inapplicable when the plaintiff presents direct evidence of discrimination.
To survive a motion for summary judgment in an age discrimination case, there must be some showing beyond the mere fact that the terminated employee was over age forty.

Workforce Safety & Insurance v. Auck (cross-reference 20090223) 2011 ND 93
Docket No.: 20100330
Filing Date: 5/13/2011
Case Type: Appeal - Administrative - Workers Compensation
Author: Crothers, Daniel John

Highlight: An administrative agency's position is substantially justified if a reasonable person could think the position is correct and the position has a reasonable basis in law and fact.

Kasowski v. N.D. Dep't of Transportation 2011 ND 92
Docket No.: 20100232
Filing Date: 5/12/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: The limited statutory right of a driver to consult with an attorney before submitting to a chemical test for intoxication attaches only after an arrest.
A driver under arrest for a DUI must make an affirmative mention of the need for an attorney in order to invoke his right to contact an attorney.

Smestad v. Harris 2011 ND 91
Docket No.: 20100216
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Failure to adequately brief arguments on appeal precludes relief on those issues.
The district court is the best credibility evaluator in cases of conflicting testimony.
If the aggregate amount of a series of loans is $25,000 or more, an oral agreement for the loans is unenforceable.

Locken v. Locken, et al. 2011 ND 90
Docket No.: 20100297
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Under the statute of limitations to cancel or enforce a contract for deed, the due date of the last payment on the indebtedness secured by the contract for deed means the record date the contract for deed was satisfied.

Interest of T.B. (CONFIDENTIAL) 2011 ND 89
Docket No.: 20100267
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Juvenile Law
Author:

Highlight: Juvenile court referee's order and juvenile court's order are summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Kinsella 2011 ND 88
Docket No.: 20100355
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A defendant who does not stand on his motion for a judgment of acquittal at the close of the prosecution's case in chief, but chooses to introduce evidence in his defense, allows a reviewing court to examine the evidence as a whole, including the evidence offered by the defendant.

First International Bank & Trust v. Peterson, et al. 2011 ND 87
Docket No.: 20100280
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: In an action for declaratory, injunctive, or other prospective relief, an association may have associational standing to bring a suit on behalf of its members if: (1) its members have standing to sue in their own right; (2) the interests the association seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested require the participation of individual members in the lawsuit.
A condominium developer may be responsible for the condominium association and board of manager's duties and obligations if the developer controls the association and fails to create a board of managers.

Citibank (South Dakota) v. Peterson 2011 ND 86
Docket No.: 20100345
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Rule 60(b), N.D.R.Civ.P., gives courts discretion to provide relief from judgments; however, this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made.
The correct way to supplement an incomplete record on appeal is to make a motion to the district court under Rule 10(b), N.D.R.App.P.

State v. Duncan 2011 ND 85
Docket No.: 20100323
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When a defendant does not object to alleged prosecutorial misconduct at trial, the Court's review is limited to determining whether the prosecutor's conduct prejudicially affected defendant's substantial rights, so as to deprive him of a fair trial.
A prosecutor's improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.

State v. Zottnick 2011 ND 84
Docket No.: 20100310
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Other
Author: VandeWalle, Gerald

Highlight: A defendant may be entitled to a jury instruction on excuse and his conduct may be excused if there is evidence that the defendant believes the facts are such that conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under the criminal code, even though the defendant's believe is mistaken.

A.R. Audit Services, Inc. v. Ulledahl 2011 ND 83
Docket No.: 20110002
Filing Date: 5/11/2011
Case Type: Appeal - Civil - Debtor/Creditor
Author: Per Curiam

Highlight: Summary judgment awarding amount owed for medical services is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Erhart 2011 ND 82
Docket No.: 20100384
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Criminal judgment for gross sexual imposition summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Beane (Consolidated w/20100341) 2011 ND 81
Docket No.: 20100340
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgments for possession of a controlled substance and possession of drug paraphernalia are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Beane (cross-reference S.C. #20090013) 2011 ND 80
Docket No.: 20100380
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Criminal judgment for possession of drug paraphernalia summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Mudge (Consolidated w/20100369-20100371) 2011 ND 79
Docket No.: 20100368
Filing Date: 5/11/2011
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgment and order denying requests for modification of sentence summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Blomdahl v. Blomdahl 2011 ND 78
Docket No.: 20100053
Filing Date: 4/13/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A motion for contempt under N.D.C.C. 14-05-25.1 is not an "action upon the judgment" for purposes of applying the ten-year statute of limitations in N.D.C.C. 28-01-15.
For a contempt finding under N.D.C.C. 14-05-25.1, there must be a violation of a valid and existing court order, judgment, or decree.

