CONMY FESTE LTD

What should I do if I have been hurt on someone else’s property?

A property owner is not responsible or liable for injuries simply because they occurred on his property. In order for an injured person to assert a claim it is necessary to show that the property owner failed to use reasonable care in maintaining the premises. For example, the owner of a building may forget to remove ice from a sidewalk or repair broken steps. Documenting the exact nature of the condition which caused an injury is critical in order to successfully bring a claim. Accordingly, photographs should be taken as soon as possible after the injury. Interviews of other individuals confirming the existence of the condition also should be obtained.

What happens if I have been injured by a defective product?

The old adage “let the buyer beware” is no longer the rule of law governing the manufacture and sale of products and machines. Sellers and manufactures of defective product or products whose labels or instructions fail to adequately warn of hazards associated with its use are responsible for injury caused by such products or lack of warnings. A claim can be asserted for fault or strict liability. Under the strict liability law, a consumer has a right to recover damage if he was injured by a defective and unreasonably dangerous product. Typically, these claims will be defended by claiming improper use, failure to follow warnings or instructions, and alterations or modification.

Claims involving defective products involve an intricate and specialized area of the law. These claims, therefore, require an experienced lawyer.

Do I have a right to be compensated?

Persons injured as a result of the fault of another are entitled full compensation for their injuries. Recoverable damages include medical expenses, loss of earnings and earning capacity, loss of employment or business opportunities, pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury and loss of society and companionship.

If an injury has caused death, the surviving spouse and dependent children may have a claim against the wrong doer for their loss including both economic and non-economic damages.

DIVORCE

I. How does the court determine the value of a closely held business?

In North Dakota all assets, including closely held businesses, professional practices and agricultural enterprises are marital assets subject to distribution. The first step is to determine the value of the enterprise. We typically hire an expert who will render his opinion regarding the value of the enterprise. In valuing the enterprise, typically three approaches are used: the income approach, the asset approach and the market approach.

The income approach values a business by giving primary consideration to the probable future income, or cash flow, stream likely to be generated by the business. It explicitly recognizes that a prudent investor will purchase only if the underlying assets of the business will generate an adequate future income, or cash flow, stream sufficient to compensate him/her for the risk and lack of liquidity commonly associated with investments in closely held businesses.

The asset approach values a business by determining the value of individual assets and the value of individual liabilities. The equity in the business is determined by subtracting the sum of the individual liability values from the sum of the individual asset values.

The market approach, which is sometimes called a sales comparison approach, determines the value of a business by utilizing information associated with the actual sales of guidelines businesses or businesses comparable to the subject business.

Fair Market Value is commonly defined as the price, in cash or equivalent, which a buyer could reasonably be expected to pay and a seller could reasonably be expected to accept, if the property was exposed for sale on the open market for a reasonable period of time, both buyer and seller being in possession of pertinent facts, and neither being under compulsion to act.

In some cases discounts are allowed for minority interests, as well as lack of marketability. The expert witness will give his opinion regarding the appropriate discount. The Judge ultimately determines if a discount applies and, if so, the amount of discount.

After the entity has been valued, it must be distributed. If one spouse retains the entity the other most be compensated in some manner so as to balance the assets and liabilities. If the entity is sold, the tax ramifications stemming from the transaction must be taken into consideration.

The expert who values the enterprise is in some situations jointly retained and the expert's fee shared equally. In other situations both parties retain an expert to value the entity. The court then determines which expert’s opinion is more credible and who is responsible for payment of the expert’s fees.

II. What is difference between legal custody and physical custody?

Legal Custody

There are two aspects to custody: legal custody and physical custody. Joint legal custody refers to which parent will be involved in making major decisions regarding the children. In Minnesota, there is a presumption that the parties will have joint legal custody. M.S.A. § 518.17. In North Dakota there is no such presumption, however, the concept of joint legal custody is common.

