Opinions

Bertsch v. Bertsch 2006 ND 31
Docket No.: 20050183
Filing Date: 2/2/2006
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: In deciding whether to award attorney fees under N.D.C.C. § 14-05-23, the trial court must balance one party's needs against the other party's ability to pay.
In awarding attorney fees, fault is only relevant to the extent one party has unreasonably escalated the fees.

Interest of D.D., et al. (CONFIDENTIAL)(Consolidated w/ 20050177) 2006 ND 30
Docket No.: 20050176
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Juvenile Law
Author: Maring, Mary

Highlight: Findings of fact in juvenile proceedings will not be set aside on appeal unless clearly erroneous.
Although incarceration, by itself, does not establish abandonment of a child for purposes of terminating parental rights, a probability of harm to the child may be established by prognostic evidence that a parent's current inability to care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.

Simon v. Simon (Consolidated w/20050356) 2006 ND 29
Docket No.: 20050279
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The offset provisions of the split custody and equal custody regulations of the child support guidelines continue to apply to the parents' child support obligations when one parent assigns the right to receive child support to the State as reimbursement for TANF benefits received.

Schwan v. Folden 2006 ND 28
Docket No.: 20050185
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: If a plaintiff does not move for default judgment after the default has occurred or within a reasonable time after the default, and the answer is subsequently filed, the plaintiff waives its right to default judgment for a defendant's failure to appear.
The strong preference of the courts is to decide cases on their merits rather than by default judgment.
A party who proceeds to trial rather than pursuing a default judgment waives its right to default judgment.
Only items in the record may be included in the appendix, and the Supreme Court may take appropriate action against any person failing comply with this rule.

Lentz v. Spryncznatyk 2006 ND 27
Docket No.: 20050234
Filing Date: 1/31/2006
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.
A statute is not retroactively applied merely because prior convictions are used that occurred before the effective date of a statute, as long as the triggering offense occurred after the effective date of the statute.

Dunn v. State 2006 ND 26
Docket No.: 20050336
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John

Highlight: A motion for summary dismissal under the Uniform Post-Conviction Relief Act is akin to a motion for summary judgment.
Thirty days' response time is allowed following motions for summary dismissal under the Uniform Post-Conviction Relief Act.
Summary dismissal is appropriate if the petitioner in a post-conviction relief action fails to raise a genuine issue of material fact.

State v. Nikle 2006 ND 25
Docket No.: 20050172
Filing Date: 1/31/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: Great weight is given to a potential juror's claim that he or she will maintain impartiality.
No legal rule is violated if a jury panel is not rejected after one venireperson makes a comment which, though arguably inappropriate, does not affect the fairness or impartiality of any member of the venire.
Assistance of counsel is effective if, despite counsel's "errors," the results of the proceedings would remain unchanged.

Wheeler v. Gardner 2006 ND 24
Docket No.: 20050166
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: An inmate's responsibility for costs of a medical visit is not limited to a maximum of $10, but rather an inmate is responsible for the actual health care costs plus an additional $10 fee for each medical visit requested by the inmate.
An "after hours" fee billed by a dental office is a health care cost for which an inmate is liable.

Hilgers v. Hilgers (Cross-ref w/20010208 & 20030252) 2006 ND 23
Docket No.: 20050146
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Interest of B.V. (CONFIDENTIAL) 2006 ND 22
Docket No.: 20050300
Filing Date: 1/31/2006
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: VandeWalle, Gerald

Highlight: An order committing a sexually dangerous individual will be affirmed unless it is induced by an erroneous view of the law or it is not supported by clear and convincing evidence.
In a commitment proceeding, an indigent respondent entitled to appointment of an independent examiner does not have the right to choose a specific examiner.
When the commitment proceeding is not held within the statutorily required sixty days, the case will not be dismissed if the delay was caused by the respondent's actions.
A competent party in a civil commitment proceeding who wishes to represent himself cannot be coerced into accepting appointed counsel where there is a clear request for self-representation.