Opinions

Schmidt, et al. v. Gateway Community Fellowship, et al. 2010 ND 69
Docket No.: 20090047
Filing Date: 4/8/2010
Case Type: Appeal - Civil - Personal Injury
Author: Kapsner, Carol

Highlight: To assess recreational use immunity in cases where recreational purposes are mixed with nonrecreational purposes, the proper inquiry requires analysis of the totality of the circumstances and all relevant social and economic aspects of the activity, including the extrinsic nature of the activity, the type of service or commodity offered to the public, and the activity's purpose and consequence.

Davidson v. State 2010 ND 68
Docket No.: 20100022
Filing Date: 4/8/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract.
If the language in a judgment is plain and unambiguous, effect must be given to the plain meaning of the language.
The Board of Higher Education is the constitutionally established entity for the control and administration of state educational institutions, including the University of North Dakota.
Nothing in the plain language of the settlement agreement limits the Board's constitutional and statutory authority, or requires the Board or UND to continue using the nickname and logo throughout the approval period. Neither does the settlement agreement require the Board and UND to change the nickname and logo.

Davis v. Davis 2010 ND 67
Docket No.: 20090145
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Administrative rules are derivatives of statutes and are construed using well-established principles of statutory construction.
A child support obligor is entitled to be reimbursed for child support paid but which was subsequently supplanted by the children's receipt of lump sum social security dependency benefits.

State v. Loh (CONSOLIDATED W/20090099) 2010 ND 66
Docket No.: 20090098
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Warrantless electronic monitoring and recording of a defendant's face-to-face conversations with a confidential informant, with the informant's consent, occurring in the informant's car does not violate North Dakota's constitutional search and seizure provision.
A defendant's two prior convictions for delivery of marijuana and methamphetamine and for delivery of marijuana qualify as prior offenses to trigger the 20-year mandatory minimum sentence for current convictions for two counts of delivery of methamphetamine.

Odom v. State (Consolidated w/ 20090249) 2010 ND 65
Docket No.: 20090248
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Sandstrom, Dale

Highlight: On a post-conviction ineffective-assistance-of-counsel claim, if an appellant has failed to meet the first burden of proving that his counsel's representation fell outside of the wide range of reasonable professional assistance, it is unnecessary to address the argument that the appellant was prejudiced by his counsel's claimed deficient performance.

Estate of Fisk 2010 ND 64
Docket No.: 20090157
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The review of fees paid or taken by a personal representative is left to the sound discretion of the district court.
The $3,000 funeral expense limit in N.D.C.C. 50-24.1-07(1) applies to a deceased medical assistance recipient's spouse's funeral expenses.
The Department of Human Service's right to recovery under N.D.C.C. 50-24.1-07 is limited to estate assets the medical assistance recipient had an interest in at the time of death, and does not extend to the surviving spouses's separately owned assets.

State v. Wolfer 2010 ND 63
Docket No.: 20090323
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The severity of a legal infraction is not relevant when determining whether the officer had reasonable and articulable suspicion to initiate a stop.
The validity of an investigatory stop depends on the reasonableness of the stopping officer's belief that a law had been broken, not on whether the grounds for the stop would ultimately result in conviction.
Whether an officer had reasonable and articulable suspicion that a driver violated North Dakota's practicable lane statute depends on the reasonableness of the officer's suspicion in light of the facts surrounding the stop, including the practicability of maintaining a single lane of travel.

Laib v. Laib 2010 ND 62
Docket No.: 20090284
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: An appellant who fails to raise an argument concerning a denied motion in an appeal cannot bring the same motion two years later and appeal its denial.

State v. Fickert 2010 ND 61
Docket No.: 20090224
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Where a defendant seeks to plead guilty over interactive video network ("IVN"), if defense counsel appears from a site separate from the defendant, the district court must (1) make a finding on the record that the defense counsel's participation from a separate site is necessary; (2) confirm on the record that the defendant has knowingly and voluntarily consented to defense counsel's participation from the separate site; and (3) allow confidential attorney-client communication if requested.
Prior to accepting a defendant's guilty plea, the district court must determine whether there is a sufficient factual basis for the plea to ensure that the defendant is guilty of the crime charged.

