Slip opinions decided 2025 — North Dakota Reports

Under N.D.C.C. § 12.1-32-06.1, a defendant cannot be ordered to a third period of probation. The statute allows for an initial period of probation and one additional period of probation not to exceed five years. A district court order denying in part a motion for reduced sentence is affirmed.

An amended judgment denying applications for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court's continuing treatment order is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

The authority of an administrative agency to adopt administrative rules is authority delegated by the legislative assembly. A properly promulgated regulation has the force and effect of law. A regulation that exceeds or supersedes an agency's statutory authority or conflicts with the statute it implements is invalid. The rationale for this principle is that allowing an administrative agency to promulgate rules that include substantive matters not included in the statute under which it is acting constitutes an improper delegation of legislative power. The legislature has not specifically authorized WSI to promulgate rules regulating the proof required to establish compensability for a mental or psychological condition. WSI exceeded its authority when it promulgated a rule imposing specific burdens and limitations not present in the statute the rule implements.

A criminal judgment entered after a defendant pleaded guilty to eleven sexual offenses is affirmed. Generally, an open plea waives all non-jurisdictional claims and defenses, including multiplicity challenges. Only in an extraordinary case will a sentence for a term of imprisonment within the statutory sentencing limits violate the Eighth Amendment's prohibition against cruel and unusual punishments.

Obvious error review consists of determining whether (1) there was an error, (2) that was plain, and (3) that affected a party's substantial rights. Obvious error review is applied only to prevent an unjust conviction, or the exceptional situations where the defendant has suffered serious injustice. When a defendant fails to object to a proposed instruction properly, or fails to specifically request an instruction or object to the omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited to whether the jury instructions constitute obvious error affecting substantial rights. When prosecutorial misconduct is raised for the first time on appeal, review is limited to determining whether the prosecutor's conduct prejudicially affected the defendant's substantial rights, so as to deprive the defendant of a fair trial. Review on appeal of a sentence is generally confined to whether the district court acted within the statutory sentencing limits or substantially relied on an impermissible factor.

A district court judgment denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A criminal judgment entered after a jury convicted the defendant of child abuse is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A disorderly conduct restraining order may not be granted without a full evidentiary hearing. It is better practice for a petitioner to present evidence through testimony, rather than through an inadmissible affidavit and petition. The respondent shall have an opportunity to contest the restraining order by offering admissible evidence or through cross-examination. A disorderly conduct restraining order must not conflict with a parental responsibility order.

A disorderly conduct restraining order is affirmed. Before a court grants a petition for a disorderly conduct restraining order, the court must conduct a full hearing. N.D.C.C. § 12.1-31.2-01(4). The full hearing contemplated by N.D.C.C. § 12.1-31.2-01 is a special summary proceeding, intended to quickly and effectively combat volatile situations before any tragic escalation. The concern for expeditious proceedings should not override the need to fairly resolve factual disputes. When the court employs a procedure which fails to afford a party a meaningful and reasonable opportunity to present evidence on the relevant issues, the court has abused its discretion and violated the party's due process rights.

A district court judgment, order for contempt, and order for attorney's fees, are summarily affirmed under N.D.R.App.P. 35.1(a)(2) & (4).

Section 39-20-04.1, N.D.C.C., provides the Department with authority to suspend a driver's driving privileges. Section 39-20-03.1(4), N.D.C.C., lists procedures a law enforcement officer must follow when a person has tested over the legal limit for driving under the influence. An officer's non-compliance with a provision of N.D.C.C. § 39-20-03.1(4) does not impact the Department's authority to suspend a driver's driving privileges unless the provision is basic and mandatory. A provision is basic and mandatory if it mirrors a provision of N.D.C.C. § 39-20-04.1(1). A provision of N.D.C.C. § 39-20-03.1(4) mirrors a provision of N.D.C.C. § 39-20-04.1(1) when the officer's compliance with the provision provides to the Department information important to the Department in determining its authority to suspend a license. The requirement in N.D.C.C. § 39-20-03.1(4) that the copy of the checklist and test records of a breath test be "certified" is not a basic and mandatory provision impacting the Department's authority to suspend a driver's driving privileges.

A criminal judgment entered following a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

An order denying a motion for relief from judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1).

Application of the Uniform Mandatory Disposition of Detainers Act is limited to those instances where a detainer has been filed against a person imprisoned in a penal or correctional institution in North Dakota already serving a sentence within the state. The UMDDA does not apply to prisoners who have been released on parole because the person is no longer imprisoned serving a sentence for a term of commitment. A defendant who stipulates the statutory habitual offender requirements were met waives any alleged procedural defects by the district court in applying the habitual offender sentencing enhancements.

The law on partition of property, N.D.C.C. ch. 32-16, controls the distribution of property accumulated by unmarried partners and cohabitants. Although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property. Section 32-16-01, N.D.C.C., authorizes proceedings to partition property according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners. Real and personal property may be partitioned in the same action. Five elements are required to establish unjust enrichment: 1. An enrichment; 2. An impoverishment; 3. A connection between the enrichment and the impoverishment; 4. Absence of a justification for the enrichment and impoverishment; and 5. An absence of a remedy provided by law. A reviewing court needs to know the reasons for the trial court's decision before it can intelligently rule on the issues, and if the trial court does not provide an adequate explanation of the evidentiary and legal basis for its decision, the reviewing court is left to merely speculate whether it properly applied the law.

A district court's order summarily dismissing an application for postconviction relief is affirmed.

The Indian Child Welfare Act ("ICWA") has no exception for incarceration and neither incarceration nor doubtful prospects for rehabilitation will relieve a Human Service Zone of its duty under ICWA to make active efforts. The circumstances surrounding a parent's incarceration may have a direct bearing on what active efforts are possible. The juvenile court may consider a Human Service Zone's involvement in its entirety in evaluating active efforts rather than focusing on efforts directed at each parent individually. ICWA does not clarify the scope of the expert testimony required, nor does it require that the expert testimony provide the sole basis for the juvenile court's conclusion.

A criminal judgment entered after a jury convicted the defendant of robbery, accomplice to theft, and theft of a credit device is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

A criminal defendant who advises the district court that he intends to represent himself, and does so at each hearing after acknowledging an understanding of the rights afforded to him, constitutes the functional equivalent of a voluntary waiver of counsel. A defendant knowingly and intelligently waives his right to counsel when he decides to represent himself after being advised the dangers and disadvantages of self-representation.

A district court erred in its application of N.D.C.C. § 10-19.1-88. The North Dakota Business Corporations Act, N.D.C.C. ch. 10-19.1, provides significant protections and remedies to minority shareholders. Upon the sale of a corporation, N.D.C.C. § 10-19.1-87 affords dissenting shareholders the option to obtain the fair value of their shares. Section 10-19.1-87, N.D.C.C., outlines the rights of dissenting shareholders and N.D.C.C. § 10-19.1-88 establishes the procedures for payment.

District courts must consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, and the ability of the other spouse to pay when determining whether to award spousal support. A party who fails to provide evidence of net income waives any argument that he or she did not have the ability to pay spousal support. A district court considers the Ruff-Fischer factors when distributing marital property. The court must consider the length of a marriage in determining an equitable division of the marital estate under the Ruff-Fischer guidelines. In a short-term marriage, the court may return to the parties what they brought into the marriage, but the division of property and debt must be equitable. The guiding principle for an award of attorney's fees is one party's need and the other party's ability to pay. The district court may also consider whether a party's actions have unreasonably increased the time and efforts spent on the dispute.

A district court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court order denying a motion for return of seized property is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

A district court order granting summary judgment and judgment, and award of attorney's fees are reversed.

A district court order directing distribution of trust assets is reversed. When a trust agreement provides for specific devises of land but that land is sold prior to the trust's termination, each beneficiary is entitled to a share of the remaining proceeds of the sale of the land proportionate to the value of each beneficiary's specific devises.

A district court judgment affirming an administrative hearing officer's decision to suspend driving privileges for 365 days for driving under the influence of alcohol is reversed. The North Dakota Department of Transportation fails to show an Intoxilyzer test was fairly administered when an officer's deviation from the approved method was such that the Court cannot say, without expert advice, that the officer's deviation from the approved method did not affect the test results. When the deviation from the approved method could not have affected the reliability or accuracy of the test results, the deviation does not render the test results inadmissible. The approved method provides that, upon receiving a result of "Difference Too Great," an "operator shall wait another 20 minutes and ensure the subject has had nothing to eat, drink, or smoke before repeating the Intoxilyzer 8000 test." We interpret "before repeating the Intoxilyzer 8000 test" consistent with the language of the approved method as a whole to require an officer to wait 20 minutes before beginning a subsequent test sequence. A breath test record showing a period of time less than 20 minutes between test sequences cannot prima facie establish the test was administered in accordance with the approved method because the approved method expressly requires an operator to wait 20 minutes before repeating the test sequence. Failure to wait 20 minutes before beginning the second testing sequence is the type of deviation from the approved method which may have affected the scientific accuracy or reliability of the test. Absent expert testimony on the likely effect of this deviation, the Department fails to show the test was fairly administered.

