State v. Roberson , 1998 ND App 15 - Court of Appeals The testimony of law enforcement officers who said they observed the defendant in an intoxicated state and the testimony of a passing motorist who said he saw the defendant driving erratically and "staggering" after the accident was sufficient evidence to support the defendant's conviction for driving under the influence of intoxicating liquor. When an ineffective assistance of counsel claim is raised on direct appeal from a criminal conviction, the defendant must show ineffectiveness of constitutional dimensions from the face of the existing record to obtain relief.
City of Jamestown v. Snellman, et al. , 1998 ND 200 Dismissal of criminal charges because the prosecution is not ready to proceed with a pretrial evidentiary hearing is improper when the court has not considered alternative sanctions, and has not provided the prosecution with notice and an opportunity to be heard on the matter of sanctions. DeCoteau v. State , 1998 ND 199 When a conviction is summarily affirmed on direct appeal, the denial of an ineffective assistance claim is without prejudice to raising the issue in a post-conviction proceeding. When applicant for post-conviction relief shows potentially relevant and admissible testimony not introduced at trial, and trial counsel's failure to offer the evidence raises a reasonable inference of ineffective representation, a trial court errs by summarily denying the application without a hearing. Gregg v. Gregg , 1998 ND 204 Award of custody to the mother, even though she was away from the children for a considerable period while receiving additional education, was not clearly erroneous where the mother maintained a close bond with the children, was best able to promote their welfare, and was willing to facilitate the children's relationship with their father. Award of temporary spousal support to the wife was clearly erroneous where the wife's income and earning potential were greater than her spouse, who was ordered to pay the support. Hibl v. N.Dak. Workers Compensation Bureau , 1998 ND 198 The Bureau weighs the credibility of conflicting medical evidence, but the Bureau must consider the entire record, clarify inconsistencies, and explain its reasons for disregarding medical evidence favorable to the claimant. McGee v. Palczewski , 1998 ND 196 District court's judgment dismissing counterclaim summarily affirmed under N.D.R.App. P. 35.1(a)(2). Pic v. City of Grafton , 1998 ND 202 There is no "de novo" judicial review of decisions by local governing bodies under N.D.C.C. 28-34-01. Judicial review is limited to whether the decision is arbitrary, capricious, or unreasonable. City which held a hearing, considered the evidence, and concluded the cost of repairs exceeded the value of a structure did not act arbitrarily, capriciously, or unreasonably in ordering its demolition. Schmalle v. Schmalle , 1998 ND 201 A change in custody and resulting child support obligation is not a material change in circumstances justifying an award of spousal support to the child support obligor. When an employee spouse retires, a trial court may clarify and construe a division of retirement benefits in a prior divorce decree to implement a Bullock formula for allocation of the benefits. Under 11 U.S.C. 523(15), a debt arising from a division of marital property is discharged in bankruptcy unless the non-debtor spouse brings an adversarial proceeding in bankruptcy court to have the debt declared nondischargeable. Schmitz v. Schmitz , 1998 ND 203 For purposes of modifying spousal support, a contemplated change is one taken into consideration by the district court when fashioning the original decree. The inability of ex-spouse to reach maximum rehabilitation may be a changed circumstance warranting a modification of spousal support. State v. Ballensky , 1998 ND 197 Conduct prior to imposition of sentence to probation does not violate the terms of probation. State v. Petersen , 1998 ND 195 Conviction of aggravated assault summarily affirmed under N.D.R.App.P. 35.1(a)(4).
November 13, 1998
Beck v. Job Service North Dakota , 1998 ND App 14 - Court of Appeals A claimant who is able to work part-time may be eligible for unemployment benefits under N.D.C.C. 52-06-01(3).
November 4, 1998
Rebel v. Nodak Mutual Insurance Company , 1998 ND 194 Unless there is a contractual assignment of an insured's rights against the insurer to an injured person, or a statute effectively conferring such a right to the injured person, the injured person has no standing to challenge whether the insurance policy provides coverage for the injury.
November 3, 1998
Larsen v. Commission on Medical Competency , 1998 ND 193 An administrative agency must consider favorable and unfavorable evidence. If authorized by law and justified in fact, imposition of a regulatory sanction by an administrative agency will not be disturbed on review, absent a manifest abuse of discretion. A district court does not err by denying a party's motion for leave to offer additional evidence under N.D.C.C. 28-32-18 when the party had an opportunity to attend the administrative hearing and present evidence, but failed to do so.