RRMC Construction v. Bill Barth 2010 ND 60
Docket No.: 20090292
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: A district court does not err when it decides between two permissible views of the evidence.
A district court does not abuse its discretion by denying a motion for a new trial when the district court's judgment is upheld on its merits and when an appellant presents identical arguments challenging the merits of the judgment and the denial of a new trial motion.

Wolfer v. N.D. Dept. of Transportation 2010 ND 59
Docket No.: 20090346
Filing Date: 4/6/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: The Department of Transportation cannot unilaterally, without notice, decide to take the testimony of a witness telephonically at a hearing on the revocation or suspension of an individual's driving privileges.

Morton County Social Service Board, et al. v. Cramer 2010 ND 58
Docket No.: 20090185
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A stricter statutory standard for modifying custody applies when a motion to modify custody is made within two years of a prior order establishing custody.
A district court's decision whether to modify custody is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.

State v. M.B. (CONFIDENTIAL) 2010 ND 57
Docket No.: 20090276
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Whether a statute is unconstitutional is a question of law, and a statute will be upheld unless its challenger demonstrates the statute is unconstitutional.

Seiler v. Dept. of Human Services 2010 ND 55
Docket No.: 20090305
Filing Date: 4/6/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: An appeal from an administrative decision must challenge the agency's ultimate decision; otherwise, the court is called on to issue an impermissible advisory opinion.
Statutes are construed to avoid constitutional infirmities.

Hoffner v. Job Service N.D. 2010 ND 54
Docket No.: 20090357
Filing Date: 4/6/2010
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Per Curiam

Highlight: Judgment affirming Job Service North Dakota's denial of unemployment benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Smestad (consolidated w/20090272, 20090273, & 20090303) 2010 ND 53
Docket No.: 20090271
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - Theft
Author: Per Curiam

Highlight: Criminal judgments entered upon guilty pleas of theft of property and an order revoking probation are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Delaney 2010 ND 52
Docket No.: 20090283
Filing Date: 4/6/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: District court judgment entered after a jury found defendant guilty of abuse or neglect of a child is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Mertz v. 999 Quebec, Inc., et al. 2010 ND 51
Docket No.: 20090031
Filing Date: 3/24/2010
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: An order granting summary judgment is not appealable, but an attempted appeal from an order granting summary judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.

Great Western Bank v. Willmar Poultry Co. 2010 ND 50
Docket No.: 20090071
Filing Date: 3/23/2010
Case Type: Appeal - Civil - Contracts
Author: Crothers, Daniel John

Highlight: Statutory lien laws are remedial and will be liberally construed to effectuate their purpose of protecting those who contribute labor, skill, or materials.
Under N.D.C.C. 35-31-01, "poults" or young turkeys may be considered "supplies" for purposes of obtaining an agricultural supplier's lien.
The term "agricultural product" as used in N.D.C.C. 35-31-03 includes "livestock" in granting priority to an agricultural supplier's lien.

Home of Economy v. Burlington Northern (Cross Ref. w/20070002 & 20040267) 2010 ND 49
Docket No.: 20090226
Filing Date: 3/19/2010
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The party asserting the existence of a public road by prescription bears the burden of proving the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for twenty years.
A district court's findings regarding whether the party asserting the existence of a public road proved the elements of prescription will not be overturned unless clearly erroneous.
To establish an easement by estoppel, the party asserting the existence of the easement must show a representation was communicated to that party, the communication was believed, and the party acted in reliance upon the communication.
A district court's findings regarding whether the party asserting the existence of an easement by estoppel proved the requisite elements of such easement will not be overturned unless clearly erroneous.

Jarick Products v. MID AM Group, et al. 2010 ND 48
Docket No.: 20090290
Filing Date: 3/18/2010
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: District court order denying Peterson's motion to vacate a default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

Van Beek, et al. v. Umber, et al. 2010 ND 47
Docket No.: 20090264
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Real Property
Author: Maring, Mary

Highlight: A trial court's award of attorney's fees and costs under N.D.C.C. 28-26-31 is discretionary, but the court's exercise of that discretion must be based on evidence that the pleadings were made without reasonable cause and not in good faith, and are found to be untrue.

