Carol A. BECK, Petitioner, v. Hon. Kirk SMITH, District Court Judge, and the District Court of the Northeast Central Judicial District, Respondents.
Civ. No. 9826.
Supreme Court of North Dakota.
Aug. 29, 1980.
296 N.W.2d 886
Robert A. Alphson, Grand Forks, for respondents; argued by Lawrence DuBois, Grand Forks, appearance by John Lund, Senior Law Clerk.
The petitioner, Carol A. Beck, requests this Court to exercise its original jurisdiction and to use its supervisory power over lower courts, to issue a writ of prohibition against the Grand Forks County District Court to set aside its ex parte order issued July 14, 1980. The ex parte order requires Carol to return custody of her three minor children, Dean Allen, Darrin Lee, and JoAnn Marie, to their father, Phaon A. Beck, pursuant to the terms of a Maryland custody decree dated June 6, 1975, as modified December 27, 1976. Carol also requested a temporary stay of the July 14, 1980, ex parte order pending our determination of the application for a writ which was granted by order of this Court dated July 18, 1980.
During June, 1975, the Circuit Court of St. Mary‘s County, Maryland, granted Phaon a decree of divorce from Carol and granted custody of their three minor children to Phaon with reasonable visitation rights for Carol. Subsequent to the divorce, Carol moved to North Dakota, and Phaon moved to Hawaii with the three children. In December, 1976, the Maryland court, by modification of its June, 1975, decree, provided, among other things, that Carol should have an annual six-week visitation period with the children during the summer months.
During June, 1980, the three children flew from Hawaii to Grand Forks to spend their annual six-week summer visitation with Carol. When Phaon flew to Grand Forks for the children at the end of their visit, he was served with a summons and complaint notifying him that Carol had filed an action in the Nelson County District Court seeking a modification of the Maryland decree to obtain custody of the three children. Phaon filed a motion to dismiss, and, after a hearing at which both Carol and Phaon were represented by counsel, the court entered an order dismissing Carol‘s action for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act,
On July 14, 1980, Phaon, pursuant to
On July 17, 1980, Carol petitioned this Court for a supervisory writ against the Grand Forks County District Court to set aside the ex parte order.
“28-27-02. What orders reviewable. — The following orders when made by the court may be carried to the supreme court:
*
7. An order made by the district court or judge thereof without notice is not appealable, but an order made by the district court after a hearing is had upon notice which vacates or refuses to set aside an order previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.”
Although an ex parte order is not appealable the party against whom it is issued can move the district court to vacate the ex parte order, and the court‘s order denying such motion may then be appealable under the terms of
This Court in Lynch, supra, denied an application for a supervisory writ because the petitioner did not comply with the provisions of
“Under the provisions of Section 28-27-02, sub-section 7, N.D.C.C., an ex parte order is not appealable. It remains non-appealable until such time as the judge who made the order has a chance to reconsider his decision in an adversary proceeding.” 138 N.W.2d at 788
There is generally good reason to require a party to move the district court to vacate its ex parte order rather than to allow a direct appeal from the ex parte order. The motion to vacate allows the district court to hold an adversary hearing upon which it can reconsider the appropriateness of the ex parte order. If the district court denies the motion to vacate the ex parte order, its order denying the motion may then be appealable. If so, the appellate court will have the benefit of an adversarial record upon which to determine whether or not the district court acted correctly.
In the instant case, Carol made no motion in the district court to vacate the ex parte order. If she had made such motion and it had been denied by the trial court, the order denying the motion would have been appealable under
The Honorable Judge Kirk Smith, sitting as the Nelson County District Court, presided over Carol‘s action in Nelson County to modify the Maryland custody decree. Judge Smith, sitting as the Grand Forks County District Court, was also the judge that subsequently heard and granted Phaon‘s request for an ex parte order en
The authority of this Court to issue original and remedial writs is derived from
- Whether or not the Grand Forks County District Court should have abated enforcement of the Maryland decree pending the appeal from the Nelson County District Court‘s dismissal of Carol‘s action in Nelson County?
- Whether or not the Grand Forks County District Court erred by enforcing the Maryland custody decree with an ex parte order?
Writ of Prohibition
Prior to discussing the issues raised by Carol, we shall consider the appropriateness of the specific remedy she has requested; i.e. writ of prohibition.
With regard to the writ of prohibition, this Court stated in Mor-Gran-Sou Elec. Coop v. Montana-Dakota Util. Co., 160 N.W.2d 521 (N.D.1968):
“The writ is not a writ of right. It is an extraordinary writ, to be issued with caution, in cases of extreme necessity, and is available only when the inferior court, body or tribunal is about to act without or in excess of jurisdiction.
“It is not an appropriate writ to revoke an order already made, for its proper use is to prohibit the doing of something, not the undoing of something already done.” 160 N.W.2d at 523.
