Curtiss v. Curtiss, 20160064.

• Court: United States State Supreme Court of North Dakota
• Citation: 886 N.W.2d 565
• Docket Number: No. 20160064.,20160064.
• Parties: Rebecca Lynn CURTISS, Plaintiff v. Spencer Kerry CURTISS, Defendant and Appellant.
• Decision Date: 17 October 2016

886 N.W.2d 565

Rebecca Lynn CURTISS, Plaintiff
v.
Spencer Kerry CURTISS, Defendant and Appellant.

No. 20160064.

Supreme Court of North Dakota.

Oct. 17, 2016.

886 N.W.2d 567

Spencer K. Curtiss (on brief), self-represented, Bismarck, ND, defendant and appellant.

Rebecca L. Curtiss, plaintiff, no appearance.

McEVERS, Justice.

¶ 1] Spencer Curtiss appeals from a district court Third Amended Judgment modifying his parenting time and its order denying his motion to reconsider. For the reasons discussed in this opinion, we retain jurisdiction under N.D.R.App.P. 35(a)(3) and remand with instructions that the district court make specific findings.

I

[¶ 2] Spencer and Rebecca Curtiss are divorced and have two minor children. Spencer Curtiss was awarded primary residential custody of the children by a district court in Sedgwick County, Kansas. Spencer Curtiss moved to North Dakota in 2009 and Rebecca Curtiss moved to North Dakota in 2010. In February 2011, Spencer Curtiss was convicted and incarcerated at the North Dakota State Penitentiary and remains incarcerated. In March 2011, Rebecca Curtiss moved the North Dakota district court to amend the divorce judgment to provide her with primary residential responsibility of the children. The district court entered an Amended Judgment, as stipulated to by the parties, awarding Rebecca Curtiss primary residential responsibility and awarding Spencer Curtiss supervised parenting time every other weekend at the state penitentiary. The district court issued a Second Amended Judgment modifying Spencer Curtiss's child support obligation in October 2013.

[¶ 3] In July 2015, Spencer Curtiss moved the district court to enforce the existing judgment regarding his parenting time. Spencer Curtiss argued Rebecca Curtiss was not following the judgment by failing to bring the children to the state penitentiary to visit him. In November 2015, Rebecca Curtiss moved the district court to modify the Second Amended Judgment to suspend Spencer Curtiss's parenting time while he is incarcerated. In support of her motion, Rebecca Curtiss argued that she and the children's therapist believed any visits to the state penitentiary are harmful to the children.

[¶ 4] The district court scheduled a hearing to address both parties' motions. Spencer Curtiss moved the court for an order allowing him to participate in the hearing through the Interactive Video Network (“IVN”) due to his incarceration. The court granted Spencer Curtiss's motion, but stated he was responsible for making the arrangements. The district court noted the hearing would not be delayed

[886 N.W.2d 568

or continued if Spencer Curtiss did not make the appropriate arrangements. Spencer Curtiss did not appear through IVN at the December 4, 2015 hearing. Rebecca Curtiss and the children's therapist testified at the hearing.

¶ 5] On December 22, 2015, the district court entered a Third Amended Judgment ordering that, while Spencer Curtiss is incarcerated, the children are not required to visit him, but if the children want to visit him, the parenting time must be supervised by a professional such as a counselor or a therapist. The district court also ordered Spencer Curtiss could set up telephone calls and letters through the children's therapist, and that all communication had to be supervised by a professional. Spencer Curtiss moved the district court to reconsider. The district court denied Spencer Curtiss's motion.

II

[¶ 6] Spencer Curtiss appeals, arguing the district court did not have jurisdiction to amend the judgment; the district court violated his constitutional rights by not issuing an order to the Department of Corrections demanding his appearance at the hearing; the district court erred by not scheduling a hearing and ruling on his motion; and the district court failed to make findings of fact on the record that a material change in circumstance had been established and modifying his parenting time was in the best interests of the children. Spencer Curtiss also makes numerous complaints against the Department of Corrections not relevant in this action and several indiscernible arguments regarding his constitutional rights and bias by the court.

III

[¶ 7] Spencer Curtiss argues the district court did not have jurisdiction over him, without citing any relevant legal authority. He makes no argument that the district court did not have subject-matter jurisdiction. Personal jurisdiction is the court's power over a party, acquired through service of process or by voluntary general appearance in the action. Interest of T.H., 2012 ND 38, ¶ 16, 812 N.W.2d 373. The district court had jurisdiction to amend the Second Amended Judgment. The court had personal jurisdiction over Spencer Curtiss under N.D.R.Civ.P. 4(b)(1). He was incarcerated in Burleigh County at the time of this action. Furthermore, he already submitted to the jurisdiction of the district court by moving to enforce the existing order establishing parenting time. Even if he had a defense to personal jurisdiction, he waived that defense by failing to raise it in a responsive pleading under N.D.R.Civ.P. 12(h).

IV

[¶ 8] Spencer Curtiss argues he had a constitutional right to appear at the hearing, and the district court violated that right by not ordering the Department of Corrections to have Spencer Curtiss appear. Spencer Curtiss is essentially making a procedural due process argument. “[P]rocedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case.” St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175 (quoting Walbert v. Walbert, 1997 ND 164, ¶ 8, 567 N.W.2d 829 ). Prisoners have diminished constitutional protections, but they maintain a due process right to reasonable access to the courts. Adoption of J.S.P.L., 532 N.W.2d 653, 657 (N.D.1995). A prisoner's right to appear at a civil proceeding is limited. Walbert, 1997 ND 164, ¶ 8, 567 N.W.2d 829. “A person's right to appear may be satisfied by allowing

[886 N.W.2d 569

appearance via telephone.” St. Claire, at ¶ 6. However, “The district court [does] not have a duty to ensure [a party's] presence at the trial, telephonically or otherwise.” Id. at ¶ 8.

[¶ 9] Here, the district court issued several orders allowing Spencer...