Opinions

Kovarik v. Kovarik 2009 ND 82
Docket No.: 20080230
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's property division in a divorce is not erroneous with respect to property transferred by one spouse in contemplation of divorce when the court does not include it in the mathematical worksheet but the record reflects the court considered it.
A purported gift of certificates of deposit during the donor's lifetime to one of the spouses will not be included in the marital estate if it fails to meet either one of the requisite elements of a valid gift, i.e., donative intent, delivery, and acceptance.

Haugrose v. Anderson 2009 ND 81
Docket No.: 20080131
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

State ex rel. Stenehjem v. Simple.Net, Inc. 2009 ND 80
Docket No.: 20080144
Filing Date: 5/6/2009
Case Type: Appeal - Civil - Contempt of Court
Author: Maring, Mary

Highlight: A federal judgment based on stipulation does not pre-empt valid state law that does not conflict with any federal law.
A court has discretion in deciding whether to grant a stay on the basis of comity.

Frokjer v. ND Board of Dental Examiners 2009 ND 79
Docket No.: 20080200
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A medical professional's interest in a license to practice is a substantial, constitutionally protected property right.
Disciplinary proceedings against a dentist must provide due process protections, including the right to a fair hearing before an impartial decision maker.
The mere fact that a licensing board or agency has the authority to assess costs and attorney fees in the disciplinary process does not render the board or agency inherently biased in violation of due process.
It is the administrative agency's responsibility to assess the credibility of witnesses and resolve conflicts in the evidence, and reviewing courts do not reweigh the evidence, make independent findings of fact, or substitute their judgment for that of the agency.

State v. Saulter 2009 ND 78
Docket No.: 20080220
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Lay opinion testimony must be rationally based on the perceptions of the witness.
Lay opinion testimony is admissible only to help the jury or court understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations an untrained layman could not make if perceiving the same acts or events.
If evidence is admitted in error, the entire record will be considered and the court will decide in light of all the evidence whether the error was so prejudicial that the defendant's rights were affected and a different decision would have occurred absent the error.

Disciplinary Board v. Stensland 2009 ND 77
Docket No.: 20080213
Filing Date: 4/30/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for sixty days and ordered to pay costs and expenses of the proceedings for violating N.D.R. Prof. Conduct 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3.
A lawyer's failure to notify a client with a pending matter of his suspension from the practice of law is a violation of N.D.R. Lawyer Discipl. 6.3.

State v. Johnson 2009 ND 76
Docket No.: 20070248
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: The affirmative defense of mistake of law requires that the individual seeking to use it had made reasonable effort to determine whether his or her conduct constituted an offense.
In determining whether a prosecutor's statement at trial was an impermissible encroachment upon a defendant's right against self-incrimination, the language used must have been manifestly intended to be or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Such comments must also be considered in the context in which they were made.

Matter of D.V.A. (CONFIDENTIAL) 2009 ND 75
Docket No.: 20080319
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Absent a petition for discharge, a committed sexually dangerous individual does not have a right to a discharge hearing.
A district court's decision to hold a hearing following its review of the annual reevaluation reports regarding a committed sexually dangerous individual's mental condition is a matter of discretion and is therefore subject to an abuse of discretion standard of review.

Farmers Union Oil Company v. Smetana 2009 ND 74
Docket No.: 20080158
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Although an order granting summary judgment is not appealable, an attempted appeal from the order granting summary will be treated as an appeal from a subsequently entered consistent judgment, if one exists.
A motion for summary judgment is not an opportunity for the district court to conduct a mini-trial, and if there are disputed issues of material fact that require resolution by findings of fact, the party opposing summary judgment is entitled to present its evidence to a finder of fact in a full trial.
A deed may not be reformed to correct a mutual mistake if it would prejudice rights acquired by third persons in good faith and for value.
A third-party purchaser acts without good faith if he has actual or constructive notice of the specific defect to be cured by reformation of the deed.

Sailer v. Sailer 2009 ND 73
Docket No.: 20080114
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A premarital agreement is not enforceable if it was not executed voluntarily; however, the party against whom enforcement is sought has the burden to prove it was not executed voluntarily.
In a premarital agreement, parties may contract to keep their property separate. If one spouse uses his or her earnings to support the other, such fact does not, alone, indicate he or she voluntarily waived the enforceability of the premarital agreement.
Section 14-03.1-06(2), N.D.C.C., does not preclude enforcement of a premarital agreement if a party does not prove that enforcement of the premarital agreement would cause him or her to be eligible for public assistance.
When a trial court discusses whether a premarital agreement is clearly unconscionable, its analysis requires complete factual findings about the parties' relative property values, the other resources, and forseeable needs of the spouse asserting the premarital agreement is unconscionable.
A trial court is required to determine the total value of the marital estate in order to make an equitable division of property.