Carlson v. Carlson, 2011 ND 168

Richard Kelly (non-Indian) and Karol Kelly (Standing Rock enrolled) are owners of tribal and non-tribal insurance businesses; their minor child is enrolled in Standing Rock Sioux Tribe; they initiated divorce in 2006-2007 with ongoing tribal court proceedings and intermittent state court involvement; state court granted custody to Karol and imposed a five-year restraining order on Karol’s interference with Kelly Insurance; the court awarded Richard a $40,000 cash payment related to Karol’s conduct in tribal proceedings; the North Dakota Supreme Court later addressed UCCJEA home-state issues and tribal court interplay, remanding for jurisdictional fact development and applying UCCJEA to determine custody jurisdiction and ancillary relief; the district court later affirmed custody to Karol, with restraints and a monetary sanction to Karol, and the ND Supreme Court affirmed in part and remanded for geographic limitation under ND Century 9-08-06.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the state district court had subject matter jurisdiction to decide child custody under the UCCJEA.	Richard contends the state court acquired custody jurisdiction.	Karol contends the Standing Rock Reservation or tribal court had jurisdiction.	Yes; state court had subject matter jurisdiction under UCCJEA 14-14.1-12.
Whether the restraining order against Karol appropriately restrains interference with Kelly Insurance.	Richard argues the order is proper to protect goodwill and property distribution.	Karol argues the restraint is an unlawful restriction on her livelihood and improperly copied from another case.	The district court had authority to restrain interference to protect goodwill, but geographic scope must be limited under 9-08-06.
Whether the $40,000 cash payment was an appropriate sanction for Karol’s conduct in tribal court proceedings.	Richard contends sanctions are warranted for increased legal fees due to Karol’s conduct.	Karol asserts the sanction is improper and improperly tied to tribal court conduct.	The district court did not abuse discretion; the sanction is supported by findings and is affirmed.
Whether the attorney-fee sanction requiring payment within 90 days is proper.	Richard seeks enforcement as a fee sanction.	Karol challenges the basis and timing of the fee award.	Affirmed; sanction accorded within 90 days consistent with authority to sanction misconduct.

Schirado v. Foote, 2010 ND 136, 785 N.W.2d 235 (ND 2010) (standard for de novo review of jurisdictional facts in UCCJEA cases; mixed questions of law and fact)
Harshberger v. Harshberger, 2006 ND 245, 724 N.W.2d 148 (ND 2006) (jurisdiction challenges reviewed de novo when facts are undisputed; mixed for disputed facts)
Benson v. Benson, 2003 ND 131, 667 N.W.2d 582 (ND 2003) (multi-step process for determining whether to exercise jurisdiction under UCCJEA/PKPA)
Dronen v. Dronen, 2009 ND 70, 764 N.W.2d 675 (ND 2009) (district court’s discretion to award attorney fees as sanctions in divorce actions; review for abuse of discretion)
Entzie v. Entzie, 2010 ND 194, 789 N.W.2d 550 (ND 2010) (sanctions for misconduct; proportionality and findings required)
Earthworks, Inc. v. Sehn, 553 N.W.2d 490 (ND 1996) (public policy limits on restraints; covenants not to compete in property divisions)
Fischer v. Fischer, 834 P.2d 270 (Colo. Ct. App. 1992) (covenants not to compete may be used to protect goodwill in divorce distributions)
Lord v. Lord, 454 A.2d 830 (Me. 1983) (non-compete restraints in divorce contexts must be reasonable and narrowly tailored)