Opinions

State v. Dennis 2007 ND 87
Docket No.: 20060265
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Consistent with the presumption that compliance with the constitutions of the state and of the United States is intended, criminal statutes are strictly construed in favor of the defendant and against the government.
When a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.
N.D.C.C. 19-03.1-23.1(1)(a) provides an offense enhancement only for the manufacture or distribution of a controlled substance within one thousand feet of a school.

State v. Albaugh 2007 ND 86
Docket No.: 20060334
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: An expectation of privacy in commercial property where the public is apparently welcome is different from, and less than, a similar expectation in an individual's home.
Plain view is a recognized exception to the search warrant requirement, which allows law enforcement to seize a clearly incriminating object without a warrant if the officers are lawfully in a position from which they view an object and the object's incriminating character is immediately apparent.
A search incident to an arrest is a recognized exception to the search warrant requirement, which allows an arresting officer to lawfully search the area within the arrestee's immediate control.
Consent is a recognized exception to the search warrant requirement, so long as the consent is given freely and voluntarily, without any threats or promises having been made.

Cline v. Cline 2007 ND 85
Docket No.: 20060249
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A stipulation which results in a child support obligation less than that required by the child support guidelines violates public policy and will not be enforced.
When an obligor has been awarded extended visitation, as defined under the guidelines, adjustment to child support to reflect that visitation must be made in accordance with the guidelines.
When an obligor has a reduced ability to pay child support because of travel expenses incurred for child visitation, any adjustment must be made to the obligor's net income in computing child support.

Dietz v. Dietz 2007 ND 84
Docket No.: 20060229
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To obtain an evidentiary hearing on a motion for a custody modification, the party seeking the custody modification must file moving papers and supporting affidavits that establish a prima facie case justifying the modification.
If the party opposing a motion to modify custody presents counter affidavits which conclusively establish the moving parties' allegations have no credibility, or even if uncontradicted the parties' allegations are insufficient on their face to justify a custody modification, the court may find the moving party has not established a prima facie case for modification and may deny the motion without an evidentiary hearing.
A party bringing a contempt proceeding is entitled to a hearing unless the party voluntarily, intentionally, or knowingly waives the hearing.

Interest of A.S. and N.S. (CONFIDENTIAL) 2007 ND 83
Docket No.: 20060256
Filing Date: 6/7/2007
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: The particular facts and circumstances of each case are considered when reviewing a juvenile court's decision on a motion for continuance because there is not a mechanical test to determine whether the juvenile court abused its discretion.
The juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
To prevent or eliminate the need for removing a child from its home and to make it possible for a child to return safely to its home, reasonable efforts to preserve and reunite families must be made before the placement of a child in foster care.

State v. Noack 2007 ND 82
Docket No.: 20060237
Filing Date: 6/7/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Kapsner, Carol

Highlight: A self-represented litigant is subject to the rules of appellate procedure and must reasonably comply with them to obtain judicial review.
It is essential that litigants provide a statement of the issues to be reviewed, a statement of the facts, and an argument section to obtain judicial review.

Lynch v. Sweeney 2007 ND 81
Docket No.: 20060104
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: In visitation disputes, a district court must award a noncustodial parent reasonable costs and attorney fees if the court finds there has been willful and persistent denial of visitation rights by the custodial parent.
A district court's decision about the reasonableness and amount of attorney fees to award will not be overturned on appeal absent an abuse of discretion.

State by Workforce Safety v. JFK Raingutters, et al. 2007 ND 80
Docket No.: 20060196
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: North Dakota's workers compensation laws apply to an Indian employer and his state-chartered company, and to work projects occurring on the reservation.
Administrative res judicata applies to final agency orders.

Dvorak v. Dvorak, et al. 2007 ND 79
Docket No.: 20060050
Filing Date: 6/7/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a post-decision motion is made in a civil case, and a notice of appeal is filed before it is decided, a party who wants the disposition of the motion reviewed on appeal must file either an amended notice of appeal or a separate notice of appeal from the order deciding the motion.
An obligor whose child support obligation is delinquent cannot disclaim any interest that obligor might have in a trust, and his attempt to assign or otherwise disclaim the interest is voidable. Any attempt to disclaim the interest after notice of delinquency is furnished to the person administering the trust is absolutely void.
Under agency principles, notice to an attorney, on matters for which the attorney is acting for the client, is notice to the client.

Finley v. ND Dept. of Transportation 2007 ND 78
Docket No.: 20070020
Filing Date: 6/7/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: The Department of Transportation's decision to revoke driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(5).