Beck v. Smith, 9826
| Decision Date | 29 August 1980 |
| Docket Number | No. 9826,9826 |
| Parties | Carol A. BECK, Petitioner, v. Hon. Kirk SMITH, District Court Judge, and the District Court of the NortheastCentral Judicial District, Respondents. Civ. |
| Court | North Dakota Supreme Court |
Garcia & Garcia, Devils Lake, for petitioner; argued by David Garcia, Devils Lake.
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, Chapter 14-14, N.D.C.C. Carol filed an appeal from the court's order of dismissal which is pending before this Court. 1
On July 14, 1980, Phaon, pursuant to Section 14-14-15, N.D.C.C., filed a certified copy of the Maryland custody decree with the Clerk of the Grand Forks County District Court and also filed a motion with the Grand Forks District Court for an ex parte order to enforce the Maryland decree requiring Carol to return custody of the children to him. The court granted Phaon's motion and issued an ex parte order, dated July 14, 1980, enforcing the custody provisions of the Maryland decree.
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.
Section 28-27-02(7), N.D.C.C., sets forth the procedure for seeking relief from an ex parte order:
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 Section 27-28-02(7), N.D.C.C. State ex rel. Olson v. Lynch, 138 N.W.2d 785 (N.D.1965).
This Court in Lynch, supra, denied an application for a supervisory writ because the petitioner did not comply with the provisions of Section 28-27-02(7), N.D.C.C., and in so doing stated:
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 Section 28-27-02, N.D.C.C. It would be appropriate for us to refuse to exercise our original jurisdiction as we did in the Lynch, supra, case because she did not follow the procedure available under Section 28-27-02(7), N.D.C.C., to obtain an appealable order. However, for reasons stated hereinafter, we accept original jurisdiction for limited purposes.
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 enforcing the Maryland decree. The hearing in Carol's Nelson County action resulted in the presentment of legal arguments and evidence by both Carol and Phaon, before Judge Smith, which were pertinent to Judge Smith's determination to issue the ex parte order enforcing the Maryland custody decree. Judge Smith heard Carol's argument urging him to accept jurisdiction to modify the Maryland decree and upon finding that the Court was without jurisdiction to modify the decree, Judge Smith, in effect, determined that no justifiable reason had been presented to prevent enforcement of the Maryland decree. It would place form over substance to require Carol, under the circumstances of this case, to made a motion before the Grand Forks County District Court to vacate its ex parte order because the evidence relevant to that question had already been presented to Judge Smith in the Nelson County action.
The authority of this Court to issue original and remedial writs is derived from Article IV, Section 86, of the North Dakota Constitution. It is a discretionary authority which may not be invoked as a matter of right, and this Court will determine in each case whether acceptance of original jurisdiction is proper. Burlington Northern, Inc. v. North Dakota District Court, etc., 264 N.W.2d 453 (N.D.1978). Under the circumstances of this case, we believe it is in the best interests of justice and of judicial economy to exercise, in a limited manner, our superintending authority in this case. Carol presented the following issues in her application for a writ of prohibition:
(1) 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?
(2) Whether or not the Grand Forks County District Court erred by enforcing the Maryland custody decree with an ex parte order?
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. (Case cites omitted.)
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:
Thus, we will examine the issues raised by Carol.
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.
The rationale for abatement of a second action when a prior action has been filed in another court which...
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