New Opinions: July 18
State v. Prescott
Docket No.: 20230325
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam
Highlight: A criminal judgment for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Schweitzer v. State
Docket No.: 20240045
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Crothers, Daniel John
Highlight: A petitioner for postconviction relief must show how his counsel was ineffective through law, rules, or evidence, and cannot rely solely on conclusionary statements.
State v. Evitt
Docket No.: 20240077
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John
Highlight: Hunting without a license and violating a governor's proclamation are crimes in North Dakota that the State has authority to prosecute and the district courts have jurisdiction to redress.
The sovereign citizen defense, under which adherents claim they can deny the courts' jurisdiction, is without merit.
Durr v. Volden, et al.
Docket No.: 20240029
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John
Highlight: In a trust relationship, a beneficiary has the burden of establishing their fiduciary made unaccounted-for withdrawals or made suspicious transactions that indicate undue influence. If the beneficiary proves this, a court must presume undue influence occurred for any benefit gained by the fiduciary. To avoid liability to the beneficiary for the transactions, the fiduciary must rebut the presumption to show no undue influence occurred.
Schoenberg v. Schoenberg
Docket No.: 20240044
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair
Highlight: Under the residual exception to the hearsay rule, a hearsay statement is admissible if the statement is supported by sufficient guarantees of trustworthiness and it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The proponent failed to show that a letter containing hearsay statements from the children is more probative than affidavits or declarations from the children, or that the affidavits or declarations could not have been obtained through reasonable efforts.
If more than two years have passed since the court entered judgment establishing residential responsibility, a prima facie case consists of factual allegations sufficient to support a finding of a material change in circumstances and that a change is necessary to serve the best interests of the child. The changed circumstances must have adversely affected the child, or there must have been a general decline in the condition of the child. A significant other moving into the home and counseling are material changes in circumstances. The moving party failed to show the changed circumstances adversely affected the children or that there has been a general decline in the condition of the children.
Wootan v. State
Docket No.: 20240025
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam
Highlight: A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Ritter v. Ritter
Docket No.: 20240041
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair
Highlight: A trial court's property valuations and division of the parties' assets and debts, and refinancing of debts are findings of fact subject to the clearly erroneous standard of review.
A trial court may weigh spouses' competing testimony on the value of marital property. A trial court's valuation of marital property is not clearly erroneous if the findings are within the range of evidence provided.
Whether a trial court includes an indemnity provision in a divorce judgment is dependent upon the facts of the case, subject to the clearly erroneous standard.
When determining whether to award spousal support, the trial court must consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, and the ability of the other spouse to pay.
Under the child support guidelines, a district court may average an obligor's income when calculating his or her income for child support purposes if the obligor has a fluctuating income. The guidelines specifically provide where gross income is subject to fluctuation, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.
Interest of O.F.
Docket No.: 20240136
Filing Date: 7/18/2024
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Tufte, Jerod E.
Highlight: A district court order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Section 27-20.3-20(1)(c)(2), N.D.C.C., does not require 660 nights to have passed since placement of a child into care to satisfy the statute. The plain language of the statute requires the child be in care for at least 450 nights of the previous 660 nights.
State v. Juneau
Docket No.: 20230314
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: Jensen, Jon J.
Highlight: A jury verdict finding a defendant guilty of robbery under N.D.C.C. § 12.1-22-01(2) while simultaneously determining he did not direct the force of a deadly weapon against the victim is legally inconsistent.
Interest of H.W.
Docket No.: 20240172
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam
Highlight: Orders for hospitalization and involuntary treatment with medication are summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Warner v. Warner
Docket No.: 20240047
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Child Support
Author: Bahr, Douglas Alan
Highlight: Under N.D.C.C. § 14-09.1-07, a family law mediation agreement is not binding upon the parties until approved by order of the court.
The district court did not abuse its discretion when it denied the defendant's motion to set aside the judgment.
State v. Ritter
Docket No.: 20230337
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Tufte, Jerod E.
Highlight: A criminal judgment entered after a jury conviction of sexual assault is reversed because the district court abused its discretion by admitting video of a forensic interview without weighing the probative value against the prejudicial effect.
A court is vested with discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence, but opening the door for the admission of otherwise inadmissible evidence is not unlimited.
A court must first consider whether and to what extent the door has been opened regarding a particular topic. When the door has been opened, the court must also consider, under N.D.R.Ev. 403, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Gerszewski v. Rostvet (consolidated w/20230362 & 20230363)
Docket No.: 20230361
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.
Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.
A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.
The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.
Rostvet v. Gerszewski (consolidated w/20230361 & 20230363)
Docket No.: 20230362
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.
Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.
A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.
The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.
Rostvet v. Gerszewski (consolidated w/20230361 & 20230362)
Docket No.: 20230363
Filing Date: 7/18/2024
Case Type: Appeal - Civil - Other
Author: Tufte, Jerod E.
Highlight: A court may grant a disorderly conduct restraining order when a petitioner establishes, by reasonable grounds, that the respondent engaged in disorderly conduct. Disorderly conduct is defined as intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Reasonable grounds is synonymous with probable cause. A trespass is not disorderly conduct if there is no intent to adversely affect the safety, security, or privacy of another.
A district court may take judicial notice on its own of facts that are generally known within the court's territorial jurisdiction or facts that can be accurately determined from sources which cannot reasonably be questioned. When a district court takes judicial notice before notifying the parties, the parties, on request, are entitled to be heard.
The purpose of an appeal is to review the actions of the trial court, not to grant the appellant an opportunity to develop and expound upon new strategies or theories. The requirement that a party first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.
State v. Adams
Docket No.: 20230328
Filing Date: 7/18/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.
Highlight: The subsections in N.D.C.C. § 12.1-18-01(1) are alternative means of committing kidnapping and are not separate offenses.
When a defendant is charged and sentenced under an incorrect offense level, it is necessary to reverse and remand for resentencing.
