Opinions

Harshberger v. Harshberger 2006 ND 245
Docket No.: 20060039
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") establishes the criteria for deciding which state's courts have subject matter jurisdiction to make a child custody decisions involving interstate custody disputes, and subject matter jurisdiction under the UCCJEA cannot be conferred by agreement, consent, or waiver.
The UCCJEA applies to paternity actions only when custody or visitation is an issue.
A subsequent motion in a pending paternity action that implicates the jurisdictional requirements of the UCCJEA does not relate back to the beginning of the original paternity action that did not raise custody or visitation as an issue.
A judgment entered without subject matter jurisdiction is void.

Ibach v. Zacher 2006 ND 244
Docket No.: 20060129
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: For child visitation, a district court's finding of no material change in circumstances may be reversed as a matter of law on appeal when the custodial parent and child have moved a significant distance and the non-custodial parent has developed a medical condition requiring treatment that conflicts with the existing visitation schedule.

Allard v. Johnson 2006 ND 243
Docket No.: 20060080
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: Whether a presumption applies is a question of law, which is fully reviewable on appeal.
A durable power of attorney agreement creates a confidential relationship and fiduciary duties owed to the beneficiary by the attorney-in-fact.
Under a durable power of attorney agreement, the attorney-in-fact must act with the highest good faith toward the beneficiary and may not obtain any advantage over the beneficiary.
All transactions between an attorney-in-fact and a beneficiary by which the attorney-in-fact obtains any advantage is presumed to be entered into without sufficient consideration and under undue influence.

State v. Myers 2006 ND 242
Docket No.: 20050368
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: A fundamental principle of constitutional law is that a prosecutor may not comment on a defendant's failure to testify in a criminal case.
When there is an adjournment of proceedings in a jury trial, the district court must admonish a jury that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any opinion thereon, until the case is finally submitted to them.

State v. Oliver (Consolidated w/20060083, 20060084 & 20060085) 2006 ND 241
Docket No.: 20060082
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A faded temporary registration certificate with no visible printing is indicative of a temporary certificate that is more than thirty days old and provides an objective fact giving an officer a right to stop a vehicle to check its validity.

Eifert v. Eifert 2006 ND 240
Docket No.: 20060069
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In deciding custody, a district court may consider the child's interaction and interrelationships with a party's extended family and others who may significantly affect the child's best interests.

State v. Doohen 2006 ND 239
Docket No.: 20060089
Filing Date: 11/28/2006
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement.
Under the automobile exception, law enforcement may search for illegal contraband without a warrant when probable cause exists.
A police officer may draw inferences based on his own experience in deciding whether probable cause exists.
Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious individual would warrant a belief that certain items may be contraband or useful as evidence of a crime.

Glasser v. Glasser 2006 ND 238
Docket No.: 20060159
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Divorce
Author: Maring, Mary

Highlight: An order dismissing an order to show cause why a party should not be held in contempt of court is appealable.
Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. The question whether a judgment is ambiguous is a question of law. There is an ambiguity when language can be reasonably construed as having at least two alternative meanings.
If the language used in a judgment is ambiguous, there is room for construction, but if the language 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.

Genter v. Workforce Safety & Ins. Fund, et al. 2006 ND 237
Docket No.: 20060145
Filing Date: 11/28/2006
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Workforce Safety and Insurance must determine whether a medical assessment team is required in a particular case based on the nature of the claimed injury.
If a medical assessment team is required to evaluate an injury, Workforce Safety and Insurance has the discretion to determine the composition of the team on a case-by-case basis.

Klein v. Larson 2006 ND 236
Docket No.: 20060062
Filing Date: 11/28/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In an initial custody decision, the trial court must award custody to the parent who will better promote the best interests and welfare of the child.
A parent's numerous prior criminal offenses, although not involving crimes of moral turpitude, are relevant evidence of the parent's moral fitness.