Opinions

Kelly v. Kelly 2002 ND 37
Docket No.: 20010165
Filing Date: 2/21/2002
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An order changing custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
When the previous custody award was based on the parties' stipulation, the trial court must consider all relevant evidence in making a considered and appropriate custody decision.

State v. Hirschkorn 2002 ND 36
Docket No.: 20010094
Filing Date: 2/21/2002
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Because of the importance of an accused's confrontation rights, the safeguards built into N.D.R.Ev. 803(24), allowing admission in evidence of a child's hearsay statements about sexual abuse, must be strictly observed.
When there is a total lack of factual support for admission of a child's hearsay statements under N.D.R.Ev. 803(24) and a probability that the erroneous admission of the hearsay statements affected the outcome of the trial, admission of the statements is obvious error entitling the defendant to a new trial.

Zeller v. Zeller 2002 ND 35
Docket No.: 20010134
Filing Date: 2/21/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: When the relevant factors for consideration in determining a motion to change the residence of a child to another state weigh in favor of the custodial parent's request to relocate the child, the trial court's denial of the motion is reversible error.
A stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of divorcing parties.

City of Jamestown v. Jerome 2002 ND 34
Docket No.: 20010219
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: A police officer is not fulfilling a community caretaking function when approaching a person under circumstances where it is obvious the person is neither in need of nor desires assistance.
Not all communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. A seizure within the context of the Fourth Amendment occurs only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.

Estate of Howser 2002 ND 33
Docket No.: 20010185
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: Whether undue influence exists is a question of fact.
A trial court may remove the personal representative of an estate for cause.

Bertsch, et al. v. Duemeland, et al. (cross-ref. w/20040055) 2002 ND 32
Docket No.: 20010151
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Sandstrom, Dale

Highlight: Whether a communication that is capable of a defamatory meaning is understood by the recipient as defamatory is ordinarily a question of fact.
To recover for interference with a business relationship, a plaintiff must show he would have obtained some economic benefit in the absence of the interference.

City of Devils Lake v. Lawrence 2002 ND 31
Docket No.: 20010063
Filing Date: 2/20/2002
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: An officer's reasonable and articulable suspicion that an individual has committed the offense of disorderly conduct is sufficient to justify a temporary detention of that individual for investigative purposes.

Olson v. Olson 2002 ND 30
Docket No.: 20010156
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Knutson v. Knutson 2002 ND 29
Docket No.: 20010238
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: In considering whether a settlement agreement between divorcing parties should be enforced, the trial court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable.
In the context of improperly coercing a spouse to sign a settlement agreement, undue influence is the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.
When the child support guidelines do not address a situation, as in the case of parents having joint physical custody of a child for equal amounts of time, the trial court must enter an order appropriate to the needs of the child and the ability of the parent to pay.

Hughes v. State, et al. (Con. w/20010189 & 20010190) 2002 ND 28
Docket No.: 20010188
Filing Date: 2/20/2002
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Issues raised in the district court but not briefed on appeal are waived.
A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
No appeal lies from a final order in a habeas corpus proceeding.