Opinions

State v. Herbel 2008 ND 63
Docket No.: 20070344
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Conviction of possession of marijuana by a driver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Wessman v. Wessman 2008 ND 62
Docket No.: 20070069
Filing Date: 3/31/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous.
Under N.D.C.C. 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.
When there is credible evidence of domestic violence, it dominates the hierarchy of "best interest" factors to be considered.
When a district court addresses whether evidence of domestic violence triggers the presumption under N.D.C.C. 14-09-06.2(1)(j), we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.

Stanhope v. Phillips-Stanhope 2008 ND 61
Docket No.: 20070137
Filing Date: 3/27/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.

Sauby v. City of Fargo 2008 ND 60
Docket No.: 20070202
Filing Date: 3/25/2008
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: A home rule city may not impose fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations under state law.
General language in judicial opinions must be read in the context of the issues before a court.
A court will not follow opinions of the Attorney General if they are inconsistent with the statutory interpretation that the court deems reasonable.

Olson v. Workforce Safety and Insurance 2008 ND 59
Docket No.: 20070094
Filing Date: 3/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 2003 version of N.D.C.C. 65-01-02(5)(b), the calculation of a self-employed worker's average weekly wage was based upon the net profit shown on Schedule C of his preceding year's tax return.

Hitz v. Hitz 2008 ND 58
Docket No.: 20070211
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.

Erickson, et al. v. Brown, et al. 2008 ND 57
Docket No.: 20070044
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.

Serr v. Serr 2008 ND 56
Docket No.: 20070231
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

Young v. Young 2008 ND 55
Docket No.: 20070293
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.

Niemann v. Niemann 2008 ND 54
Docket No.: 20060332
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.