State ex rel. Klein v. Winegar

893 N.W.2d 741

STATE of North Dakota, County of Cass, ex rel. Jessica Lynn Klein, PlaintiffandJessica Lynn Klein, Plaintiff and Appellant

v.Micah Lehi WINEGAR, Defendant and Appellee

No. 20160281

Supreme Court of North Dakota.

Filed April 25, 2017

Earl B. Kavanaugh (argued), 423 C. Court Ave., Ste. 200, Des Moines, IA 50309, and Greg W. Liebl (appeared), 4627 44th Ave. S., Ste. 108, Fargo, ND 58104, for plaintiff and appellant.

Lilie A. Schoenack (argued), 230 Fourth St. N.W., Rm. 301, Valley City, ND 58072, and Alisha L. Ankers (appeared), 1712 Main Ave., Ste. 202, Fargo, ND 58103, for defendant and appellee.

VandeWalle, Chief Justice.

[¶ 1] Jessica Klein appealed the district court's temporary order for custody after it denied her motion to transfer jurisdiction to Iowa. Klein argues the district court lacked subject matter jurisdiction and North Dakota was an inconvenient forum to hear the case. We affirm, concluding North Dakota properly retained exclusive, continuing jurisdiction over the matter and did not abuse its discretion in finding North Dakota to be a convenient forum.

I.

[¶ 2] Jessica Klein and Micah Winegar have one child, Z.J.W., born in 2003. North Dakota determined paternity and, under a stipulation, awarded primary residential responsibility to Klein. For approximately the first ten years of his life, Z.J.W. lived with Klein in North Dakota. In 2013, the district court transferred primary residential responsibility of Z.J.W. to Winegar, who lived in Iowa. Z.J.W. has been living with Winegar in Iowa since the transfer of primary residential responsibility.

[¶ 3] In November 2015, Winegar filed a motion to modify the amended judgment. Klein answered by arguing North Dakota no longer has exclusive, continuous jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"). A judicial referee held a hearing on the matter and concluded that North Dakota retained exclusive, continuous jurisdiction under N.D.C.C. § 14–14.1–13 and was not an inconvenient forum under N.D.C.C. § 14–14.1–18. Klein requested the district court review the referee's findings. Upon a de novo review, the district court agreed with the referee and found North Dakota continued to have subject matter jurisdiction and was not an inconvenient forum. Following the district court's order, the parties entered into a stipulated temporary order which addressed residential responsibility.

[¶ 4] On appeal, Klein argues the district court lacked subject matter jurisdiction under the UCCJEA and the district court abused its discretion for not finding North Dakota is an inconvenient forum to hear the matter. Winegar argues Klein: (1) waived her right to appeal the issue of subject matter jurisdiction because she stipulated to North Dakota's jurisdiction, (2) appealed an interlocutory order, or conversely, (3) the district court's order finding North Dakota had jurisdiction was a final, appealable order from which Klein did not timely appeal.

II.

[¶ 5] In Schirado v. Foote , we have laid out the standard for review of challenges to subject matter jurisdiction under the UCCJEA:

It is well settled under North Dakota law that challenges to a district court's subject matter jurisdiction are reviewed de novo when the jurisdictional facts are not in dispute. Harshberger v. Harshberger , 2006 ND 245, ¶ 16, 724 N.W.2d 148. When jurisdictional facts are disputed, the district court's decision on subject matter jurisdiction necessarily involves findings of fact and conclusions of law. Therefore, when disputed facts surround a challenge to the district court's subject matter jurisdiction, we are presented with a mixed question of law and fact. See Escobar v. Reisinger , 133 N.M. 487, 64 P.3d 514, 516 (Ct. App. 2003) (holding jurisdictional challenges under the Uniform Child Custody Jurisdictional Act ("UCCJA") is mixed question of law and fact). Under this standard, we review the "questions of law subject to the de novo standard of review and the findings of fact subject to the clearly erroneous standard of review."

Wigginton v. Wigginton , 2005 ND 31, ¶ 13, 692 N.W.2d 108.

2010 ND 136, ¶ 7, 785 N.W.2d 235.

A.

[¶ 6] We first address Winegar's challenges to Klein properly appealing her issues. For a court's order or judgment to be valid, it must have both subject matter and personal jurisdiction. Albrecht v. Metro Area Ambulance , 1998 ND 132, ¶ 10, 580 N.W.2d 583. The question of subject matter jurisdiction can be raised at any time during the proceeding. N.D.R.Civ.P. 12(h)(3). Additionally, subject matter jurisdiction cannot be conferred by agreement, consent, or waiver. Trottier v. Bird , 2001 ND 177, ¶ 5, 635 N.W.2d 157 ; UCCJEA § 201, cmt., 9 U.L.A. 673 ("since jurisdiction to make a child custody determination is subject matter jurisdiction, an agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective."). Because subject matter jurisdiction cannot be conferred by agreement, consent, or waiver, Winegar's argument that Klein waived the issue by agreeing to the district court's jurisdiction is without merit.