A district court judgment denying and dismissing a complaint for declaratory judgment is affirmed. A district court's findings that an individual lacked capacity to enter into the option to purchase does not preclude a finding that the individual was of unsound mind, rendering the option to purchase voidable under N.D.C.C. § 1401-02. The standard to determine whether an individual lacks capacity to enter into a contract is distinct from the standard whether a contract or other conveyance is voidable under N.D.C.C. § 14-01-02.

A criminal judgment entered after a jury found the defendant guilty of manslaughter and reckless endangerment with a firearm is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Whether an obligor can control the receipt of trust funds is not relevant to whether the funds are income for child support purposes. A court calculating a parent's child support obligation is concerned with whether the parent receives income from the trust. The child support amount is presumed to be the correct amount, but can be rebutted by a preponderance of the evidence if it is in the best interest of the children and one of the criteria in N.D. Admin. Code § 75-02-04.1-09(2) is met. The court must make specific findings demonstrating why the guideline amount has been rebutted. A court may order the obligor maintain a life insurance policy as reasonable security for child support payments. A party moving to amend a judgment under Rule 59, N.D.R.Civ.P., bears a heavy burden of showing sufficient grounds for disturbing the final judgment.

Child support determinations involve questions of law, which are fully reviewable, findings of fact subject to the clearly erroneous standard, and in some areas, matters of discretion subject to the abuse of discretion standard. The party seeking to modify a child support obligation has the burden to provide appropriate and reliable information to support a modification of child support. Issues are not adequately briefed when an appealing party fails to cite any supporting authority, and this Court will not consider them on appeal.

Juvenile court orders terminating parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

An applicant for postconviction relief based on ineffective assistance of counsel must satisfy the test in Strickland v. Washington, 466 U.S. 668, 688-90 (1984). Under Strickland's test, the applicant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Motion to reconsider order of dismissal denied.

The Department bears the burden of proving a chemical breath test result was fairly administered. If the Department fails to establish compliance with the approved method which goes to the scientific accuracy and reliability of the test, the Department must prove fair administration of the test through expert testimony. When it is ready for the second breath sample, the Intoxilyzer 8000 displays, "Please Blow Until Tone Stops." The word "until" in this context signifies the point at which the driver should cease blowing into the instrument. Repeatedly blowing into the Intoxilyzer after the tone stopped is contrary to the instructions displayed by the Intoxilyzer 8000 and, thus, the approved method. Unless the impact of a deviation is within the knowledge of an ordinary person, it is the Department's burden to show through expert testimony whether a deviation from the approved method impacted the accuracy and reliability of the test. An ordinary person does not know what impact, if any, a subject's repeated blowing into the Intoxilyzer after the tone stops has on the test results. When the officer's deviations from the approved method involve the procedures for collecting and testing the sample, it raises the possibility that the deviation impacted the test result. Even though the Department's action is not upheld by a court, a party is not entitled to attorney's fees and costs under N.D.C.C. § 28-32-50(1) when the Department acted with substantial justification in its decision.

A Brady violation is established when the defendant proves the government possessed evidence favorable to the defendant, the defendant did not possess the evidence and could not have obtained it with reasonable diligence, the prosecution suppressed the evidence, and a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed. To prevail on a Brady claim a defendant must satisfy all four prongs or factors of the legal test. When an issue is not raised at the trial court, this Court will not address the issue on appeal unless the alleged error rises to the level of obvious error. A defendant's due process rights may be violated by a prosecutor's actions that constitute misconduct that has a prejudicial effect.

A judgment which adjudicates all claims and does not anticipate or direct further action is appealable. When interpreting a contract, N.D.C.C. § 9-07-06 provides that the whole of a contract is to be taken together so as to give effect to every part if reasonably practicable. If the granting clause describes the land as being an undivided interest in the land and a subsequent reservation which reserves a fractional part of the "land conveyed," or words of similar import, the reservation will be construed as reserving to the grantor the stated fractional interest of the fraction described in the granting clause. A Duhig problem does not arise when a grantor, who owns an undivided onehalf (1/2) interest in a parcel of land via partnership, conveys the undivided onehalf (1/2) interest in the land's surface and a one-fourth (1/4) interest in land's minerals but reserves for himself the other one-fourth (1/4) interest in the minerals of the same land. An oral contract can be enforced only when the parties have agreed on its essential terms. Indefiniteness as to any essential element of the agreement may prevent the creation of an enforceable contract. Stipulations as to the law are also invalid. Language tying a royalty interest to another interest, such as a one-eighth royalty interest of an eight percent interest, creates a floating royalty.

A district court did not abuse its discretion when setting the commencement date for the new child support obligation one year from the date of the motion to modify. A district court did not err in ruling that timely requests for health insurance related reimbursements was not necessary when the requests became futile and when the amount owed to the parent making the requests is the same amount each month. A district court's findings removing one parent's ability to make day-to-day decisions are not clearly erroneous.

The Court affirms the Department of Health and Human Services Division of Vocational Rehabilitation decision to discontinue vocational rehabilitation services. The application and interpretation of a statute is a question of law that is fully reviewable in an administrative appeal. Administrative regulations are derivatives of statutes and are construed under rules of statutory construction. Statutory interpretation is a question of law, fully reviewable on appeal. The North Dakota Department of Health and Human Services administers vocational rehabilitation services with federal funding through the State Vocational Rehabilitation Services Program. The federal statutes and attendant regulations governing the State Vocational Rehabilitation Program are clear that the provision of vocational rehabilitation services is premised on assisting disabled individuals achieve competitive integrated employment. To satisfy the requirements of competitive integrated employment, a job position must meet each of the elements articulated under 34 C.F.R. §?361.5(c)(9). Whether a job position meets the requirements of competitive integrated employment is determined on a case-by-case basis. The clear and convincing standard applies only to eligibility determinations for vocational rehabilitation services. For all other agency determinations, the preponderance of the evidence standard applies.

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).

An order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

In general, a lengthy marriage supports an equal division of all marital assets. The origin of the property, such as inheritance, is only one factor to consider under the Ruff-Fischer guidelines. Preserving the viability of a business operation like a family farm is important and liquidation of an ongoing farming operation or business is ordinarily a last resort. This laudable purpose, however, is to be achieved only if it is possible to do so without detriment to the other party. The goal of preserving a farming business does not call for a windfall for one spouse. Property divisions are based on the particular circumstances of each case. Ordering the sale of a ranch is not erroneous where the party challenging the sale only proposed an unequal division of the property and did not show he depends on the ranching operation for his livelihood; the location, quantity, or value of the minerals is relatively unknown; and the ranch would otherwise be difficult to divide.

Whether a criminal defendant is competent to stand trial is a question of fact reviewed under the clearly erroneous standard. When a court has found a defendant facing felony charges to be unfit to proceed, N.D.C.C. § 12.1-04-08 contemplates attempted rehabilitation.

A district court order and judgment denying an application for postconviction relief is affirmed. Conspiracy to commit intentional murder under N.D.C.C. § 12.1-16-01(1)(a) is a cognizable offense. A defendant pleads guilty by Alford plea to a cognizable offense if sufficient factual basis supports the conviction. A simultaneous Alford plea to a noncognizable offense may be harmless error.

A two-step analysis is required to determine whether an order is appealable. First, for this Court to have appellate jurisdiction, the order being appealed must meet statutory criteria for appealability. Second, for this Court to consider the appeal at this time, the requirements of N.D.R.Civ.P. 54(b) must have been satisfied.

A district court did not abuse its discretion in allowing the State's only witness to appear remotely using reliable electronic means. The factual basis was sufficient to conclude Didier has an inability to control his behavior. An order denying his petition for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Section 12.1-32-02(2), N.D.C.C., requires the time spent in custody to be as a result of either the charge for which the sentence was imposed or the conduct on which the charge was based. The Court will review a claim of an illegal sentence even when the defendant did not raise this argument below by objecting at sentencing or through a motion under N.D.R.Crim.P. 35(a). Any credit for good time the defendant is entitled to must be stated in the criminal judgment.

A district court's award of primary residential responsibility is a finding of fact reviewed under the clearly erroneous standard of review. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, after reviewing the entire record, this Court is left with a definite and firm conviction a mistake has been made. The district court does not retain continuing jurisdiction to modify a final property distribution. Except as may be required by federal law for specific property, the valuation date for marital property and debt is the date mutually agreed upon between the parties. If the parties do not mutually agree upon a valuation date, the valuation date for marital property and debt is sixty days before the initially scheduled trial date. If there is a substantial change in value of an asset or debt between the date of valuation and the date of trial, the court may adjust the valuation of that asset or debt as necessary to effect an equitable distribution and shall make specific findings that another date of valuation is fair and equitable. Spousal support and property distribution are interrelated and intertwined and must be considered together. A party may not raise an issue or contention that was not previously raised or considered in the lower court for the first time on appeal. When calculating child support, there must be evidence of the value of the items a party seeks to have included as in-kind income before the trial court may include those items in calculating an obligor's gross income. After awarding spousal support, the district court must include that amount as a part of gross income when calculating child support.