Divorce decrees commonly define joint legal custody as follows:

Joint Legal Custody. Each party shall have joint legal custody so as to allow each parent to continue to have a full and active role in making major decisions in the children's lives including but not limited to those decisions relating to medical care, religion and education.

a. The parents agree that major decisions concerning the health and welfare, education or upbringing of the minor children of the parties shall be made by both parents jointly after discussion and consultation with one another. The only exception to this provision shall be that of a life threatening emergency.

b. Either parent can obtain and have access to any records concerning any minor child of the parties to include those records kept by any and all state and federal agencies, any and all school, medical, dental, psychiatric records, religious, and/or insurance records maintained by any entity regarding the minor children.

c. Each party shall make every effort to notify the other party of any medical emergency or other serious medical problem that may occur while a child is in care of such party.

Physical Custody

The term physical custody refers to which parent will be responsible for the routine daily care and control of the child or children. Typically, one parent will generally have sole physical custody even if the parents have joint legal custody. Joint physical custody is possible in some situations. One factor which weighs against joint physical custody is that it often requires that the parties who are seeking a divorce get along well. It could be argued that the fact that the parties are getting divorced already answers the question how well they can get along so as to facilitate a joint physical custody arrangement. However, in unique situations where joint physical custody is appropriate the arrangement can be as varied as the imagination of the parties. One example of how this could be accomplished would be that the children would live with each parent three and one-half days each week. Another manner in which this can be accomplished is that the children would alternate weekends with each parent but would be with one parent Monday through Wednesday after school and other parent from Wednesday after school through Friday after school.

Another example of joint physical custody would be to alternate weeks during the calendar year. Another example would be to alternate months pursuant to which on the first day of each month the children would rotate between parents. Another alternative would be for the children to rotate every three months between the parents.

III. How will the court determine which parent will have custody?

When parents cannot agree on what is best for their children, the courts will decide custody by determining what is in the best interest of the children. Typically in a contested custody case, a custody investigator will be appointed by the court to carry out a study. The custody investigator is an independent person with no personal interest in the outcome of the custody determination. The custody investigator will prepare a written report regarding the children’s best interests, including conclusions and recommendations and the facts upon which they are based. In many cases the judge will defer to the recommendations of the custody investigator.

In North Dakota the factors to be considered in determining the best interests and welfare of the child are codified at Section 14-09-06.2 of the North Dakota Century Code. Section 14-09-06.2 provides as follows:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable.

A. The love, affection, and other emotional ties existing between the parents and child.

B. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

C. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

D. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

E. The permanence, as a family unit, of the existing or proposed custodial home.

F. The moral fitness of the parents.

G. The mental and physical health of the parents.

H. The home, school, and community record of the child.

I. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

J. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, this evidence creates a rebuttable presumption that a parent who has perpetrated domestic violence may not e awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require the parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision “domestic violence” means domestic violence as defined in section 14-07.1-01.

K. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, or assault, on other persons.

L. The making of false allegations not made in good faith, by one parent against the other of harm to a child as defined in section 50-25.1-02.

M. Any other factors considered by the court to be relevant to a particular child custody dispute.

The Minnesota statutory factors though not identical are similar. In Minnesota the factors to be considered in determining the best interests of the child are codified at section 518.17 of the Minnesota Statutes Annotated. Section 518.17, subd. 1 provides as follows:

(a) The best interests of the child means all relevant factors to be considered and evaluated by the court including:

(1) the wishes of the child’s parent or parents as to custody;

(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

(3) the child’s primary caretaker;

(4) the intimacy of the relationship between each parent and the child;

(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;

(6) the child’s adjustment to home, school, and community;

(7) the length of time the child has lived in a stable, satisfactory environment and desirability of maintaining continuity;

(8) the permanence, as a family unit, of the existing or proposed custodial home;

(9) the mental and physical health of all individuals involved; except that a disability as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;

(11) the child’s cultural background;

(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court may not use one factor to the exclusion of others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

(b) The court shall not consider conduct of a proposed custodian that does not affect the custodian’s relationship to the child.

