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Kelly v. Kelly

February 3, 2009

RICHARD K. KELLY, PLAINTIFF AND APPELLANT
v.
KAROL LEE KELLY, DEFENDANT AND APPELLEE



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

The opinion of the court was delivered by: Maring, Justice.

REVERSED AND REMANDED.

[¶1] Richard Kelly appealed from a district court judgment granting him a divorce from Karol Kelly but concluding that the district court lacked subject matter jurisdiction over the incidents of the marriage. We reverse and remand, concluding the district court had concurrent subject matter jurisdiction with the tribal court to adjudicate the incidents of the parties' marriage.

I.

[¶2] Richard Kelly brought this action in state district court seeking a divorce from Karol Kelly. Richard Kelly is a non-Indian. Karol Kelly and the parties' daughter, G.K., are enrolled members of the Standing Rock Sioux Tribe ("Tribe").

[¶3] Richard and Karol began a relationship in the late 1990s when both lived in Sioux Falls, South Dakota. They purchased a home together in Canton, South Dakota, and Richard continued operating his family's insurance agency in Sioux Falls with his father. Karol owned non-trust farm and ranch land on the Standing Rock Reservation in North Dakota, and in 2000 the parties moved to the reservation and lived on Karol's farm property there. Richard ran the insurance agency from a trailer on non-trust land owned by Karol on the reservation.

[¶4] Richard and Karol married in Las Vegas, Nevada, in June 2003, and their daughter G.K. was subsequently born in Bismarck, off of the reservation. G.K. had been conceived in South Dakota, off of the reservation. The family lived together on the reservation until 2005, when Richard left the home and began living in hotels, ultimately renting a condominium in Bismarck in September 2005. In March 2006, Richard purchased a house in Bismarck. Later in 2006, Richard moved the insurance agency to Bismarck.

[¶5] Richard commenced this divorce action in state court in December 2006. Karol answered and filed a counterclaim, requesting that she be granted a divorce from Richard, that she receive child custody, child support, spousal support, and attorney fees, and that the court make an equitable division of the parties' property. While the divorce action was pending, Karol continued to work at the insurance agency in Bismarck until October 2007, when she was terminated. Richard also alleges that the parties attempted to reconcile while the divorce was pending, and that Karol and G.K. lived with him in the house in Bismarck from approximately March through June of 2007.

[¶6] In December 2007 a dispute arose over holiday visitation. After a hearing, the district court awarded Richard holiday visitation with G.K. On January 11, 2008, Karol commenced a separate divorce action in tribal court and served a motion in the pending state court action seeking dismissal of that action based upon lack of subject matter jurisdiction. In that motion, Karol asserted for the first time that the tribal court had exclusive jurisdiction in the matter.

[¶7] The district court initially held that it lacked subject matter jurisdiction and granted Karol's motion, dismissing the action in its entirety. Richard filed a motion for reconsideration, arguing that the district court at a minimum had jurisdiction to order a divorce of the parties. The district court issued an Order Upon Reconsideration, holding that it had jurisdiction to dissolve the marriage but lacked jurisdiction over the incidents of the marriage. Judgment was entered granting Richard a divorce from Karol but dismissing the rest of the action.

II.

[¶8] Richard argues on appeal that the district court erred when it concluded it lacked subject matter jurisdiction over the incidents of the marriage.

[¶9] We first note that the parties have not challenged the district court's authority to order dissolution of the marriage. This Court has recognized the "divisible divorce" doctrine:

Divorce proceedings typically contain two principle components:

(1) the dissolution of the marital status, and (2) the adjudication of the incidences of the marriage. The "divisible divorce" doctrine recognizes that each of these components have "distinct and separate jurisdictional foundations." Hall v. Hall, 585 S.W.2d 384, 385 (Ky. 1979).

It has been determined that the dissolution of the marriage is an in rem proceeding and that, if process has been properly effectuated, a court has jurisdiction to change the marital status of the parties even when only one party to the marriage is a resident of the state in which the court is located. Indeed, this Court has recognized that a court need "not have personal jurisdiction over both spouses to validly terminate the marital status" if procedural due process has been met, and that "as long as the plaintiff satisfies the six-month residency requirement under [NDCC] §14-05-17," a court has jurisdiction to change the parties' marital status "no matter where" the defendant spouse resides. Byzewski v. Byzewski, 429 N.W.2d 394, 397 (N.D. 1988). . . .

But meeting the jurisdictional requirements to sever the marital status itself "does not necessarily grant the court the authority to adjudicate the related inciden[ces] of the marriage." Id. at 397. "Before adjudicating the incidences of the parties' marriage," a trial court "is required to obtain in personam jurisdiction over both [of the spouses]." Simpson [v. O'Donnell], 98 Nev. [516,] 518, 654 P.2d [1020,] 1021 [1982]. Thus, a court must have personal jurisdiction over a nonresident spouse in order to validly adjudicate matters of alimony or spousal support; the distribution or division of property; rights to child custody; and the award of child support.

Smith v. Smith, 459 N.W.2d 785, 787-89 (N.D. 1990) (citations and footnote omitted); see also Catlin v. Catlin, ...


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