Opinions

Ulsaker v. White 2009 ND 18
Docket No.: 20080093
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: A long-term marriage supports an equal distribution of marital property.
A party's dissipation of marital assets is a relevant factor for the district court to consider when dividing the marital estate.
A district court should consider tax consequences when determining divorce transactions, but phantom tax consequences are not a relevant basis on which to divide marital property.

Reinholdt v. ND Dept. of Human Services 2009 ND 17
Docket No.: 20080210
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: If a Medicaid applicant has a legal ability to obtain an asset, it is considered an actually available resource. In determining whether an asset is actually available, the focus is on the Medicaid applicant's actual and practical ability to obtain the asset as a matter of fact, not of legal fiction.

Hendrickson v. Olson 2009 ND 16
Docket No.: 20080164
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Kapsner, Carol

Highlight: The admissibility of evidence in any adjudicative proceeding before an administrative agency is determined under the rules of evidence unless there is a specific waiver stated orally or in writing before or at the hearing.
To be eligible for Medicaid benefits as an incapacitated parent of a child receiving Medicaid benefits, a parent must have a physical or mental defect of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for 30 days or more.

City of Fargo v. Salsman 2009 ND 15
Docket No.: 20080162
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A municipality has the authority to bring a nuisance abatement action.
Whether a nuisance exists is a mixed question of fact and law.
The state nuisance law and Fargo's nuisance ordinances are not void for vagueness or unconstitutionally overbroad.

Hector, et al. v. City of Fargo 2009 ND 14
Docket No.: 20080177
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: The decision of a local governing body on whether to amend the city zoning map and growth plan will be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not sufficient evidence supporting the decision.
A city must adopt a comprehensive plan governing zoning regulations, and must follow certain statutory procedures when adopting the plan.
A local governing body does not engage in contract zoning simply by speaking with landowners about concerns over the details of proposed zoning amendments.

Myers v. State (cross-reference 20050368) 2009 ND 13
Docket No.: 20080186
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: The failure to file a pretrial suppression motion alone is not enough to meet the burden of proving ineffective assistance of counsel; the petitioner must show actual prejudice.

Citibank v. Reikowski 2009 ND 12
Docket No.: 20080218
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Debtor/Creditor
Author: Crothers, Daniel John

Highlight: Any action or proceeding involving an issue subject to arbitration shall be stayed if an application for stay has been made.

Slorby v. Slorby 2009 ND 11
Docket No.: 20080105
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: If the language of a judgment is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning.
When interpreting a judgment, the language of the judgment should be construed as to give effect to each and every part of it, and bring all different parts into harmony as far as this can be done by fair and reasonable interpretation.

Doepke v. Doepke 2009 ND 10
Docket No.: 20080142
Filing Date: 2/3/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A court errs as a matter of law if it does not comply with the requirements of the child support guidelines when it determines a child support obligation.
Under the child support guidelines, a self-employed individual's child support obligation is generally calculated using an average of the individual's income for the most recent five-year period.
An issue may not be addressed if it is not included in the statement of the issues.

City of Fargo v. Lunday 2009 ND 9
Docket No.: 20080127
Filing Date: 2/3/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under N.D.R.Crim.P. 29(a), a defendant in a criminal jury trial must still make a motion for judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal.