Opinions

Giese v. Giese 2002 ND 194
Docket No.: 20020168
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A party cannot demand a change of judge under N.D.C.C. 29-15-21 when the assigned judge has ruled upon any matter pertaining to an action or proceeding in which the demanding party was heard or had an opportunity to be heard.
In deciding whether to award attorney fees to a party in a divorce case, the court may consider whether one party's actions have unreasonably increased the time and effort spent on the dispute.

State v. Jones 2002 ND 193
Docket No.: 20020118
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: A defendant charged with a felony has a right to a preliminary hearing and, if assisted by counsel, can waive this right.
A defendant must prove alleged false statements in an affidavit in support of a search warrant were made knowingly and intentionally, or with reckless disregard for the truth.
A motion to dismiss based on official misconduct is properly denied when there was no evidence to support any act of misconduct by the prosecutor.

Ramsey Co. Social Serv. Bd., et al. v. Kamara 2002 ND 192
Docket No.: 20020174
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When seeking modification of a child support order within one year of its entry, the party seeking modification must establish that a material change of circumstances has occurred.
Income for incarcerated persons may be imputed at the minimum wage.

Interest of F.R.S. 2002 ND 191
Docket No.: 20020189
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Skorick 2002 ND 190
Docket No.: 20020090
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A trial court errs when it permits witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses despite a request for sequestration. The error may be harmless when the testimony by the rebuttal witness did not affect the defendant's substantial rights.
The control and scope of opening and closing arguments is largely a matter left to the discretion of the trial court, and a case will not be reversed on the ground that the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown.

State v. Dunn 2002 ND 189
Docket No.: 20020154
Filing Date: 12/4/2002
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: Persons have a reasonable privacy expectation in their personal property, which is protected by the Fourth Amendment proscription against unreasonable search and seizure.
A warrantless search or seizure of personal property that has been abandoned does not violate the Fourth Amendment. Abandonment is a question of fact.

Interest of D.Q., et al. (Confidential) (Consolidated w/20020079) 2002 ND 188
Docket No.: 20020078
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Juvenile Law
Author: VandeWalle, Gerald

Highlight: A district court's review of a judicial referee's findings and recommendations under Administrative Rule 13, section 11(b), when it is a review of the record, is governed by N.D.R.Civ.P. 53, and the district court is obliged to accept the referee's findings unless they are clearly erroneous.

Walker v. Walker 2002 ND 187
Docket No.: 20020062
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Use of the Bullock formula to distribute retirement pay is not mandatory if the overall distribution of marital property is equitable.
A property distribution may include offsetting monetary awards when it is impractical or unsound to liquidate essentially nonliquid assets.
In awarding spousal support, the trial court must balance the income and needs of the disadvantaged spouse against the supporting spouse's needs and ability to pay support.
Under appropriate circumstances, termination of temporary spousal support payments may be conditioned upon the supporting spouse's retirement, when the disadvantaged spouse has been awarded a portion of the supporting spouse's monthly retirement benefits.

Myhre v. ND Workers Comp. 2002 ND 186
Docket No.: 20020083
Filing Date: 12/4/2002
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant seeking benefits from the workers compensation fund must establish by a preponderance of the evidence a causal relationship between her employment and the medical condition for which benefits are sought.
To have a "compensable injury" under N.D.C.C. 65-01-02(11)(b)(7), a claimant must show the employment substantially accelerated the progression or substantially worsened the severity of a preexisting injury, disease, or other condition.

Hamilton v. Oppen, et al. 2002 ND 185
Docket No.: 20020045
Filing Date: 12/4/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: Averaging individual jurors' estimates of percentages of fault is not improper in a quotient verdict, but the jurors' prior agreement to be bound by the result of the computation invalidates the verdict.
The trial court's responsibility is to make certain expert testimony is reliable as well as relevant.
Relevant photographs may be excluded from evidence if their probative value is substantially outweighed by the danger of unfair prejudice.