Harshberger v. Harshberger

• Decision Date: 28 November 2006
• Docket Number: No. 20060039.,20060039.
• Citation: 724 N.W.2d 148,2006 ND 245
• Parties: Christopher Paul HARSHBERGER, Plaintiff and Appellee v. Tannya Dawn HARSHBERGER, n/k/a Tannya Dawn Radke, individually, and as the natural guardian of A.D.M., a minor child, Defendant and Appellant.
• Court: North Dakota Supreme Court

724 N.W.2d 148

2006 ND 245

Christopher Paul HARSHBERGER, Plaintiff and Appellee v. Tannya Dawn HARSHBERGER, n/k/a Tannya Dawn Radke, individually, and as the natural guardian of A.D.M., a minor child, Defendant and Appellant.

No. 20060039.

Supreme Court of North Dakota.

November 28, 2006.

COPYRIGHT MATERIAL OMITTED

Charles L. Neff, Neff Eiken & Neff, P.C., Williston, ND, for plaintiff and appellee.

Bonnie Paradis Humphrey, Minot, ND, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Tannya Dawn Harshberger, now known as Tannya Dawn Radke ("Radke"), appealed from a judgment granting Christopher Paul Harshberger primary physical care, custody, and control of their minor child. Because the district court did not have jurisdiction to decide the custody dispute under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), N.D.C.C. ch. 14-14.1, we vacate the judgment.

I

[¶ 2] Harshberger and Radke were married in Wibaux, Montana, in May 1995, and had a daughter who was born in April 1996. The parties were divorced in Montana on August 1, 1996. The Montana divorce decree granted Radke custody of their daughter and awarded Harshberger "reasonable visitation." Harshberger moved to Portland, Oregon, and Radke remained in Glendive, Montana, with their daughter and another of Radke's children. During late 1996 and early 1997, there were numerous referrals to Montana Child Protective Services regarding Radke's family, and the children were placed in "kinship foster care" on April 4, 1997.

[¶ 3] By November 14, 1997, Radke had moved to Stark County, North Dakota. On that date, a Montana district court issued an order finding the children were "youths in need of care as neglected or abused youths," and extending for 90 days the court's previous order granting the care, custody, and control of the children to Wibaux County Child and Family Services. The Montana court further ordered Wibaux County Child and Family Services to "make arrangements with the Stark County, North Dakota, Social Services Department for the purposes of initiating a transfer of the children at the end of the ninety-day period through use of the Interstate Compact." On December 23, 1997, the Montana court ordered the Montana Department of Public Health and Human Services to arrange for Christmas Day visitation between Radke and the children, and it appears the children were returned to Radke in Stark County on February 9, 1998.

[¶ 4] In 2001, Harshberger received notice of child support arrears and learned that Radke was living in Dickinson. On March 20, 2001, Harshberger brought an action in North Dakota district court under the Uniform Parentage Act, N.D.C.C. ch. 14-17, seeking an order for genetic testing and "a judicial determination whether he is, in fact, the biological father" of the child. At this time, Harshberger resided in Portland, Oregon, and Radke continued to reside in Dickinson. Radke did not object to genetic testing or register the Montana divorce judgment in North Dakota, see Kostrzewski v. Frisinger, 2004 ND 108, ¶¶ 12-17, 680 N.W.2d 271 (discussing registration procedures under the UCCJEA), and on July 11, 2002, the district court ordered testing based on the parties' stipulation. The DNA tests proved Harshberger was the father, and he began paying child support. The court issued no order concluding Harshberger's paternity action.

[¶ 5] By January 17, 2003, Radke and the children had moved back to Montana. On that date Stark County Social Services sent its documentation on the family to Montana Family Services. The documentation informed Montana authorities that Stark County Social Services "had been considering court action to remove the children due to domestic violence, abuse and neglect." Montana Family Services began receiving additional reports of suspected neglect and abuse of the children in the home of Radke and her new husband during 2003 and 2004. In the spring of 2004, Radke and her family were living in Billings, Montana, and Harshberger, still a resident of Oregon, attempted to obtain visitation with his daughter.

