Opinions

Riemers v. State of North Dakota, et al. 2008 ND 101
Docket No.: 20070317
Filing Date: 6/2/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Crothers, Daniel John

Highlight: When the Supreme Court denies a petition to review a Court of Appeals decision, the decision becomes final and will not be differently determined on a subsequent appeal in the same case.
A trial court is considered an expert in determining the amount of attorney fees, and its decision concerning the amount and reasonableness of the attorney's fees will not be overturned on appeal absent a clear abuse of discretion.
Paralegal costs may be included in reasonable attorney's fees.

Guardianship/Conservatorship of D.M.O. (cross-reference 20040235) 2008 ND 100
Docket No.: 20060280
Filing Date: 5/23/2008
Case Type: Appeal - Civil - Guardian/Conservator
Author: Crothers, Daniel John

Highlight: The Supreme Court will dismiss an appeal when issues become moot or academic and there is no actual controversy left for our determination.
An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief.

Larson v. Hagerty, et al. 2008 ND 99
Docket No.: 20080056
Filing Date: 5/19/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author:

Highlight: A district court judgment dismissing a complaint which alleged that state officials had deprived the appellant access to the courts is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Reopelle v. Workforce Safety and Insurance, et al. 2008 ND 98
Docket No.: 20070240
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Unless otherwise provided, statutes in effect on the date of an injury govern a claimant's right to collect workers compensation benefits.
The five-year limit for partial disability benefits applies to claimants who have partial loss of earnings capacity occurring after June 30, 1991.

Waldie v. Waldie 2008 ND 97
Docket No.: 20070342
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's decision regarding redistribution of marital property and debt is reviewed under an abuse-of-discretion standard.
A redistribution of marital property and debt is warranted when there is a noncompliance with a court order that results in a significant shift in equity.

State v. $33,000 U.S. Currency, et al. 2008 ND 96
Docket No.: 20070336
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court's denial of a motion for relief from a default judgment will be reversed if the court abused its discretion.
A district court should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits.
Whether an appearance has been made for purposes of N.D.R.Civ. P. 55(a) is a question of law.
An appearance is any response sufficient to give the plaintiff or his or her attorney notice of an intent to contest the claim.

Riemers v. Mahar 2008 ND 95
Docket No.: 20070232
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Crothers, Daniel John

Highlight: A public figure is prohibited from recovering damages for defamatory criticism unless there is clear and convincing evidence that the statements were made with actual malice.
Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden at trial.

State v. Schwab (Consolidated w/20070277) 2008 ND 94
Docket No.: 20070276
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Once a blood alcohol test report is admitted into evidence, a court abuses its discretion by refusing to permit a DUI defendant to examine the analyst who performed the chemical testing, if the analyst is present at court.

State v. Curtis (cross ref. 20070250 & 20070333) 2008 ND 93
Docket No.: 20070249
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: A criminal conviction will be reversed for insufficient evidence only when, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Threats are statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

Walberg v. Walberg, et al. 2008 ND 92
Docket No.: 20070259
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Statutes are construed to harmonize them and avoid an unreasonable result or unjust consequence.
An agreement purporting to waive past-due child support is void and may not be enforced unless the child support obligee and any assignee of the obligee have consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.

Voisine v. State 2008 ND 91
Docket No.: 20070313
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer's activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.
A probation condition is not violated during incarceration if the condition unambiguously is not effective until release.

Krueger v. Krueger 2008 ND 90
Docket No.: 20070196
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A spousal support award must consider a disadvantaged spouse's needs and a supporting spouse's ability to pay.
Permanent spousal support is appropriate when an economically disadvantaged spouse cannot be equitably rehabilitated to make up for opportunities lost during the course of a marriage, while rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of a divorce by increasing the disadvantaged spouse's earning capacity.
Voluntary retirement by a supporting spouse that results in a material change in circumstances may be a valid basis for modification of spousal support.

Interest of I.B.A. and C.B.A. (CONFIDENTIAL)(Consolidated w/20070334) 2008 ND 89
Docket No.: 20070328
Filing Date: 5/15/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: While there is no constitutional right to appear at the hearing, a parent must be represented by counsel at a hearing to terminate parental rights, absent a valid waiver of counsel.
A district court should make in-depth individual findings regarding each parent, rather than combining the parents together in its analysis of whether the children are deprived and whether deprivation is likely to continue.