The district court did not abuse its discretion in concluding the petitioner did not establish a clear legal right to the city's issuance of a certificate of occupancy for his remodeled home that is out of compliance with the city's ordinances. The district court did not abuse its discretion in denying declaratory judgment plaintiff constructed an addition to his home in accordance with the city's ordinances when the evidence supports the court's findings the plaintiff did not comply with the city's ordinances. A total regulatory taking occurs when regulations completely deprive an owner of all economically beneficial use of an owner's property. For total regulatory takings, the complete elimination of a property's value is the determinative factor because the total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation. If a "special relationship" is established under the four elements provided by statute, a political subdivision may be liable for damages for injuries proximately caused by the negligence or wrongful act or omission of an employee acting within the scope of the employee's employment.

A district court has inherent power to take judicial notice in a preliminary proceeding where the rules of evidence do not apply, provided certain standards are met. The requirement in N.D.C.C. § 62.1-02-01(1)(b) that the predicate misdemeanor offense be "committed while using or possessing a firearm" does not require the use or possession of a firearm be an element of the predicate offense. Moreover, the requirement in section 62.1-02-01(1)(b) that the predicate misdemeanor offense be "committed while using or possessing a firearm" does not require the use or possession of the firearm in committing the predicate offense be proven or admitted to in the predicate criminal action. 0n a prosecution under N.D.C.C. § 62.1-02-01(1)(b), the State has the burden to prove the defendant used or possessed a firearm when the defendant committed the predicate offense. Under N.D.C.C. § 62.1-02-01(2)(b), a "conviction" includes a deferred imposition of sentence. A deferred imposition of sentence no longer exists when the court sets aside the verdict of guilty and dismisses the information. Section 62.1-02-01(2)(b) refers to a conviction for a deferred imposition of sentence that has not been dismissed.

When a motion to dismiss is based on different grounds than the ground the district court relied on to dismiss a claim, the court is required to give the parties notice of its intent to dismiss on new grounds and provide an opportunity to respond. A district court errs by misapplying the requirements of N.D.R.Civ.P. 8(a) and the standards for determining a motion to dismiss under N.D.R.Civ.P. 12(b)(6) when it demands more than "a short and plain statement of the claim," demands factual evidence to support the allegations, does not accept the allegations in the complaint as true, and does not construe the complaint in the light most favorable to the plaintiff. A complaint does not need to allege facts in anticipation of an affirmative defense. In a claim for intentional infliction of emotional distress, a district court must make the initial decision of whether the alleged conduct can reasonably be considered "extreme and outrageous." A court does not focus exclusively on the conduct and words, but considers the facts and circumstances on a case-by-case basis.

An affirmative defense is waived if it is not pleaded. A waived defense is not grounds for dismissal of an application for postconviction relief. Defendants who inexcusably fail to raise all of their claims in a single postconviction proceeding misuse the postconviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding. When the State has pleaded the defense of misuse of process, and a misuse of process has occurred, dismissal of an application for postconviction relief will be affirmed even if dismissal was ordered on other erroneous grounds. There is no constitutional right to counsel for postconviction proceedings. Absent a constitutional rule guaranteeing effective postconviction counsel, statutory law controls. Under N.D.C.C. § 29-32.1-09(2), ineffective assistance of postconviction counsel claims are prohibited, and the court is not required to wait for the State to file a motion before dismissing such claims.

Judgeship retained at Minot

A district court's order and judgment awarding primary residential responsibility is affirmed. Section 14-09-06.6, N.D.C.C., governs modifications of primary residential responsibility. When a party moves to modify a judgment awarding joint residential responsibility, N.D.C.C. § 14-09-06.6 does not apply. The district court must instead make an original determination regarding primary residential responsibility. We will not retry a primary residential responsibility case or substitute our judgment for a district court's initial primary residential responsibility decision merely because we might have reached a different result. A choice between two permissible views of the weight of the evidence is not clearly erroneous, and our deferential review is especially applicable for a difficult primary residential responsibility decision involving two fit parents.

A district court's judgment is reversed and remanded for reconsideration and a reasoned explanation of the district court's award of primary residential responsibility and parenting time, and distribution of property. A district court's findings of fact must be stated with sufficient specificity to enable a reviewing court to understand the factual basis for its decisions. In cases where a party has requested equal parental responsibility, and particularly where the court finds the parties are able to effectively communicate with each other, the district court must consider equal residential responsibility and articulate its reasoning sufficiently for appellate review. A district court's failure to explain the absence of extended summer parenting time is error, requiring remand for reconsideration and a reasoned explanation of the court's decision. While the marital home need not be irrevocably set aside to an heir, we have also explained that inherited property should be set aside to the heir where fairly possible.

A district court order denying a N.D.R.Crim.P. 35 motion to correct an illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).

The State's appeal from a district court's judgment of acquittal entered after the court granted the defendant's renewed N.D.R.Crim.P. 29 motion is dismissed. The court's ruling that there was insufficient evidence to sustain the defendant's conviction is a true judgment of acquittal from which the State is not permitted to appeal. The Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative exists. The fact that the State may be unable to appeal the district court's ruling does not necessarily create extraordinary circumstances justifying supervisory jurisdiction.

A district court judgment affirming a Job Service of North Dakota decision is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

This Court cannot discern a guilty plea is conditional when the judgment does not show the plea was conditional, the record does not show an order accepting the conditional plea, and there is no transcript showing the guilty plea was conditional or that the district court consented to the entry of a conditional guilty plea.

Title 65, N.D.C.C., does not specify where Workforce Safety and Insurance may appeal an administrative decision. Under N.D.C.C. § 28-32-42(3)(a), when no jurisdiction is designated by another law, appeals from administrative orders may be taken (1) to the district court of the county in which the hearing or part thereof was held, or (2) if there was no formal hearing, an appeal may be taken to the district court of Burleigh County.

The Court declined to answer the following certified question of law: "Is an unmarried couple able [to] adopt children under N.D.C.C. § 14-15-03(2)?" Rule 47.1 of the North Dakota Rules of Appellate Procedure authorize the Court to answer questions of law certified by a state district court when two conditions are met: (A) there is a question of law involved in the proceeding that is determinative of the proceeding; and (B) it appears to the district court that there is no controlling precedent in the decisions of the supreme court. When the district court has not halted proceedings, but rather has concluded them by dismissing the complaint, the certification procedure does not apply.

A district court judgment entered after a bench trial is reversed in part and remanded for further proceedings. If a trustee who is also one of the beneficiaries commits a breach of trust, the other beneficiaries are entitled to a charge upon his beneficial interest to secure their claims against him for the breach of trust. If a trustee-beneficiary has only a life interest in trust income, however, his beneficial interest terminates upon his death. Co-trustees may not offset against a life beneficiary's distribution to recoup losses resulting from the previous life beneficiary's breach of trust. Because an equitable lien attaches to an asset as security, it is improper to attach an equitable lien to an asset in which a deceased debtor had only a life interest.

A criminal judgment entered after a jury conviction of criminal mischief and stalking is affirmed. Without foundation testimony from the insurer, an insurer's letters regarding valuation of property constitute inadmissible hearsay if offered to prove value of the property at issue. Under the property owner rule, an owner may testify about the value of his property even if his opinion relies upon information from another. A district court's evidentiary error is harmless if improperly admitted evidence amounted to cumulative evidence.

A district court order for contempt is affirmed.

A divorce judgment entered after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

In a criminal case, the State may appeal from an order quashing an information or indictment or any count thereof. A dismissal for lack of probable cause, whether labeled an "order" or a "judgment," is appealable. Probable cause exists when the facts and circumstances are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed. The State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but rather need only produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty. To satisfy its probable cause burden, the State must have presented reasonable grounds to believe the defendant intended to place another human being in fear for that human being's or another's safety, or acted with reckless disregard of the risk of causing such terror, and threatened to commit a crime of violence or act dangerous to human life.

A district court judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).

Under the Sixth Amendment's Confrontation Clause, in all criminal prosecutions, the accused has the right to be confronted with the witnesses against him. The admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant. Statements are nontestimonial when the primary purpose is to enable police assistance to meet an ongoing emergency, and are considered testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Rule 901, N.D.R.Ev., provides for methods of authentication of evidence. All authentication requires is that the party offering an item of evidence produce evidence sufficient to support a finding that the item is what the proponent claims it is. Rule 803(1), N.D.R.Ev., provides an exception to the rule against hearsay for a statement describing or explaining an event or condition, made while or immediately after the declarant perceived the event or condition. Because N.D.R.Ev. 803(1) applied, a district court did not abuse its discretion by admitting a 911 call recording into evidence.

A motor vehicle operator arrested for driving under the influence or being in actual physical control has a limited statutory right to consult with an attorney. A person arrested for driving under the influence who asks to consult with an attorney before deciding to take a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test. Whether a person has been afforded a reasonable opportunity to speak with an attorney is determined by conducting an objective review of the totality of the circumstances. The appropriate inquiry is whether the police afforded an arrestee a reasonable opportunity to consult with counsel in a meaningful way.

