911 N.W.2d 324
N.D.2018Background
- Parties are ex-spouses and military members; divorce obtained in Germany (2011) with mother awarded primary custody of child (born 2009). 2012 German decree was registered in Grand Forks, ND.
- North Dakota district court entered amended judgments in 2012–2013 addressing parenting and support; later proceedings concerned transportation for parenting time and a 2016 motion to modify child support filed by Wallace‑Ferguson.
- At the time of the modification request, Wallace‑Ferguson and the child lived in another U.S. state; Ferguson was reassigned overseas (South Korea) and later indicated a subsequent station in Abu Dhabi.
- Ferguson moved to transfer jurisdiction to Texas and argued ND lacked continuing, exclusive jurisdiction (CEJ) to modify support because neither party nor the child resided in ND.
- The ND district court retained jurisdiction, held hearings (telephonic testimony and evidence), and issued a fourth amended judgment increasing Ferguson’s child support; Ferguson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ND retained continuing, exclusive jurisdiction to modify its child support order under UIFSA | Ferguson: CEJ ended because obligor, obligee, and child no longer resided in ND; therefore ND lacked subject‑matter jurisdiction | Wallace‑Ferguson: UIFSA contains exceptions; ND retained jurisdiction because one party resided in another state and the other resided outside the U.S., and/or Ferguson may still reside in ND | Court: ND retained jurisdiction under N.D.C.C. §14‑12.2‑45(6) (UIFSA §611(f)) and alternatively under §14‑12.2‑08(1)(a) if Ferguson still resided in ND; affirmed jurisdiction |
| Proper interpretation of "reside" for UIFSA when obligor is active military stationed overseas | Ferguson: His overseas station means he no longer resides in ND for UIFSA purposes | Wallace‑Ferguson: Evidence supported either that Ferguson resided outside U.S. (triggering §14‑12.2‑45(6)) or that he still resided in ND (triggering §14‑12.2‑08(1)(a)); UIFSA contemplates mobility of servicemembers | Court: Evidence permitted finding Ferguson either resided abroad or remained a ND resident; either scenario preserves ND’s ability to modify under UIFSA; no error |
| Whether UIFSA’s ‘‘play‑away’’ rule bars ND modification when parties and child left the issuing state | Ferguson: Play‑away principle means issuing state loses CEJ if all parties left | Wallace‑Ferguson: UIFSA 2008 added §611(f) to except situations where one party is in another state and the other is outside the U.S. | Court: UIFSA §611(f) is a narrow exception to play‑away; it applies here and supports ND jurisdiction |
| Whether the district court erred in imputing overseas housing allowance (OHA) as income when obligor lived in on‑base barracks and did not receive OHA | Ferguson: No evidence he received OHA; lived in barracks; OHA applies to off‑base housing | Wallace‑Ferguson: Military housing constitutes in‑kind income; court may impute value for housing even if no cash allowance shown | Court: Under ND Admin. Code, value of employer‑provided housing is includable as in‑kind income; court did not err in imputing housing value for support calculation |
Key Cases Cited
- Smith v. Baumgartner, 665 N.W.2d 12 (N.D. 2003) (background on ND adoption of UIFSA and interstate support rules)
- Henderson v. Henderson, 598 N.W.2d 490 (N.D. 1999) (explaining CEJ and UIFSA replacing RURESA)
- Harshberger v. Harshberger, 724 N.W.2d 148 (N.D. 2006) (judgment entered without subject‑matter jurisdiction is void)
- Brew v. Brew, 903 N.W.2d 72 (N.D. 2017) (standards for reviewing child support determinations and requirement to state income basis)
- Kobs v. Jacobson, 707 N.W.2d 803 (N.D. 2005) (trial court cannot ignore guidelines or make unsupported income findings)