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Schirado v. Foote

July 13, 2010


Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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


[¶1] Andrew Schirado appeals the district court's judgment dismissing his custody action against Anna Foote, the mother of his minor child. Schirado also claims the district court erred by dismissing the action without addressing its prior contempt sanction against Foote and her lawyer. We reverse and remand for further proceedings to determine the child's home state under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") and for the district court to clarify its order for contempt and sanctions.


[¶2] Schirado and Foote met in October 2005 and later that month conceived a child in Bismarck, N.D. Schirado is a Caucasian, and Foote is an Indian enrolled in the Three Affiliated Tribes. Schirado was present at the child's birth in Williston, N.D., on July 29, 2006, but he was not listed as the child's father on the birth certificate. Schirado initiated this action in state court on February 9, 2007, seeking a determination of paternity and custody of the child if he was the father. At the time of filing, Schirado was living in Bismarck, Foote was living on the Minot State University campus during the week and living during the weekends and school holidays with her parents in Parshall, N.D., on the Fort Berthold Indian Reservation. The child stayed full time with Foote's parents on the Reservation. Also at the time of filing, the child did not qualify for tribal membership because of an insufficient quantity of Indian blood, although he subsequently qualified for membership.

[¶3] On March 23, 2007, Foote moved the district court to dismiss Schirado's action for lack of subject matter jurisdiction. On April 27, 2007, Foote and her parents petitioned the Three Affiliated Tribes court for legal custody of the child. A hearing on Foote's motion to dismiss was held in the district court on April 30, 2007. At the hearing, Foote presented a tribal court order entered that same day, granting Foote and her parents joint temporary custody of the child for two years. The district court denied Foote's motion to dismiss and granted Schirado's motion for genetic testing, expressing concern for Schirado's due process rights in the tribal court proceedings. [¶4] While waiting for the results of Schirado's paternity test, Foote moved the district court to reconsider her motion to dismiss for lack of subject matter jurisdiction. In July 2007, Schirado was determined to be the child's father. The district court denied Foote's motion for reconsideration, instead scheduling a custody hearing for September 16, 2008. In April 2008, Schirado moved for temporary custody of the child, and Foote, on May 1, renewed her motion to dismiss. At a hearing on Schirado's motion, the parties entered a stipulation granting Schirado visitation and ordering him to pay child support. Foote's motion to dismiss was denied on September 12, 2008.

[¶5] On September 15, 2008, Foote moved for reconsideration of her motion to dismiss. At 8:00 a.m. on September 16, 2008, the district court received a fax from Foote's attorney stating that he and Foote would not be attending the custody hearing scheduled for 9:00 a.m. that same day because the district court lacked subject matter jurisdiction. Attached to Foote's fax was an amicus brief from the Three Affiliated Tribes, claiming the tribal court had exclusive jurisdiction. The district court proceeded with the custody hearing, allowing Schirado to present his case but declining to establish a custody arrangement without the benefit of an adversarial proceeding. Foote's attorney was found in contempt and sanctioned for failing to appear at the custody hearing. That same day, the tribal court entered an ex parte order giving Foote temporary custody of the child. On September 26, 2008, the court denied Foote's pending motion for reconsideration.

[¶6] In January 2009, the district court ordered the parties to participate in mediation. Foote's attorney was given the opportunity to purge his earlier contempt if he and Foote participated in mediation in good faith, if Schirado's visitation was not frustrated and if he and Foote attended all future state court proceedings. On June 12, 2009, having failed to meet the conditions necessary to purge her attorney's contempt, Foote moved the district court to reconsider her motion to dismiss, arguing this Court's decision in Kelly v. Kelly divested the district court of jurisdiction. 2009 ND 20, 759 N.W.2d 721. The district court granted Foote's motion to dismiss on July 22, 2009, concluding:

"In this case, although Anna has not lived on the Fort Berthold Indian Reservation at all times since J.L.F. was born, J.L.F. has lived on the Fort Berthold Indian Reservation at all times. J.L.F. has either lived on the Fort Berthold Indian Reservation with Anna or with Anna's parents. Thus, J.L.F. has lived on the Fort Berthold Indian Reservation with 'a parent or a person acting as a parent.' See N.D.C.C. § 14-14.1-01 (stating that a 'person acting as a parent' is a person that has had physical custody of the child, and physical custody is the physical care and supervision of a child). North Dakota is not J.L.F.'s home state; rather, the Fort Berthold Indian Reservation is his home state. Therefore, this Court does not have jurisdiction to decide this matter."

Schirado timely filed this appeal.


[¶7] Schirado argues the district court erred by finding the child's home state was the Fort Berthold Indian Reservation because the child was not living with either parent on the Reservation and because Foote's parents do not qualify as "a person acting as a parent" 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, 64 P.3d 514, 516 (N.M. Ct. App. 2003) (holding jurisdictional challenge 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.

[¶8] Many facts surrounding Foote's jurisdictional challenge are in dispute, making our review one of a mixed question of law and fact. The factually driven nature of the UCCJEA's jurisdictional analysis requires that a district court make factual findings, or at the very least factual recitations, related to the jurisdictional determination in a given case.

[¶9] Three issues must be addressed at the outset. First, the North Dakota district court had jurisdiction to establish Schirado's paternity under North Dakota's Uniform Parentage Act. N.D.C.C. § 14-20-04. Jurisdiction over a paternity suit does not, however, automatically extend the district court's jurisdiction to make an initial custody determination. See, e.g., Kelly, 2009 ND 20, ¶ 9, 759 N.W.2d 721 (recognizing possibility a district court may have jurisdiction to dissolve a marriage without jurisdiction to adjudicate incidences of the marriage). Second, the Indian Child Welfare Act ("ICWA") does not control this case. The ICWA grants tribal courts exclusive jurisdiction over "child custody proceeding[s]" involving Indian children. 25 U.S.C.A. § 1911(a). The covered "child custody proceeding[s]" include only foster care placements, terminations of parental rights, preadoptive placements and adoptive placements. 25 U.S.C.A. § 1903(1). Despite Foote's enrollment in the Three Affiliated Tribes and despite her exhaustive references to the ICWA in her brief and at oral arguments, the ICWA is not applicable because this case concerns an initial custody determination; a proceeding outside the purview of the ICWA. See In re DeFender, 435 N.W.2d 717, 721 (S.D. 1989). With the ICWA's inapplicability, the UCCJEA provides the exclusive jurisdictional basis for determining this interstate custody dispute. N.D.C.C. § 14-14.1-12(2). Third, the UCCJEA encourages communications between courts faced with competing claims of jurisdiction in child custody proceedings. Section 14-14.1-09(1), N.D.C.C., provides, "A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter." Our district courts should have communications with sister courts when permitted under section 14-14.1-09, and when required under the UCCJEA. See N.D.C.C. §§ 14-14.1-15(4), 14-14.1-17(2), 14-14.1-27.

[ΒΆ10] North Dakota's version of the UCCJEA was adopted in 1999 and codified in N.D.C.C. ch. 14-14.1. The UCCJEA was drafted by the National Conference of Commissioners on Uniform State Laws, and one of its stated purposes is to "[a]void jurisdictional competition and conflicts with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on ...

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