Teigen, et al. v. State 2008 ND 88
Docket No.: 20070134
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Constitutional Law
Author: Kapsner, Carol

Highlight: A court can decide constitutional issues if at least one plaintiff has standing.
All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates it contravenes the state or federal constitution.
The justice, wisdom, necessity, utility and expediency of legislation are questions for the legislative, and not for judicial determination.
Statutes are construed as a whole and harmonized to give meaning to related provisions and are construed to avoid constitutional infirmities.
A statute requiring the wheat commission to expend two mills of a wheat tax for contracts with no more than two trade associations incorporated in North Dakota that have as their primary purpose the representation of wheat producers does not violate state constitutional provisions prohibiting special laws, special privileges and immunities, and gifts.

Hoover v. Director, N.D. Dept. of Transportation 2008 ND 87
Docket No.: 20070258
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Eyewitness testimony is not necessary to establish reasonable grounds to believe a person was driving under the influence; circumstantial evidence is sufficient.
If a police officer has probable cause to arrest a suspect, the officer has the right to accompany and monitor the movements of the suspect.

Interest of T.E. (Confidential) 2008 ND 86
Docket No.: 20080034
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Mental Health
Author: Kapsner, Carol

Highlight: A district court must to make all four factual findings in an involuntary medication order, whether the involuntary medication order is included as part of the larger commitment order or when a medication order is issued separately.

Ike v. Director, N.D. Dept. of Transportation 2008 ND 85
Docket No.: 20070302
Filing Date: 5/15/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The issuance of a temporary operator's permit to a driver having an alcohol concentration exceeding the per se limit is a basic and mandatory requirement under N.D.C.C. 39-20-03.1. The issuance of the permit serves as the Department's official notification to the driver of the Department's intent to revoke, suspend, or deny driving privileges.
An officer's error as to a provision that is not basic and mandatory to the Department's authority to proceed is not reversible when there is no prejudice.

State v. Gay 2008 ND 84
Docket No.: 20070348
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: Under the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable.
A search, under the Fourth Amendment, occurs when the government intrudes upon an individual's reasonable expectation of privacy.
A pat-down search is not simply a routine preliminary to a more extensive search.
The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally.

State v. Vaagen 2008 ND 83
Docket No.: 20070337
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: A criminal conviction of failure to pay child support is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Feist 2008 ND 82
Docket No.: 20070305
Filing Date: 5/15/2008
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: A criminal judgment for fleeing or attempting to elude a police officer is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (3) and (4).

Interest of C.J., S.J., and K.W. (CONFIDENTIAL) (consolidated w/20070315) 2008 ND 81
Docket No.: 20070314
Filing Date: 5/15/2008
Case Type: Appeal - Civil - Juvenile Law
Author:

Highlight: A juvenile court judgment terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Ward, et al. v. Bullis, et al. 2008 ND 80
Docket No.: 20070188
Filing Date: 4/25/2008
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: An attorney may be liable for securities law violations if he is an agent who effects or attempts to effect the purchase or sale of securities, and he aids or participates in any way in the sale or contract for sale made in violation of the Securities Act.
Summary judgment is appropriate when either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or resolving the factual disputes would not alter the result.

Manske v. Workforce Safety and Insurance 2008 ND 79
Docket No.: 20070173
Filing Date: 4/23/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A worker's employment need not be the sole cause of injury to be compensable. It is sufficient if a work condition is a substantial contributing factor to the disease.
The fact that an employee may have physical conditions or personal habits which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim.

Haugenoe v. Workforce Safety and Insurance, et al. 2008 ND 78
Docket No.: 20070099
Filing Date: 4/22/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Section 65-01-09, N.D.C.C., does not grant WSI a subrogation interest in an injured worker's legal malpractice claim against an attorney who committed malpractice in handling the injured worker's claim against a third-party tortfeasor.

Sandvick, et al. v. LaCrosse, et al. 2008 ND 77
Docket No.: 20070146
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Sandstrom, Dale

Highlight: The crucial elements of a partnership are (1) an intention to be partners, (2) co-ownership of the business, and (3) a profit motive.
For a business enterprise to constitute a joint venture, the following four elements must be present: (1) contribution by the parties of money, property, time, or skill in some common undertaking, but the contributions need not be equal or of the same nature; (2) a proprietary interest and right of mutual control over the engaged property; (3) an express or implied agreement for the sharing of profits, and usually, but not necessarily, of losses; and (4) an express or implied contract showing a joint venture was formed. There is, however, no fixed formula for identifying the joint venture relationship in all cases, and each case will depend upon its own unique facts.
Principles of partnership law apply to the joint venture relationship.
Joint venturers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty.

Disciplinary Board v. O'Donnell (Consolidated w/ 20080085) 2008 ND 76
Docket No.: 20080084
Filing Date: 4/18/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer is suspended from the practice of law for two years, but the suspension is stayed for two years on conditions. Interim suspension is vacated.

