Opinions

Matter of T.O. (CONFIDENTIAL) 2009 ND 209
Docket No.: 20090181
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: A person can be committed as a sexually dangerous individual if the individual's likelihood to engage in further acts of sexually predatory conduct which constitutes a danger to the physical or mental health or safety of others is proven by evidence of the individual's scores on actuarial assessment instruments, violation of treatment center rules, failure to complete treatment, and acting out sexually.

Machart v. Machart 2009 ND 208
Docket No.: 20090139
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A child's preference to live with one parent can constitute a material change in circumstances, justifying a change in primary residential responsibility.
A district court that does not sufficiently document a child support obligor's income errs as a matter of law.
A district court that does not consider a child living with a child support obligor who is not also a child of the obligee errs as a matter of law.

First International Bank & Trust v. Peterson, et al. 2009 ND 207
Docket No.: 20090214
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A lender that pays a borrower's debt by purchasing property at a foreclosure sale for the full amount of the indebtedness discharges guaranties on the loan.
Failure to respond to a letter, when there is no legal requirement to do so, does not constitute inaction upon which a party can rely to prove a waiver or estoppel claim.

Matter of Lila Peterson's dogs (cross-reference with 20080094) 2009 ND 206
Docket No.: 20090160
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Under N.D.C.C. 36-21.1-06(1), probable cause to confiscate an animal exists when a sheriff, police officer, licensed veterinarian, or investigator knows of facts and circumstances sufficient to warrant a reasonable belief that the animal is being unjustifiably exposed to cold or inclement weather or not being properly fed and watered.
A district court's determination of whether an animal owner can provide adequate care for a confiscated animal under N.D.C.C. 36-21.1-06(8) will be reversed only if clearly erroneous.

Hartleib v. Simes 2009 ND 205
Docket No.: 20080307
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Procedural due process generally requires fundamental fairness, including notice and a meaningful opportunity to he heard, but the specific requirements of procedural due process are flexible and vary depending upon the circumstances of each case.
The district court has broad discretion over the presentation of evidence and the conduct of a trial or hearing, and the court may impose reasonable restrictions upon the length of the trial or hearing and upon the number of witnesses allowed.
When a parent seeks to terminate a guardianship and regain custody of his or her child, the parent initially has the burden of showing that the impediments leading to creation of the guardianship have been removed; the burden then shifts to the non-parent guardian to rebut the presumption that parental custody is in the best interest of the child by showing "exceptional circumstances"; and, if exceptional circumstances exist, a "best interest of the child" analysis is triggered, with the burden of proof upon the non-parent to establish that it is in the best interest of the child that the guardianship continue.
The fact that a guardianship was voluntarily created with the consent of the parents is, as a matter of law, an "exceptional circumstance" triggering the best interest of the child analysis.
As a prerequisite to awarding grandparent visitation under N.D.C.C. 14-09-05.1, the district court must determine whether the visitation would be in the best interest of the child and whether the visitation would interfere with the parent-child relationship.

State v. Dahl (Consolidated w/20090019) 2009 ND 204
Docket No.: 20090018
Filing Date: 12/15/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: District courts can reject a defendant's waiver of the right to counsel if the defendant suffers from mental illness or impairment such that the defendant would not be competent to conduct trial proceedings, even if the defendant is otherwise competent to stand trial.
To ensure the defendant is afforded a fair trial, a district court can appoint counsel for the defendant during trial if the court determines the defendant is no longer competent to present his or her own defense.

Hruby v. Hruby 2009 ND 203
Docket No.: 20090010
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: In deciding whether to allow a custodial parent to relocate to another state with the child, the custodial parent's desire to move to live with a new spouse is a dominant factor in favor of allowing the move.
A custodial parent's motion for permission to relocate should be denied based on the potential negative impact on the relationship between the noncustodial parent and child only in exceptional circumstances, including when the court finds a custodial parent will not foster the child's relationship with the noncustodial parent.

Great Plains National Bank v. Leppert, et al. 2009 ND 202
Docket No.: 20090119
Filing Date: 12/15/2009
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: An amended foreclosure and money judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Booth 2009 ND 201
Docket No.: 20090148
Filing Date: 12/15/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: A criminal judgment entered upon a guilty verdict of accomplice to criminal mischief is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Wilson (Consolidated w.20090204) 2009 ND 200
Docket No.: 20090203
Filing Date: 12/15/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: District court judgments entered after a jury found defendant guilty of reckless endangerment and fleeing or attempting to elude a peace officer are summarily affirmed under N.D.R.App.P. 35.1(a)(3).