Upon issuing the ex parte order the District Court completed the act for which Carol now seeks a writ of prohibition. Consequently, we conclude that this is not a proper case for issuance of a writ of prohibition, but that does not prevent us from granting appropriate relief. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979). In Olson, supra, we stated:
“Even though we conclude here that a writ of prohibition is unavailable, we are not thereby prevented from deciding the significant issues raised in the case. Long ago we held that ‘this court, in the exercise of its original jurisdiction, may frame its process as the exigencies require. State v. Archibald, 5 N.D. 359, 362, 66 N.W. 234.’ State v. Langer, supra, [46 N.D. 462] 177 N.W.2d [408] at 413.” 286 N.W.2d at 268.
Thus, we will examine the issues raised by Carol.
Abatement
Carol asserts that the Grand Forks County District Court should have abated enforcement of the Maryland decree until a final determination has been made on her appeal from the Nelson County District Court Order dismissing her action in Nelson County. We disagree.
Although the case of Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D.1978) did not involve an ex parte order, it has some significance to this issue. In Bergstrom, supra, the father filed an action in the Burleigh County District Court requesting the court to assume jurisdiction “for purposes of all child custody determinations and visitation rights” that had been determined with regard to his daughter in a decree of the superior court of the District of Columbia. The Burleigh County District Court dismissed the action for lack of jurisdiction under the Uniform Child Custody Jurisdiction Act,
The case of Wood v. District Court in and for County of El Paso, 181 Colo. 95, 508 P.2d 134 (1973), is also relevant to this issue. In Wood, supra, a couple was granted a divorce in Arapahoe County. Custody of their three children was granted to the mother, and the father received visitation rights. Upon the expiration of a visitation period, the father retained the oldest child contrary to the custody decree. The father subsequently moved for a change of custody in the Arapahoe County District Court. While that motion was pending, the mother petitioned for and received a writ of habeas corpus in the El Paso County District Court ordering the father to return the child to the mother under the terms of the original custody decree of the Arapahoe County District Court. In upholding the El Paso County District Court‘s issuance of the writ enforcing the custody decree, the Colorado Supreme Court stated:
“For the court to do otherwise would condone the father‘s action in illegally retaining the child in defiance of the court order, and were we in this proceeding to interfere with the habeas corpus action in the El Paso County district court, we would likewise be aiding the father in defying the court decree.” 508 P.2d at 135.
So, too, in the instant case requiring an abatement of the enforcement of the Maryland decree pending an appeal from the dismissal of Carol‘s custody modification action would be to condone Carol‘s wrongful detention of the children in violation of the Maryland decree. We conclude that abatement of the enforcement of the Maryland decree pending Carol‘s appeal of the dismissal of her action in Nelson County was neither necessary nor appropriate.
Enforcement of Foreign Custody Decree by Ex Parte Order
The last issue which we must consider on this application is whether or not the Grand Forks County District Court erred in the procedure it used to enforce the Maryland custody decree. Phaon filed a certified
Sections
“14-14-13. Recognition of out-of-state custody decrees. — The courts of this state shall recognize and enforce an initial decree or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this chapter or which was made under factual circumstances meeting the jurisdictional standards of this chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this chapter.” [Emphasis added.]
“14-14-15. Filing and enforcement of custody decree of another state.
1. A certified copy of a custody decree of another state may be filed in the office of the clerk of any district court or family court of this state. The clerk shall treat the decree in the same manner as a custody decree of the district court or family court of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state.
2. A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorney‘s fees, incurred by the party entitled to the custody or his witnesses.” [Emphasis added.]
The National Conference of Commissioners on Uniform State Laws provided a written comment to Section 15 of the Uniform Child Custody Jurisdiction Act which states in pertinent part:
“Out-of-state custody decrees which are required to be recognized are enforced by other states. See section 13. [14-14-13, N.D.C.C.]. Subsection (a) [14-14-15(1), N.D.C.C.] provides a simplified and speedy method of enforcement. It is derived from section 2 of the Uniform Enforcement of Foreign Judgments Act of 1964, 9A U.L.A. 486 (1965).” Handbook of the National Conference of Commissioners on Uniform State Laws, at 213 (1968).
Pursuant to
- Prompt mailing of notice to the judgment debtor at his last known post-office address of the filing of the foreign judgment; and
- Automatic stay of execution or other process of enforcement of the foreign
judgment until 10 days after the date the judgment is filed.2
The notice requirement and the automatic stay of enforcement of a foreign judgment until 10 days after it has been filed with the clerk of a district court affords the judgment debtor an opportunity to request a stay of the enforcement of the foreign judgment and, in the case of a foreign custody decree, to also bring an action to modify the decree. If the judgment debtor does not avail himself of that opportunity, the foreign judgment can be enforced by the district court in like manner as a foreign judgment rendered by a court of this state.