Christensen v. N.D. Dep't of Human Services 2011 ND 77
Docket No.: 20100263
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: An applicant for Medicaid benefits has the responsibility to provide information sufficient to establish eligibility and has the burden of proving an asset is not actually available.

Matter of Wolff 2011 ND 76
Docket No.: 20100290
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: In civil commitment cases, the State must clearly show the committed individual's personality disorder is likely to manifest itself in a serious difficulty in controlling his or her behavior.
The conduct evidencing the committed individual's serious difficulty in controlling his or her behavior need not be sexual in nature.

Schumacker v. Schumacker 2011 ND 75
Docket No.: 20100282
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Merely conflicting allegations in affidavits and moving papers for a change in primary residential responsibility of parties' children must be resolved at an evidentiary hearing, unless the party opposing the movant has conclusively proved the movant's allegations are insufficient or have no credibility.
Pre-divorce conduct can be relevant for a change of custody when the divorce was stipulated and the trial court was unaware of the facts at the time of the stipulation.
Inadmissible hearsay statements are not competent evidence supporting a prima facie case for a change of primary residential responsibility.
Statements by declarants on their state of mind and emotion fit an exception to the hearsay rule and are competent evidence.

Swanson, et al. v. Swanson, et al. 2011 ND 74
Docket No.: 20090289
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: Every person who has actual notice of circumstances sufficient to put a prudent person on inquiry and who omits to make such inquiry with reasonable diligence is deemed to have constructive notice of all facts such inquiry would have disclosed had it been properly pursued.
The information sufficient to put a prudent person on inquiry may consist of a statement made by the claimant of the adverse ownership right. The information need not be so full or detailed as to communicate a complete description of the adverse interest if it creates a reasonable belief a conflict right exists as a fact.
To comply with the requirement for a reasonably diligent inquiry, a prospective purchaser with actual notice of circumstances sufficient to put a prudent person on inquiry must, at the very least, conduct a record search. If a purchaser fails to make a reasonably diligent inquiry, the purchaser cannot claim the protection of a good-faith purchaser status.

Matter of J.G. (CONFIDENTIAL) 2011 ND 73
Docket No.: 20100366
Filing Date: 4/12/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Order denying petition for discharge from commitment as a sexually dangerous individual summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Trowbridge 2011 ND 72
Docket No.: 20100363
Filing Date: 4/12/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Order granting motion to reduce sentence summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Disciplinary Board v. Rozan 2011 ND 71
Docket No.: 20110031
Filing Date: 4/6/2011
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Discipline ordered for lawyer.

Thompson, et al. v. Schmitz, et al. (cross-reference w/20080191) 2011 ND 70
Docket No.: 20100248
Filing Date: 3/28/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: An award of attorney's fees and pre-judgment interest is permitted under the Business Corporations Act when a district court finds an officer or director of a corporation violates fiduciary duties or finds a party to have acted arbitrarily, vexatiously, or otherwise not in good faith.
The district court may award expert witness fees, including fees for experts who do not testify, under the Business Corporations Act.

Kost v. Kraft 2011 ND 69
Docket No.: 20100159
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The receipt and acceptance of leased goods need not be exclusively referable to an alleged oral lease agreement, and conduct consistent with an oral agreement is sufficient to take a claimed oral lease agreement out of the statute of frauds even though the conduct is not inconsistent with some other plausible arrangement between the parties.
A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law.

Loper v. Adams 2011 ND 68
Docket No.: 20100101
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: The district court has discretion in determining appropriate sanctions for a party's failure to timely supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert's testimony.
A party moving for enlargement of time under N.D.R.Civ.P. 6(b)(2) after the original deadline has passed has the burden to demonstrate that his failure to timely comply was the result of excusable neglect, and the district court has broad discretion in determining whether to allow additional time.
The determination whether certain conduct is a superseding, intervening cause is a question of fact.

Klug et al. v. City of Minot 2011 ND 67
Docket No.: 20100217
Filing Date: 3/25/2011
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A home rule city may enact ordinances that supersede state laws regulating police pension plans.
A member of a defined benefit plan does not have a claim to particular assets that are part of the general asset pool and is not entitled to a share of the surplus assets.

State v. Norman (cross-ref. 20020172) 2011 ND 66
Docket No.: 20100296
Filing Date: 3/25/2011
Case Type: Appeal - Criminal - Homicide
Author: Per Curiam

Highlight: Appeal from a trial court order denying the State's motion requiring DNA sample summarily dismissed under N.D.R.App.P. 35.1(a)(1) and (a)(7).

Grand Forks Homes, Inc., et al. v. State of North Dakota 2011 ND 65
Docket No.: 20100198
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: The State Board of Equalization has no authority under state law to reclassify locally assessed property as exempt from taxation.
Timely filing of an appeal from a decision of a board of county commissioners is mandatory to invoke a district court's appellate subject matter jurisdiction over the appeal.

