Kelly v. Kelly

• Decision Date: 03 February 2009
• Docket Number: No. 20080103.,20080103.
• Citation: 759 N.W.2d 721,2009 ND 20
• Parties: Richard K. KELLY, Plaintiff and Appellant v. Karol Lee KELLY, Defendant and Appellee.
• Court: North Dakota Supreme Court

759 N.W.2d 721

2009 ND 20

Richard K. KELLY, Plaintiff and Appellant v. Karol Lee KELLY, Defendant and Appellee.

No. 20080103.

Supreme Court of North Dakota.

February 3, 2009.

Paul H. Myerchin, Bormann & Myerchin, LLP, Bismarck, ND, for plaintiff and appellant.

William C. Severin (appeared), Severin, Ringsak & Morrow, Bismarck, ND, for defendant and appellee.

Steven C. Emery, pro hac vice, Fort Yates, ND.

MARING, Justice.

[¶ 1] Richard Kelly appealed from a district court judgment granting him a divorce from Karol Kelly but concluding that the district court lacked subject matter jurisdiction over the incidents of the marriage. We reverse and remand, concluding the district court had concurrent subject matter jurisdiction with the tribal court to adjudicate the incidents of the parties' marriage.

I

[¶ 2] Richard Kelly brought this action in state district court seeking a divorce from Karol Kelly. Richard Kelly is a non-Indian. Karol Kelly and the parties' daughter, G.K., are enrolled members of the Standing Rock Sioux Tribe ("Tribe").

[¶ 3] Richard and Karol began a relationship in the late 1990s when both lived in Sioux Falls, South Dakota. They purchased a home together in Canton, South Dakota, and Richard continued operating his family's insurance agency in Sioux Falls with his father. Karol owned non-trust farm and ranch land on the Standing Rock Reservation in North Dakota, and in 2000 the parties moved to the reservation and lived on Karol's farm property there. Richard ran the insurance agency from a trailer on non-trust land owned by Karol on the reservation.

[¶ 4] Richard and Karol married in Las Vegas, Nevada, in June 2003, and their daughter G.K. was subsequently born in Bismarck, off of the reservation. G.K. had been conceived in South Dakota, off of the reservation. The family lived together on the reservation until 2005, when Richard left the home and began living in hotels, ultimately renting a condominium in Bismarck in September 2005. In March 2006, Richard purchased a house in Bismarck. Later in 2006, Richard moved the insurance agency to Bismarck.

[¶ 5] Richard commenced this divorce action in state court in December 2006. Karol answered and filed a counterclaim, requesting that she be granted a divorce from Richard, that she receive child custody, child support, spousal support, and attorney fees, and that the court make an equitable division of the parties' property. While the divorce action was pending, Karol continued to work at the insurance agency in Bismarck until October 2007, when she was terminated. Richard also alleges that the parties attempted to reconcile while the divorce was pending, and that Karol and G.K. lived with him in the house in Bismarck from approximately March through June of 2007.

[¶ 6] In December 2007 a dispute arose over holiday visitation. After a hearing, the district court awarded Richard holiday visitation with G.K. On January 11, 2008, Karol commenced a separate divorce action in tribal court and served a motion in the pending state court action seeking dismissal of that action based upon lack of subject matter jurisdiction. In that motion, Karol asserted for the first time that the tribal court had exclusive jurisdiction in the matter.

[¶ 7] The district court initially held that it lacked subject matter jurisdiction and granted Karol's motion, dismissing the action in its entirety. Richard filed a motion for reconsideration, arguing that the district court at a minimum had jurisdiction to order a divorce of the parties. The district court issued an Order Upon Reconsideration, holding that it had jurisdiction to dissolve the marriage but lacked jurisdiction over the incidents of the marriage. Judgment was entered granting Richard a divorce from Karol but dismissing the rest of the action.

II

[¶ 8] Richard argues on appeal that the district court erred when it concluded it lacked subject matter jurisdiction over the incidents of the marriage.

[¶ 9] We first note that the parties have not challenged the district court's authority to order dissolution of the marriage. This Court has recognized the "divisible divorce" doctrine:

Divorce proceedings typically contain two principle components: (1) the dissolution of the marital status, and (2) the adjudication of the incidences of the marriage. The "divisible divorce" doctrine recognizes that each of these components have "distinct and separate jurisdictional foundations." Hall v. Hall, 585 S.W.2d 384, 385 (Ky.1979).

