Opinions

Gaab v. Ochsner (CONFIDENTIAL) 2001 ND 195
Docket No.: 20010112
Filing Date: 12/10/2001
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A party is not required to prove actual or imminent domestic violence in order to obtain an extension of an existing protection order.

State v. Clark 2001 ND 194
Docket No.: 20010102
Filing Date: 12/10/2001
Case Type: Appeal - Criminal - Theft
Author: Maring, Mary

Highlight: Failure to file a transcript may prevent a party from being successful on appeal.
A trial court may modify conditions of probation if a defendant fails to pay adequate restitution.

Toni v. Toni 2001 ND 193
Docket No.: 20010084
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Agreements by divorcing parties to divest the trial court of jurisdiction to modify the amount and term of spousal support, which are adopted and incorporated into the divorce decree, are enforceable.

Bellefeuille v. Bellefeuille 2001 ND 192
Docket No.: 20010028
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: A trial court does not abuse its discretion in denying a motion for relief from judgment, when the motion was made twenty-one years after the judgment was filed.
A trial court does not have jurisdiction to modify rehabilitative spousal support after the scheduled payments are completed, unless the trial court retains jurisdiction to do so within the decree.

Sommer v. Sommer 2001 ND 191
Docket No.: 20010044
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: Permanent spousal support may be awarded when a marriage has been of long duration and the dependant spouse has health problems or is of such an age that adequate rehabilitation is unlikely.
Under some circumstances, voluntary retirement by a supporting spouse that results in a material change in circumstance may be a valid basis for modification of spousal support.

State v. Kensmoe 2001 ND 190
Docket No.: 20010183
Filing Date: 12/5/2001
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: A trial court acts within its statutory authority when extending a defendant's probationary period following a restitution hearing.
An extension of a probation period does not subject a defendant to multiple punishments in violation of the prohibition against double jeopardy.
A challenge to the constitutionality of a statute must be properly preserved for appeal, and the record on appeal must allow for a meaningful and intelligent review of the alleged unconstitutionality of the statute.

State v. Martin 2001 ND 189
Docket No.: 20000366
Filing Date: 12/5/2001
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: To be convicted of continual sexual abuse of a child, one must be shown to have engaged in three or more sexual acts or contacts during a period of three months or more. This period has no maximum time limit.

Bell v. State 2001 ND 188
Docket No.: 20010138
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: A trial court may deny appointment of counsel for an indigent post-conviction applicant who is able to file an application without assistance, if the application, read in the light most favorable to the applicant, does not raise any substantial issue of law or fact.
It is a misuse of process to raise issues in a post-conviction application that were not raised in the original criminal prosecution, or, if raised, were not pursued in a properly perfected appeal.

Lenthe Investments v. Service Oil, et al. 2001 ND 187
Docket No.: 20010085
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Mutual assent to a contract is determined by the words of the contract and the parties' objective manifestations of assent.
An agreement to agree is enforceable if its terms are reasonably certain and definite.

Fortis Benefits Ins. Co. v. Hauer 2001 ND 186
Docket No.: 20010052
Filing Date: 12/5/2001
Case Type: Appeal - Civil - Insurance
Author: Kapsner, Carol

Highlight: If the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability upon the insurer.
When a conflict exists between a specific provision and a general provision in a contract, the specific provision ordinarily prevails over the general provision.