Grosgebauer v. N.D. Dept. of Transportation 2008 ND 75
Docket No.: 20070299
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Whether a driver affirmatively refused to submit to alcohol testing is a determination of fact that is significantly reliant on the credibility of witnesses.
To cure a refusal to submit to alcohol testing, the consent to submit to testing must be clearly articulated and meet other criteria.

Stockman Bank of Montana v. AGSCO, Inc., et al.(Cross Ref w/20060174) 2008 ND 74
Docket No.: 20070357
Filing Date: 4/18/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: Where a party is erroneously ordered to pay another, the party is entitled to interest at the legal rate set by N.D.C.C. 47-14-05, when the judgment is later reversed.

State v. Jacobson 2008 ND 73
Docket No.: 20070103
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Assault
Author: Maring, Mary

Highlight: An appearance of partiality requiring a judge's disqualification does not automatically result from a judge's casual or social acquaintance with a witness.
A disqualified judge whose withdrawal from a case is not mandatory has the option of either withdrawing or disclosing to the parties on the record the basis for his disqualification.
A party seeking to disqualify a judge from a proceeding must file a timely motion.
A party who knows the facts that would form the basis of disqualification prior to entry of a judgment against him waives his right to disqualification of a judge by failing to request disqualification until after the judge enters a judgment adverse to that party.

Bateman v. City of Grand Forks 2008 ND 72
Docket No.: 20070217
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: Sandstrom, Dale

Highlight: A court's review of special assessments for local improvements is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably.
Special assessments for local improvements are presumed valid, and the burden is on the party challenging the validity to demonstrate they are invalid.
A special assessment against any property must not exceed the benefit the property receives from the improvement.
A special assessment commission has broad discretion to choose the method used to decide benefits and assess individual properties.

Lynnes v. Lynnes 2008 ND 71
Docket No.: 20070274
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: The district court's valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.
A relatively insignificant error in valuation of a marital asset will not, standing alone, constitute sufficient grounds for reversal of the judgment.
If substantial amount of debts are excluded from the marital estate, it is not clear that the district court would have reached the same result in allocating the assets and debts had it correctly included the debts as part of the marital estate before allocating the debts between the parties.

State v. Gendron 2008 ND 70
Docket No.: 20070199
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Restitution orders will be affirmed unless the district court acted outside the limits set by statute, which is similar to an abuse of discretion standard.
The prosecution has the burden of proving the amount of restitution by a preponderance of the evidence.
Evidentiary imprecision on the amount of damages does not preclude recovery by restitution.

State v. Loomer (Consolidated w/20070236-20070239) 2008 ND 69
Docket No.: 20070235
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: For a not guilty plea, the Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence.
Unless a defendant was prejudicially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction under N.D.R.Crim.P. 7(c)(2).

Wenzel Estate v. Wenzel 2008 ND 68
Docket No.: 20070264
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Real Property
Author: VandeWalle, Gerald

Highlight: A trial court's findings in a partition action will not be reversed on appeal unless they are clearly erroneous.
A trial court's equitable powers in partition actions do not include the power to order one party to buy out the other party's share of jointly owned property.

Oyloe v. ND Department of Human Services 2008 ND 67
Docket No.: 20070251
Filing Date: 4/17/2008
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A Medicaid-qualifying trust is considered an available asset for Medicaid eligibility purposes.
A resulting trust in favor of the settlor arises not only where an intended trust fails altogether but also where it fails in part, and where the trust fails in part, there is a resulting trust of so much of the property as is not appropriated to the part of the trust that does not fail.
Public policy will not allow the social safety net for persons who are old, poor, and unfortunate to be exploited by those who are affluent.

State v. Hidanovic 2008 ND 66
Docket No.: 20070130
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: In considering whether to grant a new trial on the ground of juror misconduct, a district court must decide whether there was misconduct and, if so, whether the misconduct could have affected the verdict of a hypothetical average juror.
A juror generally may not testify about matters or statements occurring during the course of the jury's deliberations, but may testify regarding the receipt of extraneous prejudicial information or improper outside influence.
If evidence of possible extraneous prejudicial information or outside influence is discovered, the proper procedure is to cease investigation to reduce the possibility of juror taint from extrajudicial pressures and to notify the court so it can conduct appropriate questioning.
The rule excluding juror testimony about statements during deliberations does not preclude evidence to show a juror lied during voir dire.
To prevail on a motion for new trial on the ground of newly discovered evidence, a defendant must show the evidence was discovered after trial, the failure to learn about the evidence at the time of trial was not the result of the defendant's lack of diligence, the newly discovered evidence is material to issues at trial, and the weight and quality of the newly discovered evidence would likely result in an acquittal.
In ruling on the relevancy of evidence, a district court has broad discretion to balance the probative value of the evidence against the risk of unfair prejudice.
Determining the admissibility of an out-of-court photographic identification of a defendant involves a two-step inquiry to determine whether the photographic identification procedure was suggestive, and whether the identification was, under the totality of the circumstances, reliable.