A district court's judgment affirming an administrative law judge's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

This Court reviews an appeal from the dismissal of a criminal charge after a preliminary hearing under the abuse of discretion standard of review. At a preliminary hearing the State must produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty of committing the crime.

A party's due process rights were not violated by limiting the time of a hearing and preemptively allocating time to both parties. A district court did not abuse its discretion when it limits the length of a hearing. If a party desires more time for a hearing than a district court has scheduled, the party must object to the time limitations or move for a continuance. A district court is not required to conduct a best interests analysis if it finds there has been no material change in circumstances. A district court is not required to modify a residential responsibility judgment beyond the motion requested by a party.

An attorney's fees sanction under N.D.R.Civ.P. 11 must comply with safeguards in the rule. A court abuses its discretion by deeming an action frivolous if the claim is grounded in a good faith argument for an extension of the current interpretation of the law. A party is not entitled to attorney's fees under N.D.R.App.P. 38 if the action is not frivolous.

Judgeship retained at Bismarck

Judgeship retained at Grand Forks

The omission of a single juror's response to a jury poll in a trial transcript does not establish a violation of the constitutional right to a unanimous verdict when the record sufficiently demonstrates the existence of other safeguards ensuring that the jury was properly impaneled and returned a unanimous verdict free of coercion or pressure. The district court has wide discretion over the mode and order of presenting evidence, and over the use of extrinsic evidence to refresh memory or impeach a witness based on a prior inconsistent statement. A sentencing decision will only be vacated if the district court acted outside the limits prescribed by statute or substantially relied on an impermissible factor in determining the severity of the sentence.

A person with a felony conviction petitioning for a name change must prove by clear and convincing evidence that the name change request is not based upon an intent to defraud or mislead, is made in good faith, will not cause injury to an individual, and will not compromise public safety.

Interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment. A district court considers the Ruff-Fischer guidelines when distributing marital property. The "duration of the marriage" factor is only one factor and is the length of the marriage being dissolved by the court, irrespective of whether there was a prior marriage or marriages with the same party or another person. In a short-term marriage, the district court may return to the parties what they brought into the marriage, but the division of property and debt must be equitable.

A party must include affirmative defenses in its responsive pleading. A party may have privity with another party that bars new litigation under res judicata. Releases contained in a settlement agreement are subject to normal rules of contract interpretation.

A district court may consider economic misconduct as a basis for an unequal distribution of the marital estate. However, this Court has not previously recognized economic misconduct as a basis for increasing the marital estate through "potential" income or by imputing income. Attorney's fees awarded under N.D.C.C. § 14-09-29(4) against a perpetrator of domestic violence extends to the recovery for the costs and attorney's fees incurred in a subsequent appeal.

This Court will not consider an argument that is not adequately articulated, supported, and briefed. A party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.

To determine whether a defendant's right to counsel has been violated, this Court has developed a two-step inquiry: (1) whether the defendant's waiver was voluntary; and (2) whether the defendant's waiver was knowing and intelligent. A defendant may indicate a voluntary desire for self-representation with an unequivocal statement or with conduct that is the functional equivalent of such a statement. A knowing and intelligent waiver of the right to counsel depends on the facts and circumstances and requires the defendant to be made aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open. Motions for continuance must be promptly filed as soon as the grounds are known and will be granted only for good cause shown. This Court will not reverse a district court's decision to deny a continuance absent an abuse of discretion.

A criminal judgment entered after a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

This Court may summarily affirm judgments and orders when briefs do not meet the minimum requirements of the North Dakota Rules of Appellate Procedure. Under the applicable rules, if an electronically filed document is rejected, the tolling of the filing does not change the date of service, which is the date the document was transmitted. The statutory default valuation date under N.D.C.C. § 14-05-24(1) is "sixty days before the initially scheduled trial date," not the date of trial. When a court uses the parties' mutually agreed-to valuations, the court's finding of a different valuation date is harmless as to those assets and debts. A district court places a value on martial property based on the evidence presented by the parties. When the court is "not given much information" regarding the value of a marital asset, the court's decision is limited by the parties' failure to provide information.

An appeal from a district court judgment granting a motion for summary judgment is reviewed under the de novo standard. N.D.R.Civ.P. 56 allows a court to grant summary judgment for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. A district court did not err granting a motion for summary judgment dismissing a claim of medical malpractice because the plaintiff failed to provide an affidavit containing an expert opinion as required by N.D.C.C. § 28-01-46.

Juvenile court orders terminating parental rights are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Issues not raised at trial will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b). To establish obvious error, the defendant has the burden to demonstrate plain error which affected his substantial rights. However, if a party fails to argue obvious error, it is difficult for this Court to conclude this burden has been satisfied and this Court need not address it further. Under Rule 1004(a), N.D.R.Ev., an original is not required, and other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith.

A juvenile court order extending placement of a child in the custody and control of the Grand Forks County Human Service Zone for a period of twelve months after finding the child is a child in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A party seeking modification of primary residential responsibility two years after entry of the prior order establishing primary residential responsibility must establish a prima facie case justifying modification. A party must show a material change in circumstances and either a general decline in the condition of the child or that the material change has adversely affected the child. A party moving for primary residential responsibility is entitled to an evidentiary hearing only if new facts have arisen since the prior order constituting a material change of circumstances, and if modification serves the best interests of the child. Parents have a mutual responsibility to provide support for their children regardless of if the need arises during a parent's specified parenting time. A party must show a child has been adversely affected for there to be a material change in circumstances which warrants modification of the residential responsibility order.

A jury's verdict was summarily affirmed under N.D.R.App.P. 35.1(a)(3). A district court's order was summarily affirmed under N.D.R.App.P. 35.1(a)(4).

A juvenile court order terminating parental rights is summarily affirmed under N.D.R.App. 35.1(a)(2) and (4).

Jury instructions are fully reviewable on appeal and are reviewed as a whole to determine if they correctly and adequately inform the jury of the applicable law. Jury instructions will not be reversed unless the instructions as a whole are erroneous, relate to a central subject in the case, and affect a substantial right of the accused.

Generally, attacking an expired sentence is a moot argument. When the criminal judgment does not include a term of probation, the expired sentence does not continue to have collateral consequences. When a term of imprisonment has been completed, any additional credit for time served is academic and irrelevant. The Court does not render advisory opinions, and an appeal will be dismissed if the issues become moot or academic, leaving no actual controversy to be determined.

A district court judgment denying a petition for nonparent custody or visitation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A party does not have a right to appeal if there is no final judgment or proper N.D.R.Civ.P. 54(b) certification.

When claims are fully adjudicated on the merits following a bench trial, the district court correctly enters a judgment of dismissal with prejudice. The judgment of dismissal with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

A district court's order denying a petition for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A criminal judgment entered after a jury trial is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A divorce judgment entered after a bench trial is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A juvenile court judgment finding the children are in need of protection is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

When a divorce is granted, the district court shall make an equitable distribution of the property and debts of the parties. All property held by the parties, whether it is held individually or jointly, is deemed marital property, and the court must determine the property's total value before making an equitable distribution. This includes separate property, or property exempt from being included as marital property, that has been commingled or placed into a joint bank account. If the parties do not mutually agree upon a valuation date, the valuation date for marital property and debt is sixty days before the initially scheduled trial date. If there is a substantial change in value of an asset or debt between the date of valuation and the date of trial, the district court may adjust the valuation of that asset or debt as necessary to effect an equitable distribution and shall make specific findings that another date of valuation is fair and equitable. A property distribution does not need to be equal to be equitable, but the district court must explain a substantial disparity. The property's origin may be considered when equitably dividing the estate, along with economic fault and dissipation of assets. A premarital agreement is a contract that is interpreted in a manner that gives effect to the parties' mutual intent at the time of contracting, usually in relation to the disposition of property upon divorce. We do not reweigh conflicts in the evidence, and we give due regard to the district court's opportunity to judge the credibility of the witnesses.

According to N.D.C.C. § 14-09-08.4(4) and N.D. Admin. Code. § 75-0204.1-07(7), party seeking modification of a child support order that was entered at least one year before the filing of the motion has the burden of proving that the existing level of support does not conform to the guidelines and that the change in employment was not made for the purpose of reducing the obligor's child support obligation. A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines. Net income is the total gross annual income less certain amounts available for deduction under N.D. Admin. Code § 75-02-04.1-01(6). Gross income is defined as "income from any source, in any form," except for some specific exclusions under N.D. Admin. Code § 75-02-04.1-01(4)(a).

A district court may grant a disorderly conduct restraining order when a petitioner shows there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. Disorderly conduct means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. A district court's findings of fact must be sufficient to enable an appellate court to understand the factual determinations made by the district court and the basis for its conclusions of law. The district court's findings are adequate if the appellate court can discern from them the factual basis for the district court's decision. There must be logical limits on the time and distance factors when a restraining order is at issue.

