893 N.W.2d 741
N.D.2017Background
- Parents Jessica Klein and Micah Winegar share one child, Z.J.W. (b. 2003); initial North Dakota paternity/custody determination (2004) awarded primary residential responsibility to Klein, later transferred to Winegar (2013) who lives in Iowa.
- Winegar filed a motion to modify custody in Iowa (2015); Klein contested North Dakota’s continued jurisdiction under the UCCJEA and sought transfer to Iowa.
- A judicial referee and then the Cass County district court (de novo review) found North Dakota retained exclusive, continuing jurisdiction under N.D.C.C. § 14-14.1-13 and declined to transfer as an inconvenient forum under § 14-14.1-18.
- The district court and referee relied on facts that Z.J.W.: spent substantial time in North Dakota (including summers), lived most of his early life there, received medical treatment there, and has extended family in North Dakota.
- The parties entered a stipulated temporary order addressing residential responsibility; Klein appealed the denial of her motion to transfer jurisdiction.
Issues
| Issue | Plaintiff's Argument (Klein) | Defendant's Argument (Winegar) | Held |
|---|---|---|---|
| Whether North Dakota retained subject-matter jurisdiction under the UCCJEA | North Dakota no longer has exclusive, continuing jurisdiction; Iowa is proper forum | North Dakota retained jurisdiction from the 2004 custody order; Klein waived by stipulation | North Dakota retained exclusive, continuing jurisdiction under § 14-14.1-13; Klein did not waive jurisdictional challenge (jurisdiction cannot be consented to) |
| Whether Klein waived or forfeited right to appeal | Stipulated temporary order does not bar challenge to subject-matter jurisdiction | Argued waiver, interlocutory appeal, or untimely appeal from final order | Klein’s appeal was timely and proper; subject-matter jurisdiction can be raised anytime and cannot be waived |
| Whether North Dakota was an inconvenient forum under § 14-14.1-18 | Iowa is more convenient because current evidence and providers are in Iowa | North Dakota is convenient given lengthy litigation history and substantial North Dakota evidence | District court did not abuse discretion; balanced statutory factors and reasonably found North Dakota not an inconvenient forum |
| Whether appellate attorney’s fees should be awarded | Requested fees for extra work caused by lower-court rulings | Requested fees arguing Klein’s appeal was frivolous | Fees denied to both: appeal not frivolous or dilatory; no basis for Rule 38 sanctions |
Key Cases Cited
- Schirado v. Foote, 785 N.W.2d 235 (N.D. 2010) (standard of review for UCCJEA jurisdictional challenges)
- Trottier v. Bird, 635 N.W.2d 157 (N.D. 2001) (subject-matter jurisdiction cannot be conferred by agreement)
- Benson v. Benson, 667 N.W.2d 582 (N.D. 2003) (exclusive jurisdiction terminates when connections/substantial evidence are no longer present)
- Anderson v. Anderson, 449 N.W.2d 799 (N.D. 1989) (distinguishing initial-home-state analysis under predecessor UCCJA)
- Luna v. Luna, 592 N.W.2d 557 (N.D. 1999) (consideration of time spent in state and prior litigation in forum non conveniens analysis)
- White v. Harrison-White, 760 N.W.2d 691 (Mich. Ct. App. 2008) (examples of states retaining jurisdiction based on resident parent’s parenting time)