State v. Kieper 2008 ND 65
Docket No.: 20070100
Filing Date: 4/17/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Maring, Mary

Highlight: Mere suspicion that criminal activity is taking place, which may warrant further investigation, does not rise to the level of probable cause to support issuance of a search warrant.
Issues not raised before the district court will not be considered for the first time on appeal.

City of Fargo v. Levine 2008 ND 64
Docket No.: 20070098
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: The government will be ordered to produce source code for the Intoxilyzer only if the defendant establishes that the code is material and that the code is within the possession, custody, or control of the government.

State v. Herbel 2008 ND 63
Docket No.: 20070344
Filing Date: 4/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Conviction of possession of marijuana by a driver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Wessman v. Wessman 2008 ND 62
Docket No.: 20070069
Filing Date: 3/31/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous.
Under N.D.C.C. 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.
When there is credible evidence of domestic violence, it dominates the hierarchy of "best interest" factors to be considered.
When a district court addresses whether evidence of domestic violence triggers the presumption under N.D.C.C. 14-09-06.2(1)(j), we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.

Stanhope v. Phillips-Stanhope 2008 ND 61
Docket No.: 20070137
Filing Date: 3/27/2008
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.

Sauby v. City of Fargo 2008 ND 60
Docket No.: 20070202
Filing Date: 3/25/2008
Case Type: Certified Question - Civil - Civil
Author: Sandstrom, Dale

Highlight: A home rule city may not impose fees for noncriminal traffic offenses that exceed the limits set forth for equivalent violations under state law.
General language in judicial opinions must be read in the context of the issues before a court.
A court will not follow opinions of the Attorney General if they are inconsistent with the statutory interpretation that the court deems reasonable.

Olson v. Workforce Safety and Insurance 2008 ND 59
Docket No.: 20070094
Filing Date: 3/25/2008
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Under the 2003 version of N.D.C.C. 65-01-02(5)(b), the calculation of a self-employed worker's average weekly wage was based upon the net profit shown on Schedule C of his preceding year's tax return.

Hitz v. Hitz 2008 ND 58
Docket No.: 20070211
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Kapsner, Carol

Highlight: A trial court must start with a presumption that all property held by either party, whether held jointly or individually, is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.
After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.
A trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value, and a marital property valuation within the range of the evidence presented to the district court is not clearly erroneous.

Erickson, et al. v. Brown, et al. 2008 ND 57
Docket No.: 20070044
Filing Date: 3/24/2008
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A complaint is construed in the light most favorable to the plaintiff and may not be dismissed for failure to state a claim unless it discloses with certainty the impossibility of proving a claim upon which relief can be granted.
A claim for fraud applies to parties to a contract while a claim for deceit applies where there is no contract between the parties.
A promise made without any intention of performing may be deceit.
Legal issues entitling a party to a jury trial are tried to a jury before disposition of equitable issues triable to the court, and whenever the issues are so interrelated that a decision in the nonjury portion might affect the decision of the jury portion, the jury portion must be tried first.
There is no implied covenant of good faith and fair dealing in the employment context.
Nonprejudicial errors constitute harmless error and are not grounds for reversal.

Serr v. Serr 2008 ND 56
Docket No.: 20070231
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.

Young v. Young 2008 ND 55
Docket No.: 20070293
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.

Niemann v. Niemann 2008 ND 54
Docket No.: 20060332
Filing Date: 3/20/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.

Buchholtz v. Director, N.D. Dept. of Transportation 2008 ND 53
Docket No.: 20070241
Filing Date: 3/20/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed.
"Observing" a DUI arrestee is not the only manner of "ascertaining" that the arrestee had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

State v. Jacobsen 2008 ND 52
Docket No.: 20070105
Filing Date: 3/20/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: An order revoking probation is reviewed under a two-step analysis, determining (1) whether the factual finding of a probation violation was clearly erroneous and (2) whether the district court abused its discretion when it decided revocation of probation was warranted.
Although the State generally has the burden of proving by a preponderance of the evidence that the defendant violated the terms of probation, when revocation proceedings are triggered by a failure to pay restitution, the defendant has the burden to raise and prove an inability to pay restitution as ordered by the court.
A sentencing court generally may revoke probation and impose incarceration for failure to pay restitution only after considering the reason for nonpayment and whether there are adequate alternative forms of punishment, but this limitation does not apply when restitution is ordered as part of a plea agreement.