A district court's order granting a motion for a witness to appear by electronic means is summarily affirmed under N.D.R.App.P. 35.1(a)(7). A district court's order finding an individual qualifies as a sexually dangerous individual must contain findings that the individual has a serious difficulty controlling their behavior.

A district court's order granting a continuance to allow a witness to appear by reliable electronic means was affirmed.

An application for post-conviction relief must be filed within two years of the date the conviction becomes final. An application for postconviction relief may be summarily dismissed if commenced outside the two-year period for filing and does not meet an exception under N.D.C.C. § 29-32.1-01(3).

An order of the North Dakota Industrial Commission is vacated for lack of jurisdiction. Adjudicatory jurisdiction does not necessarily inhere in an agency's regulatory jurisdiction. A public administrative body has such adjudicatory jurisdiction as is conferred on it by statute. The jurisdiction of an administrative agency is dependent upon the terms of the statute. Section 38-08-04, N.D.C.C., grants the Commission broad regulatory jurisdiction over disposal of saltwater, but it does not expressly or by necessary implication grant jurisdiction to adjudicate disputes arising under contracts relating to saltwater disposal. The "costs" of "operation of a well on a spacing unit" under N.D.C.C. § 38-08-08(2) include production costs but exclude post-production costs. The Commission's jurisdiction to determine proper costs under § 38-08-08(2) thus extends only to production costs and excludes post-production costs. Salt-water gathering is a post-production cost outside of the Commission's jurisdiction under N.D.C.C. § 38-08-08(2), and the Commission thus lacks jurisdiction under N.D.C.C. § 38-08-08(2) to adjudicate disputes between private parties over saltwater gathering costs.

An appeal from a juvenile court order terminating parental rights is affirmed. A factfinder may rely in its findings on an affidavit if the affidavit is properly offered and received into the evidentiary record. Termination of parental rights proceedings under N.D.C.C. ch. 27-20.3 are governed by the North Dakota Rules of Juvenile Procedure and, to the extent they are not inconsistent with the Rules of Juvenile Procedure, the North Dakota Rules of Civil Procedure. N.D.R.Juv.P. 16 applies to motions to vacate in termination of parental rights proceedings under N.D.C.C. ch. 27-20.3. Rule 16, N.D.R.Juv.P., provides for both mandatory and discretionary modification of orders. A court's exercise of its discretion under N.D.R.Juv.P. 16(b) is reviewed for an abuse of discretion. A court's discretion to modify orders under N.D.R.Juv.P. 16(b) is narrow when the order at issue is an order terminating parental rights. Under N.D.R.Juv.P. 16(b)(2), a court may only vacate an order terminating parental rights on motion of the parent if the child is not placed for adoption and the person having custody of the child consents in writing to the vacation of the decree. When a parent fails to appear at a proceeding under N.D.C.C. ch. 27-20.3, a juvenile court does not violate the parent's constitutional due process rights if it exercises its discretion to proceed under N.D.R.Juv.P. 10.

A district court order denying an amended application for postconviction relief is affirmed. An application for postconviction relief based on newly discovered evidence under N.D.C.C. § 29-32.1-01(1)(e) is reviewed as a motion for a new trial based on newly discovered evidence under N.D.R.Crim.P. 33. Section § 29-32.1-01 ("Remedy - To whom available - Conditions) limits the availability of postconviction relief to those grounds listed under subsection 1. An applicant for postconviction relief under N.D.C.C. ch. 29-32.1 must base his application on the grounds provided under N.D.C.C. § 29-32.1-01(1). Res judicata bars relitigation of the same claim or claims that were fully and finally determined in a previous proceeding.

A district court must perform an adequate analysis for an appellate court to determine the basis for its decision. Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which we review de novo.

A party can invite error during voir dire. It is the responsibility of the parties, not the district court, to object to evidence a party believes is inadmissible. A party may intentionally not object to potentially inadmissible evidence for numerous strategic reasons. The court ruling on the admissibility of evidence when not invited to by a party can disrupt a party's trial presentation and sabotage a party's trial strategy. Attorneys have an obligation to ensure that the arguments they present are factually and legally supported. Whether to substitute appointed counsel is committed to the sound discretion of the district court.

Under a usual oil and gas lease, the lessee, in developing the leased premises, is entitled to use of the land reasonably necessary in producing the oil. Even though the surface rights of the lessee may arise by implication, it is important to note that lessee's rights are primarily governed by the specific grant of rights in the lease. A district court has broad discretion in admitting or excluding evidence at trial, which will not be overturned on appeal absent an abuse of discretion. An appellate court's conclusion a trial court did not abuse its discretion by admitting certain evidence in one case does not mean another trial court abused its discretion by not admitting similar evidence in a different case. The district court has discretion to determine an appropriate sanction for a party's failure to supplement interrogatories and may exclude expert testimony that is beyond the scope of a party's responses to interrogatories. The district court is not required to give instructions in the specific language requested by a party if the instructions given fairly and adequately inform the jury of the law.

Under N.D.C.C. § 65-04-26.1, a president of a corporation is not personally liable for penalties imposed due to a failure to file payroll reports. North Dakota Century Code § 65-04-26.1(3) requires Workforce Safety and Insurance to make an administrative determination regarding personal liability. A decision regarding personal liability under N.D.C.C. § 65-04-26.1 applies prospectively thus establishing personal liability for future sums owed by the corporation.

Under the speedy trial statute, trials must begin within 90 days of invoking this right, unless the court finds "good cause" for delay. Courts consider four factors when determining good cause: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted the right, and (4) prejudice to the defendant. Even if a district court doesn't explicitly discuss these factors, we will uphold the court's decision if applying the factors would reach the same result. It is unnecessary to seek judicial notice of matters outside the record to rebut allegations contrary to the existing record.

We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. Our primary goal when interpreting statutes is to determine the Legislature's intended meaning. If, after applying our statutory and doctrinal canons, the plain or ordinary language suggests two plausible and rational meanings, then the statute is ambiguous. When a statute is ambiguous, we may consider extrinsic aids, including legislative history, along with the language of the statute, to understand the Legislature's intended meaning. Section 12.1-32-15(2), N.D.C.C., allows the court to deviate from the registration for "crimes against children" if the court first finds the individual has not previously been convicted as a sexual offender or for a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense, unless the offense is described in section 12.1-29-02, or the offense is described in section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim. The phrase "and the person is not the parent of the victim" applies to section 12.1-18-01 and 12.1-18-02, but not section 12.1-29-02.

A district court misinterpreted a contract for deed by allowing a party to proceed with a cancellation action without first providing the other party notice of the default and time to cure the default as required by the contract. A remedy is the appropriate legal form of relief by which that remediable right ay be enforced. It is the form of relief by which the right is enforced and is not part of the cause of action. Cancellation of the contract for deed is one remedy, which may be achieved by alternative methods: 1) a statutory cancellation under N.D.C.C. ch. 32-18; or 2) a court action. Cancellation of a contract for deed by action is an action in equity, and the court must base its decision on equitable principles. In the absence of express terms specifying notice and redemption, an action for cancellation has a presumption that notice and redemption are appropriate and require specific findings weighing the equity of a notice and redemption period.

A district court erred in finding Fargo Municipal Code § 25-1509.2 to be unconstitutionally vague.

Issues not raised in an application for postconviction relief cannot be raised for the first time on appeal. "Fitness to proceed" and "lack of criminal responsibility" are separate and distinct concepts. The process for an examination or evaluation for fitness to proceed and lack of criminal responsibility differ. Rule 52(a), N.D.R.Civ.P., requires, "In all actions tried upon the facts without a jury . . . the [district] court shall find the facts specially and state separately its conclusions of law." A petitioner in a postconviction relief proceeding carries a heavy burden to establish a reasonable probability that, but for trial counsel's error, the result of the proceeding would have been different. Generally, a petitioner must provide more than conclusory allegations to meet that burden.

A district court shall correct an illegal sentence at any time with notice. A district court must provide notice to all parties before amending a sentence under N.D.R.Crim.P. 35(a)(2).

Issues not briefed are deemed abandoned. A district court's decision on a motion under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. A district court's decision on a motion for judgment as a matter of law is fully reviewable on appeal. The doctrine of an implied covenant of good faith and fair dealing is limited to the insured-insurer relationship. A breach of contract, even if intentional, malicious, or in bad faith, does not give rise to a breach of contract claim or turn a breach of contract claim into a tort claim absent proof of independent tortious conduct.

An aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court by filing written notice of appeal within thirty days after entry of the order, judgment, or decree, or within any further time the supreme court grants, after entry of the order, judgment, or decree. Interlocutory orders are appealable if it is deemed to be an appeal from a subsequently entered consistent final order or judgment. The party requesting review of the findings and order of a judicial referee by a district court judge must give notice to all other parties. If a party is represented by counsel, all documents filed with the court must be signed by the attorney of record. Issues not briefed on appeal are waived.

An easement implied from pre-existing use requires unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement. An easement by necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers. A motion for judgment on the pleadings should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion for summary judgment is not an opportunity to conduct a mini-trial, and summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment. A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence.

