State of North Dakota, County of Cass, ex rel. Jessica Lynn Klein, Plaintiff and Jessica Lynn Klein, Plaintiff and Appellant
Micah Lehi Winegar, Defendant and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Susan J. Solheim, Judicial Referee.
B. Kavanaugh (argued), for plaintiff and appellant.
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.
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
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.
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.
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
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 ...