Interest of K.J., et al. (CONFIDENTIAL) (consolidated w/20090265) 2010 ND 46
Docket No.: 20090263
Filing Date: 3/16/2010
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Highlight: A juvenile court may terminate parental rights if there is clear and convincing evidence: (1) the child is a deprived child; (2) the conditions and causes of the deprivation are likely to continue; and (3) the child is suffering, or will in the future probably suffer serious physical, mental, moral or emotional harm..
Incarceration does not alone constitute continued deprivation, but the harm a parent's incarceration may cause the children may be established by prognostic evidence that a parent's current inability to properly care for the child will continue long enough to render improbable the successful assimilation of the child into a family if the parent's rights are not terminated.
The application of the expedited appeal procedures under N.D.R.App.P. 2.2 does not unconstitutionally infringe on the right to procedural due process when the appellant has neither demonstrated any effect on her interests occurred as a result, and has not shown any risk of an erroneous deprivation of her interests through the procedures used..

Harris v. Harris 2010 ND 45
Docket No.: 20090247
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: There is no statute or rule authorizing an appeal to district court from a magistrate's decision on a disorderly conduct restraining order.
The voluntary, knowing, and intelligent waiver test applies to due process challenges in civil cases.
A district court errs as a matter of law when it denies the respondent's statutory and due process right to a full hearing before a disorderly conduct restraining order may be issued.

Westby v. Schmidt, et al. 2010 ND 44
Docket No.: 20090109
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: Flaws and weaknesses in an expert witness's opinion go to the weight the trier of fact should give the opinion and not its admissibility.
Special verdicts are upheld on appeal whenever possible, and will only be set aside when the verdict is perverse and clearly contrary to the evidence.
A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it so far as the facts are known or ought to be known to the person accepting.

State ex rel. Dept. of Labor v. Riemers, et al. 2010 ND 43
Docket No.: 20090190
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A party who fails to appeal from an order denying a motion for relief from judgment under N.D.R.Civ.P. 60(b) waives any issues covered therein and may not simply file a second N.D.R.Civ.P. 60(b) motion on the same grounds in lieu of an appeal.

Zimmerman v. WSI, et al. 2010 ND 42
Docket No.: 20090243
Filing Date: 3/16/2010
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: An injured worker may be entitled to temporary partial disability benefits for a cumulative total of five years.

Dunn v. ND Dept. of Transportation 2010 ND 41
Docket No.: 20090317
Filing Date: 3/16/2010
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Judicial estoppel prohibits a party from taking inconsistent or contradictory positions during litigation.
Administrative due process requires a fair hearing before a fair tribunal. The fact-finder in an administrative hearing cannot prejudge the case, harbor a bias against a party, or participate in the hearing if there is a high probability of bias against a party.
A district court acting in an appellate capacity has authority under the Administrative Agencies Practice Act to dispose of procedural matters as reasonably required, including the ability to vacate a judgment entered on the basis of a procedural mistake.

McAllister v. McAllister, et al. 2010 ND 40
Docket No.: 20090176
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Granting visitation to a third party is a lesser intrusion on a parent's constitutional right to the custody and companionship of his or her children than granting decisionmaking responsibility and primary residential responsibility to a third party.
A district court may recognize that it is not necessary to award primary residential responsibility to the psychological parent rather than the natural parent to prevent serious harm or detriment to the child and to also recognize that it is necessary to award visitation to the psychological parent to prevent serious harm or detriment to the child.

State v. Dudley 2010 ND 39
Docket No.: 20090293
Filing Date: 3/16/2010
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under the automobile exception to the Fourth Amendment, a law enforcement officer may search a vehicle without a warrant if the officer has probable cause.
A law enforcement officer has probable cause to search a vehicle if, based upon the facts and circumstances known to the officer, he or she reasonably believes the vehicle contains items subject to seizure.

Tweed v. State 2010 ND 38
Docket No.: 20090171
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: To obtain post-conviction relief on the basis of newly discovered evidence, the petitioner must demonstrate (1) the evidence was discovered after trial; (2) the failure to learn about the evidence at the time of trial was not the result of a lack of diligence; (3) the newly discovered evidence is material to issues at trial; and (4) the weight and quality of the evidence would likely result in an acquittal.
To obtain post-conviction relief on the basis of ineffective assistance of counsel, the petitioner must demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was so prejudiced by counsel representation that, but for counsel's errors, the result of the proceeding would have been different.

