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State v. B.B.

Supreme Court of North Dakota

December 19, 2013

STATE of North Dakota and C.W.L., Plaintiffs and Appellees
v.
B.B. and A.T.H., Defendants B.B., Appellant.

Page 652

Sheila K. Keller, Child Support Enforcement, Bismarck, N.D., for plaintiffs and appellees.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] B.B. appeals from a state court judgment establishing him as the father of the child, J.Z.T., and ordering him to reimburse the State for past support paid on behalf of the child and to pay future child support. We affirm, concluding the state court's exercise of jurisdiction does not infringe on the Standing Rock Sioux Tribe's right of self-government, as claimed by B.B.

I

[¶ 2] The child was born in 2003 to the mother, A.T.H. In July 2003, the Standing Rock Sioux tribal court awarded custody of the child to his maternal grandmother, C.W.L. In January 2012, the State of North Dakota sued the child's alleged father, B.B., in state court, seeking an adjudication of paternity, an award of future child support, and an order requiring B.B. to reimburse the State for public assistance provided to the custodial grandmother of the child. Before trial, B.B. moved to dismiss for lack of jurisdiction. The state court ruled the tribal court retained jurisdiction over the issue of residential responsibility and parenting time, but the state court had subject matter jurisdiction to decide paternity and support.

[¶ 3] At trial, the mother testified the child was born in Bismarck. She testified she believes that the child's father is B.B. and that the child was conceived in Mandan. She also testified she never had sexual intercourse with B.B. on the Standing Rock Reservation.

[¶ 4] The district court found the grandmother applied for public assistance on behalf of the child and has been receiving benefits since at least November 2009. The court also found B.B. is rebuttably the father after a genetic test indicated a 99.99 percent probability of paternity. The court found B.B. to be the father of the child and ordered him to reimburse the State for support provided as well as to continue paying child support until the child turns eighteen. The court also found the child, the mother, and the grandmother are all enrolled members of the Standing Rock Sioux Tribe and were all residing on the Standing Rock Sioux Reservation. The court further found B.B. is not a member of the Standing Rock Sioux Tribe and he did not live on the reservation.

[¶ 5] The primary issue in this case involves the district court's subject matter jurisdiction to decide paternity and support under N.D.C.C. §§ 27-05-06, 14-20-04, and 14-09-08 after a tribal court has already issued a custody order. B.B.'s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] B.B. argues the state court did not have jurisdiction to determine paternity and his support obligation, because the case began as a child custody proceeding in Standing Rock Sioux Tribal Court and the child and the custodial grandmother are enrolled members of the Standing Rock Sioux Tribe and live on the Standing Rock Sioux Reservation.

[¶ 7] We recently described the standard of review for a district court's determination of subject matter jurisdiction in child custody cases involving Indian and non-Indian parents:

Page 653

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 (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 ...

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