Johnson, et al. v. Hovland, et al. 2011 ND 64
Docket No.: 20100043
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: A district court has wide discretion in deciding whether to permit amended pleadings after the time for an amendment has passed, and the court does not abuse its discretion in denying a motion to amend the complaint when a proposed amendment would be futile.
If leave to amend is not sought until after discovery has closed and a summary judgment motion has been docketed, a proposed amendment is properly classified as futile unless the allegations of the proposed amended complaint are supported by substantial evidence.
A party seeking reformation of a written instrument must establish by clear and convincing evidence that the document does not state the parties' intended agreement. Courts grant the high remedy of reformation only upon the certainty of error.

Collection Center v. Bydal 2011 ND 63
Docket No.: 20100093
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A party to a joint obligation who satisfies more than that party's share of the claim against all obligors may require a proportionate contribution from all the parties joined with that party, and disproportionate contribution may be allowed if the parties have agreed to a different allocation on their liability or one of the comakers has received a disproportionate benefit from the transaction.
After an assignment, the assignee of a nonnegotiable chose in action acquires no greater rights than held by the assignor and is ordinarily subject to any setoff or counterclaim available to the obligor against the assignor, and to all other defenses and equities that could have been asserted against the assignor at the time of the assignment.
Under N.D.R.Civ.P. 12(f), the district court has discretion either upon a motion by a party or on its own to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in a pleading.
If a plaintiff files an amended complaint that changes the theory or scope of the case, the defendant may plead as though it were responding to the original complaint and add new counterclaims without requesting leave of court.
Under N.D.R.Civ.P. 13(a), if a claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim, it is a compulsory counterclaim and must be pleaded in response to the opposing party's pleading. Under Rule 13's "opposing party" requirement, when a plaintiff has brought suit in one capacity, the defendant may not counterclaim against the plaintiff in a different capacity.

Prchal v. Prchal 2011 ND 62
Docket No.: 20100128
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Whether contempt has been committed lies within the district court's sound discretion, which will not be overturned on appeal absent a clear abuse of that discretion.
To modify parenting time, the moving party must demonstrate a "material change in circumstances" has occurred since entry of the previous parenting time order and the modification is in the child's "best interests."
The district court has continuing jurisdiction after a divorce judgment has been entered over matters pertaining to parenting rights and responsibilities of the children of the marriage.
Both the decision to appoint a parenting coordinator and to order counseling are committed to the district court's sound discretion.

State v. Tompkins 2011 ND 61
Docket No.: 20100234
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: Law enforcement has no duty to assist an accused in obtaining an independent blood-alcohol test. Once a reasonable request is made for an independent test, however, law enforcement must not interfere to the extent a reasonable opportunity to obtain the test is denied.
In addition to the obligation to pay for all costs associated with the independent blood-alcohol test, N.D.C.C. 39-20-02 affords an accused only the right to have the test performed, to choose the professional to administer the test, and to receive the test results.

Carkuff, et al. v. Balmer, et al. 2011 ND 60
Docket No.: 20100099
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: The language of a 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.
A quitclaim deed conveys only the grantor's interest or title, if any, in property, rather than the property itself.
Generally, after-acquired title by the grantor will not inure to the benefit of the grantee under a quitclaim deed.
Use of the word "grant" in a quitclaim deed which conveyed only a grantor's "right, title and interest" in the property did not operate to pass after-acquired property rights to minerals interests.

Interest of Vondal 2011 ND 59
Docket No.: 20100221
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Under N.D.R.Civ.P. 52(a), a trial court must find the facts specially and state separately its conclusions of law.

Nelson v. State 2011 ND 58
Docket No.: 20100383
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Order summarily dismissing application for post-conviction relief is remanded under N.D.R.App.P. 35(a)(3).

Stephenson v. Stephenson 2011 ND 57
Docket No.: 20100237
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: All property, including retirement accounts, must be included in a marital estate before the court can determine an equitable property division.
When dividing a pension or retirement plan, a court may award the present value of the benefits or it may award a percentage of future payments if the parties cannot agree upon the present value or if there are insufficient assets for a present division.
When parties remarry after a prior divorce, all of the parties' assets become marital property again and are subject to an equitable distribution.

State v. Christian (consolidated w/20100191 & 20100192) 2011 ND 56
Docket No.: 20100190
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: Circumstantial evidence alone can be sufficient to sustain a jury's guilty verdict if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant is guilty beyond a reasonable doubt.
Constructive possession can be inferred from a totality of the circumstances.
Section 19-03.1-23(7), N.D.C.C., prohibits the possession of cocaine, regardless of the amount.

Berger v. N.D. Dept. of Transportation 2011 ND 55
Docket No.: 20100189
Filing Date: 3/22/2011
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A hearing officer conducting an adjudicative administrative proceeding has broad discretion over the progress and conduct of the hearing, including scheduling and continuing the hearing.

