Bergstrom v. Bergstrom, 9556-A

• Decision Date: 04 March 1980
• Docket Number: No. 9556-A,9556-A
• Citation: 291 N.W.2d 262
• Parties: Alan BERGSTROM, Plaintiff and Appellant, v. Astrid BERGSTROM and Ida Bergstrom, a minor child, by her Guardian ad Litem, Cameron L. Clemens, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 262

291 N.W.2d 262

Alan BERGSTROM, Plaintiff and Appellant, v. Astrid BERGSTROM and Ida Bergstrom, a minor child, by her Guardian ad Litem, Cameron L. Clemens, Defendants and Appellees.

Civ. No. 9556-A.

Supreme Court of North Dakota.

March 4, 1980.

Irvin B. Nodland, of Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for plaintiff and appellant.

Daniel J. Chapman, of Chapman & Chapman, Bismarck, for defendants and appellees.

VANDE WALLE, Justice.

This is another application for stay pending appeal of an order of a district court in the dispute between Alan Bergstrom and Astrid Bergstrom over custody of their child, Ida Bergstrom. The application for stay pending appeal is granted.

On October 16, 1978, we issued an opinion in Bergstrom v. Bergstrom, N.D., 271 N.W.2d 546, involving these parties. In that case Alan, as Ida's guardian ad litem, had commenced an action in Burleigh County district court asking that court to assume jurisdiction of Ida for purposes of child-custody determination and visitation rights. The district court determined that because actions and appeals involving Ida's custody were pending in the courts of the District of Columbia, the North Dakota courts had no jurisdiction over her custody. It dismissed the action and ordered Alan, as Ida's guardian ad litem, to return Ida to Astrid's custody within ten days. Following the district court's denial of a stay pending appeal, an application for a stay pending appeal was made to this court. We refused to grant the stay, holding that Ida had shown neither a strong likelihood of success on appeal nor irreparable harm that would develop from our failure to grant a stay. ¹ Because the current application for stay pending appeal involves matters arising since our previous opinion, we will not elaborate further on the facts involved in that decision.

Subsequent to our 1978 decision denying the stay pending appeal, the appeal was dismissed by stipulation of the parties. Alan and Astrid returned to the Superior Court of the District of Columbia and submitted the controversy to compulsory arbitration. An order agreed to by Alan and Astrid and approved by the Superior Court of the District of Columbia was entered on January 29, 1979. The parties agreed to the dismissal of their appeals then pending in the courts of the District of Columbia. That order also provided, insofar as custody of Ida was concerned, that Astrid, who lives in the Kingdom of Norway, was to have jurisdiction of Ida during the school year and Alan, who lives in the United States, was to have custody of Ida during the summer. There were also provisions for Alan to visit Ida during the school year.

Ida returned to Norway with Astrid and in June 1979, pursuant to the Superior Court order, came with Alan to Mandan, North Dakota. Prior to the beginning of the school year in Norway, Ida, through a guardian ad litem, Cameron Clemens, instituted an action in the Federal District Court of North Dakota in which she requested an order

". . . prohibiting the removal of Ida from the United States of America against her wishes by any person whatsoever."

After a series of temporary orders prohibiting Ida's removal from this country, the Federal District Court, on October 12, 1979, entered an order including the following provision:

"The defendants, Alan and Astrid Bergstrom, are hereby enjoined from carrying out the dictates of paragraph 2 of the Order of the Superior Court for the District of Columbia, Family Division, dated February 15, 1978, pertaining to the removal of Ida Marie Bergstrom to the Kingdom of Norway. In so ordering, I leave all questions of custody of Ida Marie Bergstrom, within the United States, to the courts having the appropriate jurisdiction." (Emphasis in original.) ²

We have been informed that the October 12, 1979, order of the Federal District Court is now on appeal to the United States Circuit Court of Appeals for the Eighth Circuit.

