http://www.ndcourts.gov/Search/Opinions.asp Opinions from the North Dakota Supreme Court http://www.ndcourts.gov/xml/seal.gif http://www.ndcourts.gov/Search/Opinions.asp http://www.ndcourts.gov/court/opinions/20090168.htm 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. Tue, 26 Jan 2010 12:04:27 CDT http://www.ndcourts.gov/court/opinions/20080285.htm 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. Tue, 26 Jan 2010 12:04:27 CDT http://www.ndcourts.gov/court/opinions/20090114.htm 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. Tue, 26 Jan 2010 12:04:27 CDT http://www.ndcourts.gov/court/opinions/20090182.htm A person can be committed as a sexually dangerous individual when the State demonstrates by clear and convincing evidence that the three-prong commitment analysis has been satisfied. The first prong requires a showing that the individual has engaged in sexually predatory conduct. The second prong requires a showing that the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction. The third prong requires a showing that the individual is likely to engage in further acts of sexually predatory conduct and that the individual has serious difficulty controlling his behavior.
Only sexually predatory conduct can be considered in determining whether an individual satisfies the first prong of the sexually dangerous individual commitment analysis. All conduct of a sexually predatory nature can be considered in determining the second prong. All relevant conduct can be considered in determining the third prong.
Incest between consenting adults is not sexually predatory conduct as defined by N.D.C.C. 25-03.3-01(9). Tue, 26 Jan 2010 12:04:27 CDT http://www.ndcourts.gov/court/opinions/20090155.htm When a party fails to file a timely appeal from an adverse decision of a local zoning board, the decision is final and the party may not collaterally attack the decision in a different proceeding. Tue, 26 Jan 2010 12:04:27 CDT http://www.ndcourts.gov/court/opinions/20090308.htm A driver need not consent to the location where a blood draw for purposes of testing blood alcohol content will be conducted.
A driver must suffer the consequences of an officer's reasonable interpretation of the driver's conditional response to a request to submit to chemical testing. Tue, 26 Jan 2010 12:04:27 CDT http://www.ndcourts.gov/court/opinions/20090045.htm A denial of a motion for new trial is reviewed under the abuse-of-discretion standard.
When a district court has chosen a specific jury instruction, a reviewing court should not be quick to second-guess its choice if there is evidence or inferences from the evidence to support the instruction. Only scant evidence may be needed to support a jury instruction.
Under North Dakota law, counsel must object specifically to a contested jury instruction.
When a motion for a new trial is made, the party making the motion is limited on appeal to a review of the grounds presented to the lower court. Mon, 25 Jan 2010 11:53:04 CDT http://www.ndcourts.gov/court/opinions/20090120.htm The clear intent of N.D.C.C. ch. 65-05.1 is to rehabilitate an injured worker so the worker may return to substantial gainful employment, meaning actual rehabilitation with a realistic opportunity to return to work.
A rehabilitation plan is appropriate when it meets the requirements of N.D.C.C. ch. 65-05.1 and gives the claimant a reasonable opportunity to obtain employment.
WSI must take a claimant's preexisting functional limitations into account when determining whether certain employment options present an opportunity for substantial gainful employment. Fri, 15 Jan 2010 13:43:51 CDT http://www.ndcourts.gov/court/opinions/20090385.htm Suspension of lawyer ordered. Thu, 14 Jan 2010 12:21:37 CDT http://www.ndcourts.gov/court/opinions/20090131.htm Admission to Practice Rule 13 is neither subordinate to N.D.C.C. 44-04-18 nor unconstitutional under N.D. Const. art. XI, sec. 6.
The Supreme Court has the authority to admit attorneys to the Bar of North Dakota.
Where courts of this State have construed a statute and such construction is supported by the long acquiescence on the part of the legislative assembly and by the failure of the assembly to amend the law, it will be presumed that such interpretation of the statute is in accordance with legislative intent. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090117.htm At trial, a party must renew an objection made in a pretrial motion to exclude evidence to properly preserve the issue for appellate review.
Authentication of evidence is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
The proponent of offered evidence need not rule out all possibilities inconsistent with authenticity or conclusively prove the evidence is what it purports to be; rather, the proponent must provide sufficient proof, including circumstantial evidence, for a reasonable juror to find the evidence is what it purports to be.
A party's own statement is not hearsay. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090118.htm A pattern of parental conduct can form a basis for a reasonable prediction of future behavior.
The juvenile court may extend a dispositional order if it finds the child is deprived and reasonable efforts have been provided to finalize the permanent plan or reunify the child with the parents.
The custodian has an obligation and right to determine the nature of care, placement, and treatment of a child considering the child's best interests. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090135.htm The definition of a sexually dangerous individual, in addition to the three statutory requirements, requires a nexus between the disorder and dangerousness, including evidence showing the individual to be committed has serious difficulty controlling his behavior, which distinguishes a sexually dangerous individual from other dangerous persons. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090195.htm Disciplinary proceedings are reviewed de novo on the record.
Because the hearing panel has the opportunity to hear witnesses and observe their demeanor, special deference is given to the hearing panel's findings on matters of conflicting evidence. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090111.htm Under the Uniform Commercial Code a security agreement may create a security interest in after-acquired collateral and may provide that the collateral will secure any obligation, including all existing and future loans or advances.
A party may not use extrinsic evidence to directly contradict express, unambiguous terms of a contract. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090065.htm A district court may determine the proper weight to assign to a custody investigator's recommendations, and the court's award of custody will not be overturned unless clearly erroneous.
When awarding spousal support, a district court must consider the factors under the Ruff-Fischer guidelines and explain the basis for its award.
A district court's award of attorney fees will not be overturned absent an abuse of discretion.
A district court shall not use an extrapolated annual income to calculate a party's child support obligation unless the court specifically finds the income reflected by the party's previous tax return is not an accurate indicator of future income. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090244.htm Judgment denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7). Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090154.htm A probationer's right to counsel at a revocation of probation hearing is statutorily based.
A probationer's waiver of the right to counsel must be voluntary, knowing, and intelligent.
Whether a probationer voluntarily, knowingly, and intelligently waived the right to counsel is reviewed under a clearly erroneous standard of review. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090043.htm In some cases, exceptional circumstances may require, in a child's best interests and in order to prevent serious harm or detriment to the child, that the child should have visitation with a third party.
In each case in which custody to a third party rather than to a natural parent has been upheld, the child has been in the actual physical custody of the third party for a sufficient period in which to develop a "psychological parent" relationship with that party. Tue, 12 Jan 2010 15:11:04 CDT http://www.ndcourts.gov/court/opinions/20090366.htm Judgeship retained at Williston. Wed, 6 Jan 2010 16:38:17 CDT