[¶ 6] In the meantime, Harshberger's paternity action remained pending in the North Dakota court system. On April 15, 2004, the district court administrator served on the parties' attorneys a notice of intent to dismiss. Harshberger responded on April 30, 2004, with a motion to continue the action and to establish visitation rights with the child. Harshberger did not attempt to register the Montana divorce decree, which already awarded him "reasonable visitation" with the child. The court granted the motion to continue the pending action. A hearing on Harshberger's motion to establish visitation rights was held on November 29, 2004. At this time, Harshberger and his new wife were living in Spokane, Washington, and Radke and her family were living in Glendive, Montana. Harshberger and Radke appeared at the hearing and reached agreement on many facets of visitation, except some cost issues. On December 14, 2004, the district court issued an "interim" order establishing a visitation schedule, but reserved making the order permanent until the parties furnished financial information.

[¶ 7] Approximately four months later, on April 29, 2005, the district court for Dawson County, Montana, entered an order adjudicating one of Radke's children a "youth in need of care" and giving the Montana Department of Public Health and Human Services, Child and Family Service Division, temporary authority to conduct an investigation into allegations of child abuse, neglect, and abandonment. In early August 2005, Radke and her husband were living apart and meeting with caseworkers from the Department of Family Services in Dawson County, Montana. At that time, Radke was considering a move to either Miles City, Montana, or to North Dakota.

[¶ 8] On August 12, 2005, the North Dakota district court issued to the parties' attorneys another notice of intent to dismiss Harshberger's action. On August 23, 2005, Harshberger responded by resisting the dismissal and moving for an order holding Radke in contempt for violating the interim order, an order granting him further visitation with his daughter, or alternatively, an order granting him legal custody of the child. Harshberger alerted the court that Radke had been the subject of "numerous" Montana court orders and "there is now pending an Order to Show Cause hearing . . . involving [Radke's] alleged failure to follow the mandates issued by the Montana Department of Family Services."

[¶ 9] On August 26, 2005, Radke and her family moved from Montana to Baldwin, North Dakota, and enrolled the three oldest of the five children in school. On September 8, 2005, the Montana Department of Family Services petitioned the Montana district court to remove the children from the Radkes. On September 12, 2005, the Montana Department of Family Services, with the assistance of the Burleigh County Sheriff's Department, removed the children from North Dakota and placed them in foster care in Montana. On the same date, the North Dakota district court denied Harshberger's motion to amend the interim order and set the matter for trial so "the issues surrounding custody and child support [can] be resolved." Radke's current attorney entered an appearance, and on October 11, 2005, moved for a change of venue from Stark County to Burleigh County. On October 18, 2005, Harshberger's attorney informed the district court of the pending Montana court proceedings concerning Radke. On November 1, 2005, the North Dakota district court denied Radke's motion for change of venue because it "would only spawn mischief." On November 3, 2005, Radke moved for a continuance, which was also denied by the North Dakota court.

[¶ 10] On November 7, 2005, Radke, for the first time, moved to dismiss the action, asserting that none of the procedures under the UCCJEA had been followed. Radke requested that the North Dakota court communicate with the Montana court concerning the simultaneous actions. Following a November 8, 2005, hearing in which the North Dakota court orally granted Harshberger's motion for change of custody, Radke moved to vacate the oral decision, arguing the North Dakota court lacked subject matter jurisdiction under the UCCJEA to adjudicate Harshberger's change of custody motion. In its findings of fact, conclusions of law, and order for judgment, the district court concluded it had subject matter jurisdiction over the action because Radke and the child were residents of Stark County, North Dakota, when the action was begun in 2001, and Radke was again a resident of North Dakota at the time of the November 8, 2005, hearing. The court found a material change of circumstances justifying a change of custody of the child from Radke to Harshberger. The record does not reflect that the North Dakota court ever communicated with the Montana court concerning the simultaneous proceedings involving Radke and the child.

[¶ 11] Radke's appeal from the judgment is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 12] Interstate custody disputes are governed by the UCCJEA, N.D.C.C. ch. 14-14.1, enacted in North Dakota in 1999, and the Parental Kidnapping Prevention Act ("PKPA"), 28 U.S.C. § 1738A. The UCCJEA was designed to eliminate "dueling state custody proceedings." In re Marriage of Iwed, 34 Kan.App.2d 178, 116 P.3d 36, 38 (2005). Judicial cooperation is one of the methods intended to eliminate simultaneous proceedings, and the UCCJEA provides mechanisms for courts to cooperate with each other. See K.G. Stoner, The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)—A Metamorphosis of the Uniform Child Custody Jurisdiction Act (UCCJA), 75 N.D. L.Rev. 301, 308 (1999); Uniform Child Custody and Enforcement Act § 112, Comment, 9 Uniform Laws Annotated 669 (Part IA 1999). The role of...