Following the decision in Federal District Court, Alan filed a lawsuit under Chapter 14-14, N.D.C.C., the Uniform Child Custody Jurisdiction Act, asserting that the Morton County district court should take jurisdiction to modify the District of Columbia Superior Court custody decree. Alan requested custody of Ida. After temporary orders in which Alan retained custody of Ida pending the final determination of the court, the Morton County district court on February 13, 1980, issued its opinion and order decreeing:

"1. That this Court has jurisdiction to modify the custody provisions of the decree of the Superior Court of Washington, D. C., pursuant to Section 14-14-03(1)(b) and (d). (Findings of Fact 1-6)

"2. This Court should exercise that jurisdiction under Section 14-14-07 and not decline exercising jurisdiction because this Court is not an inconvenient forum for the resolution of the disputes between the parties. (Finding of Fact 7)

"3. This Court should exercise that jurisdiction under Section 14-14-08 and not decline exercising jurisdiction, because of the conduct of the parties. (Finding of Fact 8) "4. That the father is not a fit and proper person to have custody of the child.

"5. That the mother is a fit and proper person to have custody of the child.

"6. That the best interests of the child will be met by the mother having total or undivided custody of the child.

"7. That any right the child has to live in the United States is subject to the right of the custodial parent to choose their place of residence, including a residence outside of the United States.

"8. That the Superior Court of Washington, D. C., decree as to custody is modified to provide total and undivided custody by the mother subject to the following:

"(a) Visitation by the father on the second Saturday and Sunday of each month, commencing at 8:30 a. m. until 8:30 p. m. Saturday and 8:30 a. m. until 8:30 p. m. on Sunday.

"(b) That this visitation shall take place in a locality and place to be selected by the mother.

"(c) That at all times during such visitation, a third person must be present with the father, such third person to be selected by the mother.

"(d) That the mother has the right to choose the place of residence for herself and the child and the right to remove the child from the United States to remain with her at a place of residence of her choosing.

"9. That this Court has no authority under Chapter 14-14 to modify the child support provisions of the Superior Court decree.

"10. That the father is required to pay all of the mother's costs of defending this action, including her attorney's fees, witness fees and her costs of travel and subsistence for the hearing and for her costs incurred in delivery of custody of the child to the mother.

"11. The order appointing Cameron Clemens as guardian ad litem is terminated and revoked.

"12. The child shall be physically placed in the custody of the mother not later than noon, February 15th."

Immediately after the issuance of the order, Alan filed a notice of appeal from the order and requested a stay pending appeal from the district court. ³ That request was denied and Alan subsequently petitioned this court to stay the order pending appeal. On February 15, 1980, we issued an order granting a temporary stay of the district court's order of February 13, 1980, pending a hearing on the petition for stay pending appeal and further order of this court.

Following the submission of briefs by the parties and a hearing on February 29, 1980, we have determined to grant the stay pending appeal for reasons which are explained herein.

In our original Bergstrom decision we adopted for purposes of a request to this court for a stay pending appeal the four guidelines established in Cass County Electric Cooperative, Inc. v. Wold Properties, 253 N.W.2d 323 (N.D.1977), for a district court to utilize when addressing an application for a stay. Those guidelines include: (1) a strong showing that the appellant is likely to succeed on appeal; (2) that unless the stay is granted, the appellant will suffer irreparable injury; (3) that no substantial harm will come to any party by reason of the issuance of the stay; and (4) that granting the stay will do no harm to the public interest. 271 N.W.2d at 549.

Although those guidelines are important, there is another matter which we perceive to be of more significance in this instance. We read the Federal District Court order to prohibit Ida's being removed from this country without her consent. Further, we read the order of the Morton County district court as awarding Astrid custody of Ida without any restrictions as to whether or not Astrid may return to Norway with Ida. The order specifically states that Astrid has the right to remove Ida from the United States. Were Astrid to attempt to remove Ida to Norway, that action would apparently be contrary to the order of the Federal District Court but would not be contrary to the order of the Morton County district court. ⁴ The order of the Morton County district court and the "Appendix" which accompanies it show thoughtful consideration of the order of the Federal District Court order. It presents certain matters which may leave in question the factual and legal basis of the Federal District Court order because the Morton County district court order points out that it had evidence and information available to it which were not available to the Federal District Court. But the Federal District Court order is on appeal. The State and Federal courts of this country have long recognized the problems which may result if courts of both systems attempt to resolve the same legal issue simultaneously. In Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 310-311, 66 L.Ed. 607, 611 (1922), the Supreme Court of the United States, speaking through Chief Justice Taft, stated:

"The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first...