A petition for supervisory writ is granted. In ruling on a motion to compel, the district court must state the reasons for its conclusions with sufficient specificity to afford a clear understanding of its decision and allow for meaningful review. The withholding party's burden to prove an asserted privilege or protection applies presumes a burden to submit the disputed documents for in-camera review in a form that is readily intelligible to the district court. If the district court is unable to discern the content of a document, it may require the withholding party to assist the court, including by providing a readable copy. Section 50-25.1-11, N.D.C.C., designates as confidential a "report made under this chapter, as well as any other information obtained." Although "report made" and "information obtained" lack a subject, in context it is clear that the statute refers to reports made to the Department of Health and Human Services. Even if information in a document is later included in a report subject to N.D.C.C. ch. 50-25.1, it is the report and the other information obtained by the Department in association with that report that is confidential. Documents do not become confidential or privileged by attaching them to a confidential report or privileged email. The lawyer-client privilege protects confidential communications themselves and not necessarily the facts underlying the communications. A party asserting work-product privilege may not rely on "in anticipation of litigation" as magic words that automatically protect a disputed document from disclosure. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be real and imminent.

If a motion for judgment of acquittal was made at trial on different grounds from the claim asserted on appeal, the issue was not preserved for review. Section 14-09-22.1, N.D.C.C., does not limit the offense of child neglect to passive conduct. A "willful" failure to provide proper parental care may encompass the deliberate choice to act or to refrain from acting. It is the responsibility of the party, not the district court, to object to evidence the party believes is inadmissible.

Judgeship retained at Devils Lake

An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Deeds are interpreted in the same manner as contracts. In construing a deed, the primary purpose is to ascertain and effectuate the grantor's intent. A grantor's intent must be ascertained from the writing alone, if possible. When a deed is unambiguous, the parties' intent is determined from the instrument itself. The "safe harbor" provision in N.D.C.C. § 47-16-39.1(1) applies when there is a dispute of title that would affect distribution of royalty payments. Determining who is a prevailing party for an award of disbursements is a question of law, subject to de novo review, while the question of the amount allowed for disbursements and costs is one of fact, subject to an abuse of discretion standard.

There is a difference between a claim asserting a law is facially unconstitutional and a claim asserting an unconstitutional facial taking occurred. An ordinary facial challenge requires a plaintiff to prove the legislature exceeded a constitutional limitation when it enacted a law, and consequently the law on its face violates the constitution. A facial taking claim, on the other hand, is a specific type of facial challenge that asserts the mere enactment of a statute constitutes a taking. Whether a claim is a facial or as-applied challenge is not of great import when deciding whether it has accrued for purposes of a statute of limitation. The accrual date of a facial or as- applied challenge is identical to the accrual date of other substantive claims—the date upon which the plaintiff's injury occurred and the cause of action became complete. A case alleging facial unconstitutionality is ripe not simply when the law is passed but, just like an asapplied challenge, when the government acts pursuant to that law and adversely affects the plaintiff's rights. Regulatory takings are different than physical takings. An important distinction between physical and regulatory takings claims is the accrual date. In a regulatory taking, it is passage of the ordinance that injures a property's value or usefulness. But a physical taking causes injury when the property itself is taken.

The Court exercises its authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists. A party's notice of withdrawal of a motion after an order ruling on the merits of the motion has no effect on the duly issued order. Unless an exception applies, when a defendant is charged with a misdemeanor or infraction, and the injured party receives satisfaction for the injury, the court may terminate the criminal proceedings. Compromise between a defendant and injured party is one way in which a prosecution may be terminated; voluntary dismissal by the prosecuting attorney under N.D.R.Crim.P. 48(a) is another way. While the court has discretion in both instances, the compromise statutes do not prevent the State from moving for dismissal under N.D.R.Crim.P. 48(a). Under N.D.R.Crim.P. 48(a), the prosecuting attorney may not dismiss an indictment, information or complaint except on motion and with the court's approval. The prosecutor should be denied a dismissal, if the court is satisfied that the prosecutor is acting in bad faith, contrary to public interest, or intentionally harassing the defendant. The public interest exception does not allow the court to deny dismissal because it has the potential to undermine some broader societal concern. The court abuses its discretion by denying the State's unopposed motion to dismiss when the State acts in good faith and there has been no indication it has abdicated its prosecutorial duties.

Transfer to incapacity to practice law status.

A criminal judgment for preventing arrest or discharge of other duties, driving while license is suspended, and failure to transfer title is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

An order finding children in need of protection and finding social services engaged in active efforts to place the children in an Indian home as required by the Indian Child Welfare Act is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Under the Strickland test, an applicant claiming ineffective assistance of counsel must prove two elements: (1) that their counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Courts need not analyze both elements of the Strickland test and should resolve the case by addressing a single prong when possible. Under N.D.C.C. § 29-32.1-01(1)(e), postconviction relief is available when evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice. Applications based on newly discovered evidence are reviewed as a motion for a new trial based on newly discovered evidence under N.D.R.Crim.P. 33. To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show: (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 the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal. A motion for new trial based on newly discovered evidence rests within the discretion of the trial court, and we will not reverse the court's denial of the motion unless the court has abused its discretion.

An appeal from a judgment of conviction in a criminal case was untimely where it was not filed within 30 days of the judgment of conviction and no motion to extend the time to file the notice of appeal was filed. The appeal from an order denying a N.D.R.Crim.P. 29 motion was not appealable in the absence of a timely appeal from the judgment of conviction. The appeal is dismissed in accord with State v. Jenkins, 339 N.W.2d 567 (N.D. 1983).

In a criminal case, a defendant's notice of appeal must be filed with the clerk of the supreme court within 30 days after the entry of the judgment or order being appealed. The timely filing of a notice of appeal is mandatory and jurisdictional and cannot be waived by the appellate court.

A district court order denying a petition for a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

The State is an aggrieved party under N.D.C.C. § 27-20.2-26 and may appeal a juvenile court's ruling exempting a juvenile adjudicated delinquent as a sexual offender from registration as a sexual offender. This Court reviews a juvenile court's interpretation of a statute de novo. When interpreting a statute, the primary goal is to determine the intent of the statute by looking to the statute's language as a whole and giving meaning and effect to every word, phrase, and sentence. Section 12.1-32-15(2), N.D.C.C., does not allow the court to deviate from the sexual offender registration requirement for juveniles adjudicated delinquent under N.D.C.C. ch. 12.1-27.2. Section 29-28-35, N.D.C.C., does not apply to appeals of juvenile cases because the Juvenile Court Act controls procedure in juvenile cases.

A criminal judgment entered after a jury found the defendant guilty of child neglect is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

An order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

An appeal from an order finding the appellant in contempt of court in a divorce and parental responsibility action is dismissed as untimely. Another contempt finding and the first amended judgment appealed in the same matter are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

A district court may enter a protection order when there has been a showing of actual or imminent domestic violence. A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. Domestic violence protection orders are civil in nature and governed by N.D.C.C. ch. 14-07.1. Criminal justification defenses under N.D.C.C. § 12.1-05-06 do not apply to civil domestic violence protection order proceedings.

In criminal cases, errors not raised in the district court may be either forfeited errors or waived errors. Forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right. Although this Court may review forfeited errors for obvious error, the obvious error analysis under N.D.R.Crim.P. 52(b) does not apply to waived errors. Unchallenged jury instructions become the law of the case for purposes of assessing a claim about the sufficiency of the evidence.

The Confrontation Clause provides two protections to criminal defendants: the right to physically face someone who testifies against them, and the right to cross-examine. Although the right to confront witnesses is of a constitutional magnitude, it is not absolute and, in appropriate cases, may bow to accommodate other legitimate interests in the criminal trial process. North Dakota Century Code § 31-04-04.2 permits remote electronic testimony by children if testifying in front of a criminal defendant would traumatize a child in a manner impacting the child's ability to communicate. A district court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the court's findings, and the decision is not contrary to the manifest weight of the evidence.

An order denying discharge from civil commitment as a sexually dangerous individual is reversed and remanded for further findings. A district court's order finding an individual remains a sexually dangerous individual must contain sufficient and specific factual findings to show the individual has serious difficulty controlling his behavior.

An order denying a postconviction relief application is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court must credit a noncustodial parent for voluntary child support payments made during the pendency of an action when calculating past-due support obligations. When a court orders child support with a retroactive effective date, it must offset any past-due support owed by payments the noncustodial parent made to the custodial parent for the children's benefit during the relevant period.

In probation revocation proceedings, a district court need not make factual findings to support its decision to revoke probation instead of choosing alternative sanctions. Appellate review of sentencing decisions is limited to determining whether the sentence is within the statutory range and whether the court considered impermissible factors. A party may not challenge an order or judgment on appeal without designating it in a notice of appeal.

