Johnson v. N.D. Workforce Safety and Insurance
812 N.W.2d 455
| N.D. | 2012Background
- California divorce 2002 awarded Bethany primary custody of three children; four additional children born after judgment.
- Oldest child moved to North Dakota with Keith in 2008; remaining six children in California until Aug. 2009.
- Keith moved six children to North Dakota Aug. 2009 with Bethany’s purported approval; Bethany alleges temporary move due to her foreclosure and housing loss.
- North Dakota social services became involved with the children from Nov. 2009 and more so after Feb. 2010; six youngest children eventually joined Bethany in North Dakota May 2010 to Nov. 2011, then two oldest of those six moved to Keith.
- Bethany petitioned to register the California divorce in North Dakota on Dec. 3, 2010; Keith sought custody and later temporary custody based on alleged inability of Bethany to care for the children.
- Feb.–May 2011: district court held evidentiary hearing potential modification; Bethany moved to withdraw; court ordered Bethany to return the four California-residing children to North Dakota; May 20, 2011 amended judgment awarded Keith primary residential responsibility for all seven children; Bethany did not return the four children in a timely manner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fugitive dismissal/disentitlement rule applies to Bethany’s appeal | Johnson argues the court erred in applying the rule. | Johnson contends dismissal is warranted to enforce orders. | Dismissed; appeal disentitled under fugitive rule. |
| Whether the North Dakota court properly exercised jurisdiction to modify custody | Johnson claims ND lacked proper jurisdiction or misapplied PKPA/UCCJEA. | Johnson argues ND was home state and proper forum to modify. | ND had home-state jurisdiction; modified custody affirmed. |
| Whether the district court properly found a material change in circumstances | Johnson contends no sufficient change justifying modification. | Johnson asserted changed circumstances supported modification. | Court found changed circumstances warranted modification. |
| Whether the four California-residing children’ return was enforced | Johnson asserts compliance with orders. | Keith seeks enforcement and custody order compliance. | Court order to return children honored; noncompliance supported dismissal. |
Key Cases Cited
- Colombe v. Carlson, 757 N.W.2d 537 (ND 2008) (disentitlement due to fugitive status in custody matters; strict enforcement of court orders)
- Moscona v. Shenhar, 649 S.E.2d 191 (Va. Ct. App. 2007) (fugitive dismissal rule requires connection between fugitive status and appeal; consider alternatives and policy goals)
- Holkesvig v. Welte, 2012 ND 14 (ND 2012) (necessity to comply with ongoing orders; self-represented litigants must follow pending orders)