Oie v. State 2010 ND 37
Docket No.: 20090365
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Henrickson 2010 ND 36
Docket No.: 20090229
Filing Date: 3/16/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of escape is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Parisien v. Parisien 2010 ND 35
Docket No.: 20090086
Filing Date: 3/5/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court may award spousal support to a party in a divorce action for any period of time. Spousal support determinations are findings of fact and will not be set aside unless clearly erroneous.
Spousal support awards must be made in consideration of the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.
A greater property distribution does not necessarily eliminate the need for spousal support.

Davis v. Enget, et al. 2010 ND 34
Docket No.: 20090329
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: In legal malpractice claims, expert testimony is generally required to establish the applicable standard of care and whether an attorney's conduct fell below that standard.
New evidence cannot be tendered at oral arguments because it would be fundamentally unfair to fault a trial court's decision on the basis of evidence the trial court did not have the opportunity to consider.

Wolt v. Wolt (cross ref. 20090103) 2010 ND 33
Docket No.: 20090126
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. A domestic violence protection order petitioner must prove "actual or imminent domestic violence" by a preponderance of the evidence.
"Domestic violence" includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
When the type of domestic violence justifying a domestic violence protection order is based upon fear, the harm feared by the petitioner must be "actual or imminent."
Even when a disorderly conduct restraining order has previously been entered and remains in effect, the doctrine of res judicata does not bar the subsequent entry of a domestic violence protection order.

Hagerott v. Morton Co. Bd. of Commissioners 2010 ND 32
Docket No.: 20090180
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A person is aggrieved and has standing to appeal a county commission zoning decision if the person has some legal interest that may be enlarged or diminished by the decision appealed from.
A county commission's decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision.

Dufner v. Trottier (Consolidated w/20090251; Cross-Ref. with 20010163) 2010 ND 31
Docket No.: 20090211
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Prolonged exposure to adult conflict is not in a child's best interests.
The standards to modify custody and to modify visitation are similar but different. Custody modifications require the movant to establish a prima facie case prior to entitlement of an evidentiary hearing.
In custody modification proceedings, only moving papers and supporting affidavits can be used to establish a prima facie case entitling a movant to an evidentiary hearing.

State v. Byzewski (CONSOLIDATED WITH 20090151) 2010 ND 30
Docket No.: 20090150
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Under N.D.R.Crim.P. 11(a)(2), "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion."
By engaging in behavior that led to a domestic violence protection order, the defendant forfeited his right to travel where the victim works.
A protection order and the defendant's presence on the campus provided law enforcement officers with reasonable and articulable suspicion to stop his vehicle.

State v. Addai 2010 ND 29
Docket No.: 20090079
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: During a stop of a vehicle, a law enforcement officer seizes every person in the vehicle, and therefore a passenger in the vehicle may challenge the legality of the stop.
Identification testimony must be suppressed if, under the totality of the circumstances, the identification procedure was unnecessarily suggestive and the identification is unreliable.
A single-person, showup identification is inherently suggestive, but is not necessarily unduly suggestive and may serve legitimate law enforcement purposes in some cases.
If a party fails to comply with N.D.R.Crim.P. 16, a discovery rule, the district court has discretion in applying a remedy.

Petition of Berger 2010 ND 28
Docket No.: 20090198
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Other
Author: Sandstrom, Dale

Highlight: When a minor is involved, the requirement that the district court determine whether there is "proper and reasonable cause" for a proposed name change necessarily includes consideration of the best interests of the child.
While the general standard of review for name change petitions under N.D.C.C. ch. 32-28 remains the abuse-of-discretion standard, a district court's findings on the best interests of a child when deciding a petition to change the name of a minor child are subject to the clearly erroneous standard of review.

sather 2010 ND 27
Docket No.: 20090149
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Juvenile Law
Author: Kapsner, Carol

Highlight: The First Amendment does not apply to "fighting words" that are likely to incite a breach of the peace or provoke a violent reaction.
The petition in a juvenile delinquency case must set forth sufficient facts to provide the respondent with notice of the manner in which the State alleges the juvenile committed a delinquent act.
On appeal from a juvenile court order, we review the court's findings of fact under the clearly erroneous standard.