Valid service of process is necessary to assert personal jurisdiction over a defendant. Once a prima facie showing of valid service has been presented, the burden shifts to the defendant to present facts and documentation to establish service of process was insufficient. Eviction actions are not joinable with other actions, and counterclaims and defenses may not be interposed except as a setoff to a demand made for damages, rents, or profits. A contract for deed may be canceled by statutory cancellation. By following the statutes' strict guidelines, a vendor cancels the contract for deed by operation of law. Upon cancellation, the vendee's interest in the property terminates, and the vendee is required to return possession of the property to the vendor. If the vendee fails to return possession of the property, the vendee is in wrongful possession of the property, and an eviction is proper.

A district court judgment granting summary judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

A district court's judgment of divorce, order denying reconsideration, and order awarding attorney's fees is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4), and (6).

A district court must have sufficient factual findings to show a sexually dangerous individual continues to have an inability to control his behavior. Past conduct is relevant and may be considered with present conduct to determine if an individual continues to have an inability to control his behavior. Failure to attend treatment might demonstrate inability to control behavior just as violation of other institutional rules.

A district court criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Certified questions from our state district courts have a more stringent standard than foreign courts, requiring the question to be determinative, because the parties have a right to appeal. The district court's certified question of law is not answered because the question is not dispositive of the issues before that court and our response would be purely advisory

Obvious error analysis requires consideration whether the district court clearly deviated from applicable current law. An alleged error that is not plain will not be analyzed further in accordance with judicial restraint and constitutional avoidance.

A disorderly conduct restraining order is affirmed. An appeal is not moot if a district court order has collateral consequences for the appealing party. Citations to non-existent case law may preclude review of issues on appeal. It is the appellant's responsibility to obtain a transcript and they must bear any consequences for failing to provide a transcript on appeal.

A district court order dismissing an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

A district court divorce judgment awarding equal residential responsibility and distributing the marital estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A criminal defendant failed to show his substantial rights were prejudiced by the potential ambiguity of pleading guilty to both a cognizable offense and a non-cognizable offense where there was a sufficient factual basis to support the guilty plea to the cognizable offense. The requirements of N.D.R.Crim.P. 11(c)(3)(B) did not apply where the criminal defendant entered an open plea rather than pleading guilty under a plea agreement in which the parties presented a joint recommendation on a proposed sentence.

Trial counsel did not render ineffective assistance of counsel when his client chose to enter an open plea rather than accept the State's plea offer where counsel provided his client the options on how to proceed, explained the strengths and weaknesses of the case, and left the final decision on how to proceed to his client.

A post-trial motion invoking both N.D.R.Civ.P. 59 and N.D.R.Civ.P. 60(b) extends the time to file an appeal until notice of entry of the order disposing of the motion when the motion is brought within the time limits set forth in N.D.R.Civ.P. 59(c)(2) and N.D.R.App.P. 4(a)(3). The 60-day period for filing an appeal under N.D.R.App.P. 4(a)(1) starts to run in the absence of a notice of entry of the judgment or order only when the record clearly shows the appealing party had actual knowledge of the judgment or order, as evidenced by some affirmative action taken by the appealing party that shows actual knowledge. The email notice the clerk of district court provides the parties pursuant to N.D.R.Ct. 3.5(e)(5) does not equate to actual notice that will start the 60-day period for filing an appeal in the absence of a notice of entry of the judgment or order. The judgment of the district court in favor of the appellee is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

The juvenile court's orders terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A probationer's right to counsel does not arise from the Sixth Amendment but rather from North Dakota Rule of Criminal Procedure 32(f)(3)(A)(iii). Because of the statutory origin of a probationer's right to counsel at a revocation hearing, the full panoply of rights due a defendant in a criminal proceeding does not apply. On review of a district court's finding that a probationer voluntarily, knowingly, and intelligently waived the right to counsel, we apply a clearly erroneous standard.

A party bears the burden to correctly label its motion as to inform the court of the relief sought. The district court did not err when it treated appellant's motion as a request for relief under N.D.R.Crim.P. 35(a) based on its label. An as-applied challenge to probation conditions is not ripe for review when the individual subject to the probation conditions is still incarcerated. This Court declines to address a facial challenge to the constitutionality of a statute without the benefit of adversarial briefing.

A professional negligence action against a physician, nurse, or hospital generally requires an expert affidavit. Generally, decisions to provide medication, refuse to provide medication, or discharge a patient are medical decisions requiring the expertise of medical professionals. In an "obvious occurrence" case, expert testimony is unnecessary if a layperson can find negligence without the benefit of an expert opinion. Determining whether to discharge a patient or provide pain medication requires medical expertise beyond the common understanding of a layperson. The tort of intentional infliction of emotional distress requires (1) extreme and outrageous conduct that is (2) intentional or reckless and that causes (3) severe emotional distress. The district court must first determine if, as a matter of law, the defendant's conduct is sufficiently extreme and outrageous to permit recovery. This standard is strenuously high and requires conduct beyond all possible bounds of decency. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

A victim's testimony about misconduct occurring over several years can be sufficient to support a conviction. An improper communication to a jury in deliberations must actually prejudice the defendant to warrant a reversal of a conviction.

A jury's question or request to view evidence during deliberations shall take place in open court, unless the defendant agrees otherwise. For a closure of the courtroom to comply with the constitution, the district court must make correct and adequate findings on the closure. A violation of the constitutional right to a public trial can seriously affect the fairness, integrity, or public reputation of judicial proceedings, warranting reversal.

Procedural due process does not require the district court to ensure incarcerated parties to civil litigation are present at hearings. A hearing for a domestic violence protection order does not implicate confrontation clause rights protected by the Sixth Amendment.

Orders revoking probation and resentencing defendant for aggravated assault and violations of a domestic violence protection order are affirmed in part, reversed in part, and remanded. In probation revocation proceedings, a district court need not make factual findings explaining its decision to revoke probation and sentence incarceration instead of alternative sanctions. On appeal, a party may not challenge an order or judgment not designated in the notice of appeal. A party may not collaterally attack a final decision, that was not appealed, in subsequent proceedings.

An attorney's representation of a criminal defendant fell below an objective standard of reasonableness when the attorney failed to exclude certain evidence under N.D.R.Ev. 404(b) prior to trial, failed to object to the evidence at trial, failed to request a limiting or curative instruction after the evidence was introduced, and failed to develop an obvious error argument regarding the evidence on direct appeal. The district court erred in concluding a criminal defendant was prejudiced by counsel's representation without first assessing counsel's errors within the context of the remaining evidence properly presented and the overall conduct of the trial to determine whether there was a reasonable probability that the outcome of the proceeding would have been different. The case is remanded to supplement the record with additional evidence from the original record, if possible, and to permit the district court to address all of the grounds for relief raised by the applicant in his postconviction proceeding.

The Eighth Amendment to the United States Constitution and Article I, § 11 of the North Dakota Constitution respectively prohibit infliction of "cruel and unusual punishments" and "cruel or unusual punishments." A punishment in a non-capital case that is grossly disproportionate to the offense is cruel and unusual. The disproportionality principle is narrow. It forbids only extreme sentences. Generally, unless there is a statute to the contrary, it is within the trial court's sound discretion whether a sentence should run concurrently with or consecutively to another sentence. The Court will review a claim that a sentence is illegal even when it was not raised below, but a significant distinction exists between claims of error regarding a sentence imposed in a procedurally or factually flawed manner, which can be waived, from an unauthorized sentence that could not lawfully be imposed under any circumstances in the particular case.

District courts have discretion to issue consecutive terms of imprisonment for felonies, but N.D.C.C. § 12.1-32-11 limits the court's authority for misdemeanors. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, unless the defendant is being sentenced for two or more class A misdemeanors and each was committed as part of a different course of conduct or each involved a substantially different criminal objective. Crimes are not necessarily part of the same course of conduct simply because they were committed close in time or by similar means.

Judgeship retained at Fargo

An existing parenting plan that creates conflict between a parent and the children can be a material change of circumstances for modification of the plan. A district court has broad discretion in determining which party bears the costs for an examination under N.D.R.Civ.P. 35 and for therapy. A parenting plan that gives a third party the power to unilaterally determine progress and set requirements without criteria from the district court is an improper delegation of the court's authority. The decision whether to hold a person in contempt is addressed to a district court's discretion, and will be reversed only upon a showing of an abuse of discretion.

A criminal judgment entered after a bench trial is affirmed because sufficient evidence supports the convictions. Unlike in a jury trial, a defendant does not need to move for judgment of acquittal under N.D.R.Crim.P. 29 at a bench trial to preserve the issue of sufficiency-of-the-evidence for appeal. The process of "making an arrest" or "effecting an arrest" contains many steps, which, if uninterrupted, result in an arrest. "Preventing arrest" is the charged crime for preventing an officer from "effecting an arrest" at any point during the arrest process. During the process of "making an arrest" law enforcement is required to inform the individual of the cause of arrest unless the officer does not have an opportunity to do so. See N.D.C.C. § 29-06-17.

The domestic violence factor in N.D.C.C. § 14-09-06.2(1)(j) requires the district court find credible evidence that domestic violence occurred. The court next must find an instance of (1) serious bodily injury, or (2) use of a dangerous weapon, or (3) a pattern of domestic violence within a reasonable time proximate to the proceeding. We do not reweigh the findings of a district court under the clearly erroneous standard.