It has been determined that the dissolution of the marriage is an in rem proceeding and that, if process has been properly effectuated, a court has jurisdiction to change the marital status of the parties even when only one party to the marriage is a resident of the state in which the court is located. Indeed, this Court has recognized that a court need "not have personal jurisdiction over both spouses to validly terminate the marital status" if procedural due process has been met, and that "as long as the plaintiff satisfies the six-month residency requirement under [NDCC] § 14-05-17," a court has jurisdiction to change the parties' marital status "no matter where" the defendant spouse resides. Byzewski v. Byzewski, 429 N.W.2d 394, 397 (N.D.1988)....

But meeting the jurisdictional requirements to sever the marital status itself "does not necessarily grant the court the authority to adjudicate the related inciden[ces] of the marriage." Id. at 397. "Before adjudicating the incidences of the parties' marriage," a trial court "is required to obtain in personam jurisdiction over both [of the spouses]." Simpson [v. O'Donnell], 98 Nev. [516,] 518, 654 P.2d [1020,] 1021 [1982]. Thus, a court must have personal jurisdiction over a nonresident spouse in order to validly adjudicate matters of alimony or spousal support; the distribution or division of property; rights to child custody; and the award of child support.

Smith v. Smith, 459 N.W.2d 785, 787-89 (N.D. 1990) (citations and footnote omitted); see also Catlin v. Catlin, 494 N.W.2d 581, 588 (N.D.1992).

[¶ 10] Nor does Karol assert on appeal that the district court lacked personal jurisdiction over her. She was validly served with process in Bismarck, off of the reservation, and made a general appearance in the action, filing an answer and counterclaim requesting that the district court award a judgment in her favor. It was not until the action had been ongoing for more than a year that Karol first challenged the district court's jurisdiction. Thus, the district court had in personam jurisdiction over Karol and would ordinarily acquire authority to adjudicate the incidents of the marriage.

[¶ 11] When, however, one of the parties to a divorce action is an enrolled tribal member residing on a reservation, the complex interrelation with tribal court jurisdiction becomes a factor. As this Court noted in Rolette County Soc. Serv. Bd. v. B.E., 2005 ND 101, ¶ 6, 697 N.W.2d 333, "[r]elative to the issue of state court jurisdiction, if there is an available forum in the tribal courts, considerations of tribal sovereignty and the federal interest in promoting Indian self-governance and autonomy arise." State court jurisdiction over certain claims is therefore prohibited if it would "undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves." Id. (quoting Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)). Karol asserts that exercise of jurisdiction by the district court over the incidents of the marriage in this case would infringe upon the Tribe's right to self-government.

[¶ 12] We begin our analysis of this issue with the recognition that the provisions of the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901-1963, which create exclusive jurisdiction in the tribal court for certain child custody proceedings involving an Indian child who resides on a reservation, see 25 U.S.C. § 1911, do not apply in this case. By its express terms, ICWA does not apply to an award of custody to a parent in a divorce proceeding. 25 U.S.C. § 1903(1); see Comanche Indian Tribe v. Hovis, 53 F.3d 298, 302 (10th Cir.1995); DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 514 (8th Cir.1989); In re Larch, 872 F.2d 66, 69 (4th Cir.1989); Roe v. Doe, 2002 ND 136, ¶ 8, 649 N.W.2d 566. In fact, this exclusion from the tribal court's exclusive jurisdiction demonstrates a recognition by Congress of the concurrent jurisdiction of state and tribal courts in such cases:

This statutory exclusion clearly indicates that a state court may lawfully award custody of an Indian child to a non-Indian parent in a divorce proceeding. The Act does not confer exclusive jurisdiction on either a tribal court or a state court to award custody of children in a divorce proceeding. Rather, the Act discloses that Congress recognized that there can be concurrent jurisdiction in state and tribal courts.

Larch, at 69; see also Ex parte Rich, 953 So.2d 409, 412 (Ala.Civ.App.2006) (ICWA's exclusion of divorce proceedings supports conclusion that state court has jurisdiction).

[¶ 13] The district court in this case based its holding that it lacked subject matter jurisdiction entirely upon this Court's decision in Byzewski v. Byzewski, 429 N.W.2d 394 (N.D.1988). In Byzewski, the husband was a non-Indian and the wife was an enrolled member of the Standing Rock Sioux Tribe. Id. at 395. The parties lived together for a number of years and had three children prior to their first marriage in 1979. Id. They apparently lived off of the reservation during that first marriage, and were divorced in state court in 1980. Id. The parties remarried in 1983 and resided together on the Standing Rock Sioux Reservation. Id. On March 13, 1986, the parties separated and the wife obtained various orders from the tribal court, including temporary custody of the children, a temporary restraining order,...