Opinions

Kautzman v. Kautzman (Cross-Ref w/980004,990328,990386,20000083,&20010296) 2003 ND 140
Docket No.: 20030038
Filing Date: 8/22/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: For an effective appeal on any proper issue, the matter must have been raised in the trial court, so the trial court could rule on it, and a failure to object to an irregularity at trial is a waiver of the issue.
A party making a constitutional claim must provide persuasive authority and reasoning.
N.D.C.C. 9-12-07, dealing with the application of performance by a debtor under several obligations to another, applies only if there is voluntary performance.
When a debtor, at the time of payment, does not indicate to which obligation a payment applies, the creditor may apply it to any obligation then due from the debtor.

Volz v. Peterson 2003 ND 139
Docket No.: 20030067
Filing Date: 8/20/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A party seeking modification of child custody is entitled to an evidentiary hearing if she presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in her favor.
Potential endangerment to a child's physical or mental health, or a mature child's reasonable preference to live with one parent, may constitute a significant change of circumstances supporting a modification of custody.

Interest of J.S. (CONFIDENTIAL) (see Docket Memo) 2003 ND 138
Docket No.: 20030210
Filing Date: 8/20/2003
Case Type: Appeal - Civil - Mental Health
Author: Neumann, William

Highlight: A person requiring mental health treatment has the right to the least restrictive conditions necessary to achieve the purposes of the treatment.

State v. Stoppleworth (Consolidated w/20020346) 2003 ND 137
Docket No.: 20020345
Filing Date: 8/20/2003
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: When a victim is unable or unwilling to identify the defendant at trial, the victim's prior out-of-court statements identifying the defendant as his assailant are admissible if the victim testifies and is available for cross-examination at trial.

McKechnie v. Berg, et al. 2003 ND 136
Docket No.: 20030028
Filing Date: 8/20/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: Admitting incompetent evidence in a bench trial is not reversible error unless it induced an improper finding.
The law on partition of property controls the distribution of property accumulated by unmarried partners and cohabitants.
Although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property.

Montgomery v. Montgomery (Cross-reference w/19910217) 2003 ND 135
Docket No.: 20030010
Filing Date: 8/20/2003
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: The trier of fact is entitled to weigh and evaluate testimony, and is not required to accept even undisputed testimony.
A trial court exercises broad discretion in determining whether to hold an individual in contempt.

McMorrow v. State 2003 ND 134
Docket No.: 20030007
Filing Date: 8/20/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Neumann, William

Highlight: An applicant for post-conviction relief has the burden of establishing grounds for relief.
A defendant alleging selective prosecution must show that the State has not generally prosecuted other similarly situated persons and that the State selected the defendant for prosecution for discriminatory reasons.
A defendant claiming ineffective assistance of counsel has the burden of proving counsel's performance was deficient and the deficient performance prejudiced the defendant.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.

State v. Ehli 2003 ND 133
Docket No.: 20030092
Filing Date: 8/20/2003
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Due process requires that parties be given notice and afforded a meaningful opportunity to present objections.

Langness v. Fencil Urethane Systems, et al. 2003 ND 132
Docket No.: 20030004
Filing Date: 8/20/2003
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: N.D.R.Ev. 702 envisions generous allowance of the use of expert testimony if proffered witnesses have some degree of expertise in the field in which they are to testify, and they need not have a formal title or be licensed in any particular field to qualify as an expert if their actual qualifications establish knowledge, skill, experience, training, or education in the field.
A trial court may allow the introduction of evidence that there was a settlement to explain the absence of a former party to a lawsuit.
A witness may not be questioned about wholly irrelevant matters merely for the purpose of contradicting those matters with other extrinsic evidence, and if irrelevant questions are asked and answered, the answer cannot be contradicted by cross-examination.

Benson v. Benson 2003 ND 131
Docket No.: 20030033
Filing Date: 8/30/2003
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: When a North Dakota court issues an initial custody decree, the state retains exclusive, continuing jurisdiction to modify the decree unless: (1) a North Dakota court determines the child and at least one parent no longer have a significant connection with the state and the state no longer has substantial evidence concerning the child, or (2) it is determined by North Dakota or another state that all of the parties to the custody dispute have moved away from the state.
A North Dakota court may decline to exercise jurisdiction upon determining that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.