An order denying Altepeter's motion to amend parenting time provisions in a divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (8).

Issues not raised or considered in the district court, including claims of constitutionally protected activity, cannot be raised for the first time on appeal, unless the issue rises to the level of obvious error. It is the defendant's burden to show an obvious error that affects a substantial right, and the discretion to notice obvious error need not be exercised when obvious error is not raised on appeal. Tumultuous behavior may include conduct that is loud, noisy, or creates a disorderly commotion.

District courts may properly consider a parent's alcohol abuse and act of driving under the influence when determining whether a material change of circumstances exists. However, our cases do not show an isolated incident of a parent driving under the influence automatically mandates a finding of a material change of circumstances. A party may not challenge prior unappealed parenting time requirements in an appeal of a subsequent order modifying parenting time. Under N.D.R.Ct. 3.2(a)(2), a district court errs in not allowing a party the opportunity to file a reply brief; however, a court may remedy the premature issuance of an order by subsequently reviewing a timely submitted reply brief to determine whether it impacts the court's decision. A district court does not abuse its discretion by denying a motion under N.D.R.Civ.P. 60(b) when the movant does not identify or argue a specific ground for relief under N.D.R.Civ.P. 60(b).

A sufficient majority was not reached to declare unconstitutional N.D.C.C. ch. 12.1-19.1, which criminalizes abortion with exceptions. The effect of the separate opinions is that a district court judgment declaring N.D.C.C. ch. 12.1-19.1 unconstitutional and void is reversed.

A district court order revoking probation and resentencing the defendant is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).

When interpreting a statute, the primary goal is to determine the legislature's intent by looking to the statute's plain language and attempting to give each word, phrase, and sentence its ordinary meaning. Statutes are construed as a whole and harmonized to give meaning to related provisions. The statutes' context and the purposes for which they are enacted are considered, in addition to the actual language, its connection with other clauses, and the words or expressions which obviously are by design omitted. Chapter 39-20, N.D.C.C., addresses chemical tests for intoxication and implied consent for individuals who operate motor vehicles. Section 39-20-01, providing for implied consent for chemical tests, must be read in conjunction with section 39-20-01.1, addressing chemical tests of drivers in serious bodily injury or fatal crashes. Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. Consent is one exception to the warrant requirement, provided the consent is voluntary. A district court must determine whether the consent was voluntary under the totality of the circumstances.

The juvenile court's order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Under N.D.R.Crim.P. 24, a jury is not empaneled until all jurors, including any alternates, have been qualified, accepted, and sworn. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. A court's replacement of a juror with an alternate juror does not generally implicate the Double Jeopardy Clause. The district court does not abuse its discretion by replacing an empaneled juror with an alternate juror due to an association between a juror and a relative of the defendant.

A plaintiff seeking postconviction relief is required to show but for counsel's errors, there is a reasonable probability the result at trial would have been different. Inadequate briefing or support of an issue on appeal will prevent review.

A mortgagor lacks standing to challenge a mortgage assignment between the assignor and assignee as a non-party to that transaction. A district court abuses its discretion by denying a request for an audio recording without explanation. Court transcripts carry a rebuttable presumption of accuracy. A judge advising self-represented litigants to seek counsel does not establish judicial bias.

An order granting involuntary treatment with prescribed medication is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Section 61-16.1-51, N.D.C.C., does not authorize water resource boards to assess their costs against governing bodies not acting as a landowner.

A jury verdict's criminal conviction for child abuse of a victim under six years of age is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Under N.D.C.C. § 62.1-01-01(3), a firearm means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive. The State can rely on the surrounding facts and circumstances, including testimony from lay witnesses, to prove a weapon is a "dangerous weapon" or "firearm" as defined in N.D.C.C. § 62.1-01-01(3).

A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

The district court must state its findings of fact with sufficient specificity to enable a reviewing court to understand the factual basis for its decisions. A court's findings of fact are sufficient if they afford a clear understanding of the court's decision and assist the appellate court in conducting its review. Under the clearly erroneous standard, the Court does not reweigh evidence or reassess witness credibility. The district court did not clearly err in finding a parent did not change employment to reduce his child support obligation, but rather to parent his children.

An order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A defendant can waive his right to counsel either expressly, or through his conduct. A waiver of the right to counsel must be knowingly and intelligently made. This requires the defendant be advised of the dangers and difficulties of self-representation.

Probate law distinguishes between informal and formal proceedings and between unsupervised and supervised administration. An appeal of multiple orders in an unsupervised probate is dismissed without N.D.R.Civ.P. 54(b) certification or resolution of all claims by and against a party. This Court generally will not consider an appeal in a multi-claim or multi-party action that disposes of fewer than all claims against all of the parties unless the district court has first independently assessed the case and determined a certification under N.D.R.Civ.P. 54(b) is appropriate. Even in an unsupervised probate, the existence of unresolved claims by or against a party prevents immediate appellate review without N.D.R.Civ.P. 54(b) certification.

An order denying relief in a postconviction proceeding is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

North Dakota Century Code § 59-14-02(5) governs whether an agent acting under a power of attorney has authority to amend a trust. It permits amendments "only to the extent expressly authorized by the terms of the trust or the power, exercised in writing and delivered to the trustee." Under N.D.C.C. § 59-19-02(1)(b), the express authorization requirement applies "to all judicial proceedings concerning trusts which are commenced after July 31, 2007." The word "express" means clearly and unmistakably communicated; stated with directness and clarity. Express authority cannot be implied from general provisions.

Pursuant to N.D.R.Crim.P. 36, a district court has authority to correct a clerical error in a written order that inaccurately states the court's oral pronouncement of sentence when the correction does not make the sentence more onerous than the original sentence, but merely corrects the written order's failure to record accurately an earlier unambiguous oral pronouncement. The failure to appoint a criminal defendant counsel to respond to a Rule 36 motion to correct a clerical error in a probation revocation proceeding does not violate the defendant's constitutional right to counsel because the process of probation revocation is not a critical stage of a criminal prosecution.

An order denying a North Dakota Rule of Criminal Procedure 35(a) motion to correct an illegal sentence is summarily affirmed under North Dakota Rule of Appellate Procedure 35.1(a)(7).

The district court's order removing a condition from the defendant's criminal judgment that required money from his prison account to be applied to his child support obligations is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

An appeal from a disorderly conduct restraining order is summarily affirmed under N.D.R.App.P. 35.1(a)(8).

An order denying postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

An order denying relief in a postconviction proceeding is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

A district court has jurisdiction to modify a foreign custody determination, including visitation orders, when the child's home state is North Dakota and the child and parents no longer reside in the issuing jurisdiction. Appellate courts have the authority and duty to determine the applicability of relevant statutes to legal controversies, even when the parties do not identify those statutes or argue for their application. When a parent seeks to modify an existing nonparent visitation order, the court must apply the modification standards under the Uniform Nonparent Custody and Visitation Act. When modifying an order granting nonparent visitation, the court must determine whether the nonparent rebutted in the initial proceeding the presumption that the parent's decision regarding visitation is in the child's best interest. If the nonparent rebutted the presumption in the initial proceeding, the presumption remains rebutted.

This Court lacks jurisdiction to review untimely appeals. Inadequately briefed issues are waived.

The district court must state its findings of fact with sufficient specificity to enable a reviewing court to understand the factual basis for its decisions. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for the district court's decision merely because we might have reached a different result. A fit non-custodial parent is routinely awarded some form of extended summer visitation unless the court has reason to deny it. Appellate courts review the record and findings as a whole and if the controlling findings are supported by the evidence, they will be upheld on appeal notwithstanding immaterial misstatements in the lower court's decision. A party is not entitled to attorney's fees on appeal if the issue is inadequately briefed or the appeal is not frivolous

A district court order denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) & (4).

A district court did not abuse its discretion by requiring registration as a sex offender. Under N.D.C.C. § 12.1-32-15(2)(b), a court may deviate from the registration requirement if the court makes findings on the specified criteria. The court is not required to make the findings unless it first exercises its discretion to deviate from the registration requirement.

Rule 11(a)(2), N.D.R.Crim.P., addresses conditional guilty pleas and requires: (1) the defendant, any defendant's attorney and the prosecuting attorney consent in writing to the conditional plea; (2) the court accept the conditional plea and enter an order; and (3) the judgment specify the plea is conditional. Temporary remand is warranted for the district court's determination whether the plea was conditional and, if so, entry of an order and judgment consistent with the requirements of N.D.R.Crim.P. 11(a)(2).

District courts have wide judicial discretion in partition actions to do equity and to make a fair and just division of the property or proceeds between the parties, and great flexibility in fashioning appropriate relief for the parties. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The task of weighing the evidence and judging the credibility of witnesses belongs to the trier of fact, and this Court does not reweigh credibility or resolve conflicts in the evidence.

A judgment denying an application for postconviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A district court order denying a petition to return forfeited bail is affirmed.