Wolt v. Wolt (cross ref. 20090126) 2010 ND 26
Docket No.: 20090103
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: The district court has substantial discretion in making a custody determination, but it must consider all of the staturtory factors.
In awarding visitation to the noncustodial parent, the best interests of the child, rather than the wishes or desires of the parents, are paramount.
A district court's marital valuations are not clearly erroneous if they are within the range of evidence presented.
Property division need not be equal to be equitable, but a substantial disparity must be explained. A long-term marriage supports an equal distribution of property.

Fleck v. Fleck 2010 ND 24
Docket No.: 20090075
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Appellate review is especially deferential to a district court's difficult decision on primary residential responsibility when it involves two fit parents.
A district court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.

Nelson v. Johnson 2010 ND 23
Docket No.: 20090133
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Landlord/Tenant
Author: Maring, Mary

Highlight: Special statutory procedures are exempt from the rules of civil procedure insofar as those statutory procedures are inconsistent with the rules.
A landlord may not commence an eviction action against a tenant for nonpayment of rent unless the landlord gives the tenant a three-day notice of intention to evict and an opportunity to pay the past due rent.
A notice of intention to evict may be served either as a summons is served and returned, or by the sheriff of the county or a process server posting the notice conspicuously upon the premises if the party cannot be found.
Service of a notice of intention to evict must have been attempted at least once and the tenant not found before the notice may be served by posting conspicuously upon the premises.
A process server is interested in the action if the server might properly have been joined as a party in the action.
No counterclaims may be interposed in an eviction action except as a set off to a demand made for damages or for rents and profits.

Grinnell Mutual Ins. Co. v. Thompson, et al. 2010 ND 22
Docket No.: 20090250
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Insurance
Author: VandeWalle, Gerald

Highlight: The Financial Responsibility Laws do not set minimum levels of insurance coverage for nonpermissive operators.

Judicial Vacancy in Judgeship No. 6, East Central Judicial District 2010 ND 21
Docket No.: 20100020
Filing Date: 2/17/2010
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo.

Halberg v. Halberg 2010 ND 20
Docket No.: 20090168
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines.
A court must determine an obligor's gross income before determining whether the obligor is underemployed.
For purposes of determining a child support obligation, an individual's gross income includes net income from self-employment, the value of in-kind income received on a regular basis, and employee benefits.

State v. Stridiron (consolidated w/20090093) 2010 ND 19
Docket No.: 20080285
Filing Date: 1/26/2010
Case Type: Appeal - Criminal - Homicide
Author: Maring, Mary

Highlight: A district court's decision to consolidate offenses or its refusal to grant a separate trial will not be set aside on appeal unless the defendant establishes a clear abuse of discretion.
A district court should generally wait until voir dire to determine whether it is possible to select a fair and impartial jury.
A district court's findings in resolving a challenge based on Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection will not be overturned on appeal unless they are clearly erroneous.
In determining "corroborating circumstances" under N.D.R.Ev. 804(b)(3), the district court may analyze both the credibility of the in-court witness and the reliability of the out-of-court declarant.
The Supreme Court does not sit as a "thirteenth juror" to make independent determinations of credibility of witnesses or other evidentiary weight.

Isaacson v. Isaacson 2010 ND 18
Docket No.: 20090114
Filing Date: 1/26/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Courts determine actual controversies and will not act in an advisory capacity to decide mooted questions or abstract propositions.
Litigants in civil nonjury cases have a right to make a final argument. This right can be waived by the parties or narrowed by the courts, but it cannot be unilaterally denied.
Rule 8.3 property and debt listings filed in divorce proceedings inform the court what value the parties assign to marital property. The assigned values are suggestions that are not binding on the court.
Items not recognized as marital assets are not included in the marital estate absent argument demonstrating the propriety of inclusion.
Continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed without a request for a continuance or a showing of inability to meet the surprising situation.