The State Bar Association of North Dakota Fall 2013 Gavel Magazine | Page 17

hold income, the taxpayer will be exempt
from the penalty. The implementation of
ACA won’t necessarily constitute grounds for
modifying the order. (Sandstad, 2013).
5. Fred buys Wilma a beautiful engagement ring for $megabucks. The parties
marry and have a child together. Five years
later, Wilma starts a divorce action. Fred
hires you and asks whether or not he can
get the engagement ring back. What do
you tell Fred?
a. Wilma must return the ring.
b. Wilma gets to keep the ring.
c. The ring must be counted as a marital
asset and counted in an equitable division
d. The child gets the ring.
ANSWER:  c. “Gifts” are marital, not
separate property. Gaulrapp v. Gaulrapp,
510 N.W.2d 620, 621 (ND 1994). In
dividing marital property, “the trial court
must consider all of the real and personal
property accumulated by the parties as
part of their marital estate, regardless of
the source....” Anderson v. Anderson, 368
N.W.2d 566, 568 (N.D. 1985).The origin
of the property owned by the parties can
be considered by the trial court. Winter v.
Winter, 338 N.W.2d 819, 822 (N.D. 1983).
The length of the marriage is relevant to the
distribution of gifts and inherited property,
and redistribution of gifted property may
often be equitable in long-term marriages. Behm v. Behm,427 N.W.2d 332, 336-37
(N.D. 1988)
6. Mary and Tom are getting divorce.
Mary is a state employee with a Teacher’s
Retirement Annuity. She refuses to give
Tom a copy of her retirement plan description. Does she have to provide it?
a. Yes Mary must provide it within 30
days of service of the Summons.
b. Yes but only after service of a subpoena
c. Yes, but only if Mary authorizes its
release.
d. Mary does not have to provide it.
ANSWER:  a. N.D.R.Ct 8.3 (a) provides
that within 30 days after service of the
complaint, the parties and their attorneys
must meet in person or by electronic means
to prepare a joint information statement;
“the parties must exchange information

The Gavel Fall 2013

and documentary evidence relating to the
existence and valuation of assets and liabilities. At a minimum, the parties must
be prepared to exchange current paystubs,
employment and income information, tax
returns, preliminary pension information,
and asset, debt and expense documentation.”
(emphasis added)
7. Bob and Mary are in the middle of an
ugly custody case. Bob is certain that Mary
is manipulating their daughter and trying
to turn her against him. He starts taping
his calls with their daughter and Mary
finds out. She calls the police. What will
happen to Bob?
a. He will be immediately arrested for
felony wiretapping and could face prison
time.
b. He will be given a misdemeanor ticket
for wiretapping and pay a small fine.
c. He faces sanctions by the Court in the
dissolution action.
d. Nothing.
ANSWER: d. Although
N.D.C.C.§12.1-15-02(1) provides that a
person is guilty of a class C felony if he or
she intentionally intercepts any wire or oral
communication by use of any electronic,
mechanical, or other device; subd. N.D.C.C.
§ 12.1-15-02(3) provides that it is a defense
to a prosecution under subsection 1 that:
“The actor was a party to the communication... and (2) such communication was not
intercepted for the purpose of committing a
crime or other unlawful harm.”
8. Rob and Michelle have never been married but have five-year-old twin daughters
who live with Michelle in Grand Forks,
North Dakota. Rob lives in the state of
Wisconsin and sees his daughters around
once a year. There is no court order regarding residential responsibility, parenting
time, or child support. Rob’s mother, Irene,
lives in East Grand Forks, Minnesota. Irene
is very close to her granddaughters and
until they reached school age provided
daycare for them while Michelle worked.
Michelle has recently become engaged to
Tom, a recovering addict who has spent
time in prison for drug dealing. Irene does
not like Tom and has been very outspoken
to Michelle about her feelings. As a result,

Michelle has decided that Irene can no
longer see her her granddaughters. Irene
comes to your office asking if she has a
right to obtain visitation with her granddaughters. What do you tell her?
a. Because Rob and Michelle have never
been married, Irene has no standing to
seek visitation.
b. Irene can petition for visitation and a
court has to grant her request if it finds
that the visitation is in the twins’ best
interests.
c. Irene can petition for visitation and
the district court may grant her request if
it finds that visitation with their grandmother is in the twins’ best interests
and that it will not interfere with their
relationship with their mother.
d. Irene cannot petition for visitation unless she first tries to mediate the dispute
with Michelle.
ANSWER: c. N.D.C.C. § 14-09-05.1(1)
provides that “[t]he grandparents and
great-grandparents of an unmarried minor
child may be granted reasonable visitation
rights to the child by the district court upon
a finding that visitation would be in the best
interests of the child and would not interfere
with the parent-child relationship.” Although
N.D.C.C. § 14-09-05.1(5) provides that “[t]
he district court may require mediation of
the matter,” the statute does not require the
grandparent to mediate before making the
request to the district court.
9. Dave and Denise divorce when their
sons, Dick and Harry, are 5 and 7 years
old. Dave is awarded primary residential responsibility and Denise is awarded
parenting time. Two years later Denise
marries Ralph and they have a daughter
together. When Dick and Harry are 14
and 16 years old, Dave dies after a five year
battle with cancer. Dave’s parents, Marge
and Bill, live a half mile from Dave’s house
and Dick and Harry have spent a lot of
time there. While Dave was ill, Marge and
Bill took care of Dick and Harry, cooking for them, doing their laundry, and
staying overnight with them when Dave
was hospitalized. Now that their father is
deceased, Dick and Harry want to live with
their paternal grandparents, Marge and
Bill, instead of with their mother. Marge

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