Silliman v. All American Biodiesel, Inc. 2011 ND 54
Docket No.: 20100257
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: Res ipsa loquitur for fire damage requires that the accused party had control over the instrumentality that caused the fire, not merely the location of the fire.
Not the mere occurrence of a fire but rather the circumstances under which the fire originated and spread gives rise to the application of res ipsa loquitur.

Lund v. Lund 2011 ND 53
Docket No.: 20100147
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Whether to grant a continuance lies within the sound discretion of the district court, and its decision to deny a motion for a continuance will not be reversed on appeal absent an abuse of discretion.
The mere fact that a judge has previously ruled against a party in the same or a prior proceeding does not demonstrate bias requiring disqualification.

Interest of G.L.D. (CONFIDENTIAL) 2011 ND 52
Docket No.: 20100230
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Kapsner, Carol

Highlight: To preclude discharge from treatment as a sexually dangerous individual, the State must prove by clear and convincing evidence that the committed individual remains a sexually dangerous individual and has serious difficulty controlling his or her behavior.
In reviewing a district court's order denying a petition for discharge from treatment as a sexually dangerous individual, an appellate court gives great deference to the district court's credibility determinations of expert witnesses and the weight to be given their testimony.

Interest of L.T. (CONFIDENTIAL) 2011 ND 51
Docket No.: 20110040
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Mental Health
Author: Crothers, Daniel John

Highlight: Under N.D.C.C. 25-3.1-15, waiver of a mental health respondent's right to be present at a hearing cannot be found on the basis of only his or her failure to appear at the treatment hearing.

Grand Forks Homes, Inc., et al. v. Grand Forks Bd. of Co. Comm'r(cons. 20100202) 2011 ND 50
Docket No.: 20100197
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A district court's decision whether to order the taking of additional evidence under N.D.C.C. 28-34-01(3) is discretionary.
The basic concept of charity is to provide a gift to assist those in need.
Restricting the use of property for charitable purposes such as providing housing for the handicapped, the elderly, or persons with low incomes does not alone suffice to qualify for a charitable tax exemption.

State v. Erickson 2011 ND 49
Docket No.: 20100285
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: An acquittal, as distinguished from a dismissal quashing an information, is determined by the substance of the judge's ruling.
An order quashing an information is appealable, but a judgment of acquittal is not.
The district court must have a sufficient legal basis to dismiss a criminal charge.
When a court dismisses a criminal action sua sponte, it is required to give the parties notice of its intent to do so and an opportunity to respond.

State v. Johnson (consolidated w/20100241-20100242) 2011 ND 48
Docket No.: 20100240
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers, not weighed in individual layers but in the laminated total.
An application for a warrant that is based upon stale information of previous misconduct is insufficient because it does not establish probable cause that similar or other improper conduct is continuing to occur.

State v. Sauer 2011 ND 47
Docket No.: 20100164
Filing Date: 3/22/2011
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: The prosecution has a duty to disclose documents and data a defendant requests in a criminal case, and the failure to disclose is a discovery violation.
A district court has discretion in applying a remedy for a discovery violation, and the court does not abuse its discretion in remedying the violation unless a defendant shows he was significantly prejudiced and denied a substantial right.

Motschman v. Bridgepoint et al. 2011 ND 46
Docket No.: 20100158
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The statute of frauds must be specifically pleaded, and a party who fails to plead it will be deemed to have waived his right to rely upon it.
The district court may decline to consider an issue or argument raised for the first time on a motion for reconsideration if it could have been raised in earlier proceedings.
Consideration does not fail or become void merely because a party refuses to cash a check tendered as payment in performance of the contract.

Geffre v. N.D. Dep't. of Health 2011 ND 45
Docket No.: 20100110
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: Kapsner, Carol

Highlight: An appellant must meet the statutory requirements for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal.
A nonadministrative party does not have to show an absence of substantial justification for the agency action or prevail on the merits of the underlying appeal to receive an award of attorney fees and costs when the nonadministrative party prevails on an intertwined ruling made in conjunction with the underlying appeal.
In an employer-employee relationship, insubordination imparts a willful disregard of express or implied directions of the employer and refusal to obey reasonable orders.
A party making a constitutional claim must provide persuasive authority and reasoning, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

Nuveen v. Nuveen 2011 ND 44
Docket No.: 20100134
Filing Date: 3/22/2011
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The fair market value of a business is ordinarily the proper method for valuing property in a divorce.
A district court may consider a difference in earning power when determining an award of spousal support, but equalization of incomes is not a goal or measure of spousal support.
In awarding permanent spousal support, a district court may rely upon a substantial disparity in divorcing spouses' incomes that cannot be remedied by a property division or rehabilitative spousal support.