Opinions

Dvorak v. Dvorak 2005 ND 66
Docket No.: 20040222
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: Tax returns from the most recent five years are properly used to determine the self-employment income of an obligor in calculating child support obligations.
In awarding attorney's fees in a divorce action, a court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.

Buri v. Ramsey, et al. 2005 ND 65
Docket No.: 20040164
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A trial court's determination about whether a conversion has been committed is a finding of fact which will not be overturned on appeal unless it is clearly erroneous.
The injured party in a conversion dispute has the option of choosing either N.D.C.C. 32-03-23(1) or N.D.C.C. 32-03-23(2) to determine the value of the converted property.
Recovery for specific costs incurred to recover the property are to be determined under N.D.C.C. 32-03-23(3).

Interest of A.M.S. (Consolidated w/20040269 & 20040270) 2005 ND 64
Docket No.: 20040268
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Federal law permits decisions regarding rebuttal of child support payments to be made under criteria established by the State.
Under the Child Support Guidelines, an incarcerated child support obligor whose payment amounts are based on an imputed, federal-minimum-wage income cannot reduce these presumptively correct payments by showing a lack of financial resources due to imprisonment.

State v. Krull 2005 ND 63
Docket No.: 20040239
Filing Date: 3/23/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: If a defendant does not object at trial to the introduction of a child's hearsay statements regarding sexual abuse, our inquiry is limited to whether the admission into evidence constitutes obvious error affecting substantial rights.
A trial court abuses its discretion and commits plain error if, under N.D.R.Ev. 803(24), it admits a child's hearsay statements regarding sexual abuse without first making explicit findings regarding the reliability and trustworthiness of the statements. Merely quoting the terms of the hearsay rule and ordering the statements admitted is inadequate.
Even if a trial court commits plain error, for reversal, the error must have affected the defendant's substantial rights by altering the trial's outcome.
A defendant's inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.

Doll v. ND Department of Transportation 2005 ND 62
Docket No.: 20040188
Filing Date: 3/23/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Guidelines for use of a standard solution are not part of the approved method for conducting an Intoxilyzer test unless the State Toxicologist expressly includes them in the approved method filed with the clerk of district court.

City of Horace v. City of Fargo 2005 ND 61
Docket No.: 20040219
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: Annexation statutes are construed liberally to encourage the natural and well-ordered development of municipalities.
A resolution and annexation plat, with a subsequent notation to a judgment that invalidated part of the annexation and was consistent with the parties' mediation agreement, constituted an accurate map for the part of the annexation that had not been invalidated.

Makeeff v. City of Bismarck 2005 ND 60
Docket No.: 20040272
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: A landowner is not immune from liability for an accident that occurs on the landowner's premises just because the accident was caused by a natural accumulation of snow and ice.
Landowners or occupiers have a duty to lawful entrants to reasonably maintain their property in a reasonably safe condition, in view of all the circumstances, including the likelihood of injury to another, the seriousness of an injury, and the burden of avoiding the risk.
Landowners, however, are not insurers of their premises, nor must they endure unreasonable burdens to maintain it.

State v. Nelson 2005 ND 59
Docket No.: 20040284
Filing Date: 3/23/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: If an application for a search warrant contains statements intentionally false or made with reckless disregard for the truth, the false material must be set aside, and if the remaining content is insufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded.
To establish probable cause for a search, there must be a nexus between the place to be searched and the contraband sought.
Mere suspicion that criminal activity is taking place which may warrant further investigation does not rise to a level of probable cause to search.

Kastrow v. State 2005 ND 58
Docket No.: 20040318
Filing Date: 3/23/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Wheeler v. Jahnke, et al. (Consol. w/20040362) (Cross-ref. w/20040341-20040343) 2005 ND 57
Docket No.: 20040361
Filing Date: 3/23/2005
Case Type: Original Proceeding - Criminal - Writ of Certiorari
Author:

Highlight: A district court order affirming a magistrate's finding of probable cause to bind a defendant over for trial on charges of gross sexual imposition and encouraging the deprivation of a minor is summarily affirmed under N.D.R.App.P. 35.1(a)(1).