IV. How are pension and retirement plans divided?

Pensions and retirement plans which have accrued during a parties’ marriage constitute marital properties subject to distribution. In North Dakota the fact that a portion of a parties’ pension or retirement plan accrued prior to the marriage is not dispositive regarding distribution of the asset. It is, however, a factor in distributing the asset. Commonly, that portion of the parties pension or retirement plan that accrued prior to the marriage will be awarded to the party who earned the benefit with the remainder of the asset divided equally.

The Retirement Equity Act of 1984 created a new category of qualified plan benefit recipients called Alternative Payees. Under the terms of a Qualified Domestic Relations Order (“QDRO”) the alternate payee receives all or a portion of the benefits payable to a participant under a qualified retirement plan. QDROs apply to all qualified retirement plans. A distribution from a qualified retirement plan to the alternate payee pursuant to a QDRO will create a taxable event such that the distribution will be included in the alternate payee’s gross income in the year of the distribution, unless the alternate payee rolls over the proceeds into a self directed retirement vehicle in North Dakota. Then any tax will be deferred until there is a withdrawal from the IRA. If the alternate payee does not roll over the funds received from the qualified plan into a tax deferred IRA, the entire portion will be taxed as ordinary income. There may also be a ten percent (10%) penalty for early withdrawal.

V. Will I have to pay or will I receive spousal support?

Spousal support is a money payment on a regular basis from one spouse to the other during or following a divorce. There are no formal guidelines regarding spousal support, as in child support. The payments may be temporary or permanent. In determining the amount and duration of spousal support the court in North Dakota will consider the following factors:

a. The ages of the parties;

b. The parties’ earning abilities;

c. The duration of the marriage and the conduct of the parties during the marriage;

d. The parties’ station in life;

e. The circumstances and necessities of each party;

f. The parties’ health and physical condition;

g. The parties’ financial circumstances as shown by the property they own; and

h. Any other factors the court may consider relevant.

In Minnesota spousal support is controlled by M.S.A. § 518.552. Section 518.552 provides as follows:

Subdivision 1. In a proceeding for dissolution of marriage or legal separation, or in a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse and which has since acquired jurisdiction, the court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance:

(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Subdivision 2. The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently , including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;

(c) the standard of living established during the marriage;

(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in the furtherance of the other party’s employment or business.

Spousal support is in included in gross income for income tax purposes for the party receiving the support and is deductible by the party paying the support.

VI. How is child support calculated when the parents have joint physical custody?

Section 75-02-04.1-08.2 of the North Dakota Child Support Guidelines provides as follows:

Equal physical custody - Determination of child support obligation. A child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal physical custody of their child or children. Equal physical custody means each parent has physical custody of the child, or if there are multiple children, all of the children, exactly fifty percent of the time. A child support obligation for each parent must be calculated under this chapter assuming the other parent is the custodial parent of the child or children subject to the equal physical custody order. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation. Each parent is an obligee to the extent of the other parent's calculated obligation. Each parent is an obligor to the extent of that parent's calculated obligation.

In Minnesota, when joint physical custody exists, child-support is calculated by applying the Hortis/Valento formula. See Nolte v. Mehras, 648 N.W.2d 727, 730 (Minn. Ct. App. 2002); see also Rogers v. Rogers, 622 N.W.2d 813, 819 (Minn. 2001); Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. Ct. App. 2001). The Minnesota Court of Appeals in Chaput v. Chaput, 1998 WL 281901, *3 (Minn. Ct. App. 1998) stated as follows:

To correctly apply the Hortis/Valento formula for child support in a joint custody arrangement where custody is shared equally (as here), each parent pays 50% of that parent's guideline amount. The court then applies an offset so that the net amount paid by the parent with the higher earnings is the difference between the reduced guideline amounts.