In view of the similarity of facts in the instant case with those of Giddings v. Giddings, 228 N.W.2d 915 (N.D.1975), it is necessary to consider the import of our opinion in Giddings, supra, as it relates to the instant case. In Giddings, supra, a married couple was divorced in Iowa, and the Iowa decree awarded custody of the minor daughter to the mother with reasonable rights of visitation reserved for the father “as are or will be agreed upon between the parties.” Shortly after the decree was entered, the father took the child to North Dakota and refused to return her to her mother in Iowa. The mother then obtained an order from the Iowa court finding the father in contempt for failure to return the child. Armed with the Iowa custody decree and contempt order the mother obtained an ex parte order from the Burleigh County District Court which directed the sheriff of Burleigh County to take the child from the father and place her in the mother‘s custody. The sheriff took the child into custody in compliance with the order, and the father then filed a petition for a writ of habeas corpus with the Burleigh County District Court. A hearing was held on the petition at which the father attempted to introduce evidence that he had not violated the custody arrangement that allegedly had been agreed to between the parties and also that it would not be in the best interests of the child to place her in the custody of her mother and to allow her to be removed from North Dakota. The district court refused to allow the father to introduce such evidence because, in the court‘s opinion, to allow its introduction would result in not giving full faith and credit to the Iowa custody decree. Consequently, the district court denied the petition for the writ of habeas corpus. We held that it was error for the court to enforce the Iowa decree without proceeding under the Uniform Child Custody Jurisdiction Act,
Giddings, supra, involved more than an attempt to enforce a foreign custody decree.3 The father‘s request to introduce evidence that it was not in the best interests of the child to be returned to the custody of her mother in Iowa constituted, in effect, a request for modification of the Iowa custody decree. It was this aspect of the situation that made it necessary for the district court in Giddings, supra, to hold an evidentiary hearing and to render a custody determination in accordance with the provi
A foreign custody decree, a certified copy of which is properly filed under
In her action, Carol requested the Nelson County District Court to accept jurisdiction under
However, the enforcement of the Maryland decree under
WRIT OF PROHIBITION DENIED. STAY OF EX PARTE ORDER CONTINUED PURSUANT TO OPINION.
PEDERSON, SAND and PAULSON, JJ., concur.
VANDE WALLE, Justice, concurring in part and dissenting in part.
I concur in those portions of the majority opinion which conclude this is not a proper case for issuance of a writ of prohibition and that abatement of the enforcement of the Maryland decree pending Carol‘s appeal of the dismissal of her action in Nelson County was neither necessary nor appropriate. I cannot, however, agree with that portion of the majority opinion which concludes that the Uniform Enforcement of Foreign Judgments Act,
A short examination of the reasons for the enactment of a Uniform Enforcement of Child Custody Jurisdiction Act should suffice to indicate that child custody is a special situation requiring special procedures different from those governing ordinary judgments affecting such things as property or money damages.
“e. Deter abductions and other unilateral removals of children undertaken to obtain custody awards;
“f. Avoid relitigation of custody decisions of other states in this state insofar as feasible;
“g. Facilitate the enforcement of custody decrees of other states; . . . .”
Subsection 2 of
The other purpose of the Uniform Child Custody Jurisdiction Act which I have quoted above is to avoid relitigation of custody decisions of other States in this State insofar as feasible. The majority opinion does not define in detail the purpose of the notice of the filing of the foreign decree. I assume the notice is more than a matter of form and that its purpose is to permit the noncustodial parent to object to the enforcement of that decree for procedural or substantive reasons. I fear, however, that the requirement will merely be an addition
It appears the concern of the majority may be that it is contrary to fundamental due process to issue an ex parte order requiring a parent to relinquish custody of her child even if that custody is contrary to a valid foreign custody decree. I might agree that ex parte orders do not provide fundamental due process. But as applied to the particular facts of this case, the requirements of the majority opinion appear unnecessary. Although Phaon obtained an ex parte order requiring Carol to relinquish custody of the children to him, Judge Smith, sitting as the Nelson County district court, also presided in Nelson County over Carol‘s action to modify the Maryland custody decree. The majority opinion concedes that at the Nelson County hearing on the petition for modification of the Maryland custody decree, Carol was represented by counsel and Judge Smith heard legal arguments and evidence by both Carol and Phaon which were pertinent not only to Judge Smith‘s determination that the courts of this State lacked jurisdiction to modify the Maryland decree but to his determination to issue the ex parte order enforcing the Maryland custody decree as well. Thus there can be no contention that this was an ex parte order issued by a judge who was unfamiliar with the issue or who had heard only one side of the issue.
Carol has argued that because Phaon intends to remove the children from the United States to the Philippines, where he is to be employed, the children and Phaon would be removed from the jurisdiction of our courts; that if, on appeal, this court were to reverse Judge Smith‘s decision that the courts of this State lacked jurisdiction to modify the Maryland custody decree, Phaon and the children would no longer be in this country and Phaon would not have to abide by any possible modification in the custody decree made by the courts of this State. This same argument was considered and rejected in Bergstrom v. Bergstrom, 271 N.W.2d 546 (N.D.1978). The record does not disclose that Phaon has refused to abide by custody awards made by the courts of this country. Rather, it is Carol who has taken matters into her own hands and refused to return the children to Phaon‘s custody as required by the only valid existing custody decree, the Maryland decree. Her refusal to return the children to Phaon‘s custody as required by the Maryland decree resulted in Phaon‘s seeking the ex parte order to which Carol now objects.
I would deny the stay of the ex parte order.