[¶ 7] Next, Winegar argues Klein should have appealed the district court's order finding North Dakota retained exclusive, continuing jurisdiction under N.D.C.C. § 14–14.1–13. We disagree. The district court's order was interlocutory. The order was not a final judgment, nor did it affect a substantial right of either of the parties; it merely allowed the litigation to continue. Therefore, it was proper for Klein to not seek an appeal from the district court's order on January 7, 2016.

[¶ 8] Alternatively, Winegar argues Klein's appeal is improper because she appealed from a "Stipulated Temporary Order," which is interlocutory and not a final judgment. However, the stipulated temporary order controlled the parties' parenting time and rights for two years. We conclude the order is an appealable order under N.D.C.C. § 28–27–02(1).

B.

[¶ 9] We analyze cases involving interstate custody disputes under the UCCJEA, which North Dakota adopted in 1999. See N.D.C.C. §§ 14–14.1–01 to –37. The first step involving interstate custody disputes is to determine which state has jurisdiction for an initial child custody determination. N.D.C.C. § 14–14.1–12. Once a court makes an initial custody determination, that state retains exclusive, continuing jurisdiction until one of the provisions in N.D.C.C. § 14–14.1–13 is triggered. Section 14–14.1–13 states:

Except as otherwise provided in section 14–14.1–15 [temporary emergency jurisdiction], a court of this state which has made a child custody determination consistent with section 14–14.1–12 or 14–14.1–14 has exclusive, continuing jurisdiction over the determination until:

a. A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

b. A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.

Additionally, "exclusive jurisdiction will no longer exist if the relationship between the child and the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that a court could no longer find significant connections and substantial evidence." Benson v. Benson , 2003 ND 131, ¶ 11, 667 N.W.2d 582 (citing UCCJEA § 202, cmt., 9 U.L.A. [674] ).

[¶ 10] Neither party disputes the validity of the original custody determination made in 2004. Therefore, we must determine if one of the provisions in N.D.C.C. § 14–14.1–13 has been triggered. Because Klein still resides in the state, North Dakota retains exclusive, continuing jurisdiction until a court of this state determines: (1) Z.J.W. no longer has a significant connection with the state and (2) the state no longer has substantial evidence concerning Z.J.W.'s care, protection, training, and personal relationships.

[¶ 11] We have yet to define what facts support the finding that North Dakota has a "significant connection" and thus, retains exclusive, continuing jurisdiction under § 14–14.1–13. Although this Court has yet to define "significant connection," numerous other states have set up some sort of framework to aid in their determination. Some states retain exclusive, continuing jurisdiction on the sole fact that the resident parent exercises his or her parenting time within the state. White v. Harrison–White , 280 Mich.App. 383, 760 N.W.2d 691 (2008) ; Uttley v. Bobo , 97 Ark. App. 15, 242 S.W.3d 638 (2006) ; Fish v. Fish , 266 Ga.App. 224, 596 S.E.2d 654 (2004) ; Olson v. Olson , 2002 WL 31056935 (Minn. Ct. App. 2002) (unreported opinion); EB v. EFB , 7 Misc.3d 423, 793 N.Y.S.2d 863 (N.Y. Sup. Ct. 2005) ; Ruth v. Ruth , 32 Kan.App.2d 416, 83 P.3d 1248 (2004). Other states find a significant connection with the state when the resident parent spent time with the child plus the child had: contact with other relatives, West v. West , 364 Ark. 73, 216 S.W.3d 557 (2005) ; In re Forlenza , 140 S.W.3d 373 (Tex. 2004) ; Biggs v. Biggs , 301 S.W.3d 32 (Ky. Ct. App. 2009) ; health care within the state, Griffith v. Tressel , 394 N.J.Super. 128, 925 A.2d 702 (2007) ; Shields v. Kimble , 2010 Ark. App. 479, 375 S.W.3d 738 (2010) ; or spent a considerable amount of time residing in the state prior to moving, Rennie v. Rosenthol , 2010 PA Super 88, 995 A.2d 1217 (2010).

[¶ 12] Additionally, the language of the UCCJEA indicates that mere visitation of the child in the state is sufficient to retain exclusive, continuing jurisdiction. The UCCJEA uses the phrase "significant connection" twice. In § 14–14.1–12, "significant connection" is used to determine initial custody jurisdiction when a child has no "home...