Opinions

Thompson v. Olson 2006 ND 54
Docket No.: 20050091
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Whether injuries rise to the level of serious bodily injuries for purposes of applying the domestic violence presumption against custody is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.

State v. Smith 2006 ND 53
Docket No.: 20050181
Filing Date: 3/29/2006
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: Convictions of attempted kidnapping, aggravated assault, and terrorizing are summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Feist 2006 ND 52
Docket No.: 20050423
Filing Date: 3/29/2006
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: A district court order denying the defendant's motion to withdraw his guilty plea is affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Krall v. State (Consol. w/20050212 & 20050213) (cross-ref. 20000004) 2006 ND 51
Docket No.: 20050211
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of applications for post-conviction relief and motions for default judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Arth v. Arth 2006 ND 50
Docket No.: 20050061
Filing Date: 3/29/2006
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Order for dismissal of lawsuit with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Hoverson 2006 ND 49
Docket No.: 20050237
Filing Date: 3/2/2006
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: The level of outrageous conduct necessary to prove a due process violation and bar prosecution is quite high and must shock the conscience of the court.
A trial court may permit cross-examination of a witness regarding the underlying facts of a conviction involving dishonesty or deceit.
A trial court may permit cross-examination of a witness regarding specific instances of conduct not resulting in a conviction.
A sentencing court may make reasonable inferences based upon evidence in the record, and those inferences may be a factor in sentencing.

Fischer, et al. v. Berger, et al. 2006 ND 48
Docket No.: 20050182
Filing Date: 2/28/2006
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20-year period of prescription.
The doctrine of acquiescence does not apply to a claim for an easement by prescription for a road across another's property.

Interest of F.F., et al. (CONFIDENTIAL) 2006 ND 47
Docket No.: 20050210
Filing Date: 2/28/2006
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A court may terminate parental rights on finding the child (1) is deprived and (2) has been in foster care for at least four hundred fifty of the previous six hundred sixty nights.

Berge v. Berge 2006 ND 46
Docket No.: 20050124
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When a trial court does not clearly state how it calculated the amount of child support, the Supreme Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding.
Nonrecurrent payments are includable in an obligor's income for determining child support.
It is improper to calculate an obligor's annual employment income based on a mid- year pay stub when the obligor's employment income is reflected on the obligor's prior year's tax return.
If an obligor's most recent annual earnings are a more reliable indicator of future circumstances, the most recent annual earnings may be used to calculate a child support obligation.

State v. Bergstrom 2006 ND 45
Docket No.: 20050110
Filing Date: 2/23/2006
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: In a civil forfeiture action, the State must show probable cause exists to bring the forfeiture action, and then the claimant must prove, by a preponderance of the evidence, the property is not subject to forfeiture.
Because forfeiture is a civil proceeding, apart from an underlying criminal proceeding, the burden of each party does not change when the defendant is acquitted of the criminal charge.
A district court may not rely on a prior probable cause determination, made when a search warrant was issued, to conclude there was probable cause to bring a civil forfeiture action.
Findings of fact are adequate if they provide this Court with an understanding of the district court's factual basis used in reaching its determination.
A court must balance four factors when deciding if a delay in bringing a forfeiture action has violated the claimant's due process rights: length of delay, the reason for the delay, the claimant's assertion of his right, and prejudice to the claimant.