994 N.W.2d 183
N.D.2023Background
- Gonzalez and Perales were divorced in Texas; both later lived in North Dakota and Perales then relocated to Georgia with the couple’s children.
- The Richland County district court, on an ex parte emergency basis, ordered Perales to return the children to North Dakota.
- Perales challenged the order and the court later held a hearing; Perales appealed the district court’s order requiring return of the children to North Dakota.
- Perales cited only the North Dakota Constitution as support for appellate jurisdiction; the Supreme Court evaluated whether any statute authorized the appeal.
- The district court had also issued and later modified an interim order under N.D.R.Ct. 8.2(a) after finding exceptional circumstances, and the interim order was not the court’s final judgment.
Issues
| Issue | Plaintiff's Argument (Gonzalez) | Defendant's Argument (Perales) | Held |
|---|---|---|---|
| Whether the district court’s order directing return of the children is appealable under N.D.C.C. § 28-27-02 | No statutory appeal exists; interlocutory interim order is not appealable | Appealed relying on the state constitution (Art. VI §§2,6) as grounds for review | Court: Not appealable under § 28-27-02; order was interim and did not finally determine a substantive right; appeal dismissed |
| Whether the order is a "final order" under the UCCJEA (N.D.C.C. § 14-14.1-34) permitting expedited appeal | Order is not final; UCCJEA allows appeal only from final orders | Perales argued appellate jurisdiction existed (constitutional basis only) | Court: Not a final order under the UCCJEA; UCCJEA appeals limited to final orders; no appellate jurisdiction |
Key Cases Cited
- Frontier Enterprises, LLP v. DW Enterprises, LLP, 682 N.W.2d 746 (interlocutory appeals generally not allowed; appealability governed by statute)
- Matter of Guardianship of S.M.H., 960 N.W.2d 811 (two-step test: statutory appealability under § 28-27-02, then Rule 54(b) if applicable)
- State v. Winegar, 893 N.W.2d 741 (subject-matter jurisdiction cannot be conferred by consent; temporary orders may affect substantial rights when long-lasting)
- Fritz v. Hassan, 316 N.W.2d 797 (order not appealable if interlocutory and not dispositive)
- Kostrzewski v. Frisinger, 680 N.W.2d 271 (confirmation/denial of foreign custody judgment is appealable as deciding validity for registration/enforcement)
- Bell v. Pro Tune Plus, 835 N.W.2d 858 (dismissal without prejudice is not appealable; appealability requires determination that prevents a later appealable judgment)
- In re J.P.L., 359 S.W.3d 695 (Tex. Ct. App.) (UCCJEA: an order abated or reconsidered is not a final order for purposes of appeal)