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State v. Winegar

Supreme Court of North Dakota

April 25, 2017

State of North Dakota, County of Cass, ex rel. Jessica Lynn Klein, Plaintiff and Jessica Lynn Klein, Plaintiff and Appellant
v.
Micah Lehi Winegar, Defendant and Appellee

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan J. Solheim, Judicial Referee.

          Earl B. Kavanaugh (argued), for plaintiff and appellant.

          Lilie A. Schoenack (argued), and Alisha L. Ankers (appeared), 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 (N.M. 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 ...


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