Malaterre v. Malaterre, 9716

• Decision Date: 15 May 1980
• Docket Number: No. 9716,9716
• Citation: 293 N.W.2d 139
• Parties: Doris M. MALATERRE, Plaintiff and Appellee, v. Frederick F. MALATERRE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 139

293 N.W.2d 139

Doris M. MALATERRE, Plaintiff and Appellee, v. Frederick F. MALATERRE, Defendant and Appellant.

Civ. No. 9716.

Supreme Court of North Dakota.

May 15, 1980.

Traynor & Rutten, Devils Lake, for plaintiff and appellee; no appearance.

Kuchera & Stenehjem, Grand Forks, for defendant and appellant; argued by Thomas John Kuchera, Grand Forks.

SAND, Justice.

Frederick F. Malaterre (Frederick) appealed from an order of the Rolette County district court which dismissed his motion to modify the child custody provision of a divorce judgment entered on 24 Sept 1976 because the district court lacked jurisdiction over the matter. We affirm.

Early in 1976 Doris M. Demery (Doris), then Doris M. Malaterre, initiated an action in the Rolette County district court for divorce from Frederick, her husband of nearly seven years, on the grounds of irreconcilable differences. On 23 Aug 1976 the parties entered into a "stipulation property settlement agreement" providing that each would receive specified particulars of their personal property, that Frederick would pay no alimony to Doris, that Doris would have custody and control of their only child, Angela Mae, subject to specified visitation rights granted to Frederick, and that Frederick would pay $50 per month as child support. The agreement further stated it constituted "full, final, and complete division, settlement, and distribution of the properties of the parties hereto and shall constitute a full and complete compromise and settlement of all of the property rights of the parties hereto and of all claims and demands of every kind, nature, and description." At the time the stipulation was entered into, Frederick resided in Grand Forks, North Dakota, and Doris was living at "103 North Terrace, Fargo, North Dakota." Both Frederick and Doris were enrolled members of the Turtle Mountain Band of Chippewa at all times relevant to this appeal, as was their child, Angela Mae.

On 24 Sept 1976 a judgment granting Doris an absolute decree of divorce from Frederick was entered in the Rolette County district court. The order adopted in full the parties' "stipulation property settlement agreement" which the court stated was just and equitable.

Since the time of the divorce, Doris has changed her residence on numerous occasions and has lived for varying periods of time on or within the exterior boundaries of the Turtle Mountain Indian Reservation which is located within Rolette County, North Dakota. The record disclosed that Doris remained in Fargo until approximately September of 1978. At that time she relocated to Belcourt, North Dakota, which is within the exterior boundaries of the Turtle Mountain Reservation, where she stayed roughly six months. From Belcourt, Doris moved to Phoenix, Arizona, for five months but returned to Belcourt in the summer of 1979 and has resided there since that time. Angela Mae was in the custody and control of her mother throughout the periods of time chronologized above. Frederick remained a resident of Grand Forks throughout the period.

On 24 Aug 1979, Frederick moved the Rolette County district court to modify its 24 Sept 1976 judgment and award him custody of Angela Mae because there had been substantial and significant changes in the circumstances of the parties which seriously affected the best interests and welfare of the child. On 27 Sept 1979 Doris moved the district court to dismiss Frederick's motion for the reason that the state district court lacked jurisdiction over the persons of Doris and Angela Mae because they were living within the exterior boundaries of the Turtle Mountain Indian Reservation. In an affidavit in support of the motion for dismissal, Doris' attorney also asserted that Doris understood that there would be no further change in the child custody arrangement because the "stipulation property settlement agreement" specifically constituted a full and complete compromise and settlement of all the parties' property rights and of all claims and demands of every kind, nature, and description.

A hearing was held in Rolette County district court on Doris' motion for dismissal on 4 Oct 1979. The district court, after hearing the evidence presented by the parties, stated as follows:

". . . Now, I expressly reject the concept that parties, by agreement, may oust a district court of this state of jurisdiction; it has continuing jurisdiction over child custody, but under the circumstances here, the plaintiff (Doris) being an enrolled Indian, residing on the Reservation, as is the child, by the statutes of the federal government, this court is preempted from exercising jurisdiction. Accordingly the motion to dismiss is granted and the counsel for the plaintiff may submit an appropriate order in conformity herewith."

The order granting Doris' motion for dismissal was entered on 9 Oct 1979 and Frederick appealed the dismissal to this court.

The general rule in North Dakota is that a court having jurisdiction to hear a divorce action continues to have jurisdiction regarding the custody, care, and education of the children of the marriage as may be deemed necessary or proper and to vacate or modify any decree as is deemed appropriate in the best interests of the children. Goff v. Goff, 211 N.W.2d 850 (N.D.1973); Eisenbarth v. Eisenbarth, 91 N.W.2d 186 (N.D.1958). This is true regardless of any contract of the parties to the contrary. Eisenbarth v. Eisenbarth, supra ; Sinkler v. Sinkler, 49 N.D. 1144, 194 N.W. 817 (1923). Therefore, we agree with the district court that it was not ousted of its jurisdiction by the "stipulation property settlement agreement" entered into by Doris and Frederick.

However, the above general concept of North Dakota law does not apply to a situation in which the district court loses jurisdiction over one or more of the parties to the action. In the instant case we are assuming that the original divorce proceedings and decree were valid on the basis that the court had jurisdiction over the subject matter and the parties. No question was raised on appeal that the original proceedings or decree were invalid for any reason. Consequently, there is no need for us to review the original divorce proceeding. However, since then the situation and circumstances have changed. The mother and child have become residents and are presently residing within an Indian reservation in the state of North Dakota. Therefore, the sole issue before us on appeal is whether or not the district court was correct in dismissing Frederick's motion to modify the divorce judgment because the court no longer had jurisdiction over Doris and Angela Mae.

Section 203 of the North Dakota Constitution, as amended in 1958, and as pertinent to the issue here, states in part as follows:

". . . (All lands lying within this state owned or held by an Indian or Indian tribes) shall be and remain subject to the disposition of the United States, and . . . said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States, provided, however, that the Legislative Assembly of the state of North Dakota may, upon such terms and conditions as it shall adopt, provide for the acceptance of such jurisdiction as may be delegated to the state by act of Congress . . . ."

Pursuant to Public Law 83-280, § 7 (1953), the North Dakota Legislature enacted Ch. 242, 1963 S.L., which is now codified as Ch. 27-19, NDCC. Section 27-19-01, NDCC, provides as follows:

"In accordance with the provisions of Public Law 280 of the 83rd Congress and section 203 of the North Dakota constitution, jurisdiction of the state of North Dakota shall be extended over all civil causes of action which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance the jurisdiction of the state shall be to the same extent that the state has jurisdiction over other civil causes of action, and those civil laws of this state that are of general application to private property shall have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state."

Section 27-19-08, NDCC, in part and as pertinent to the issue here, provides as follows:

" . . . The civil jurisdiction herein accepted and assumed shall include but shall not be limited to the determination of parentage of children, termination of parental rights, commitments by county mental health boards or county judges, guardianship, marriage contracts, and obligations for the support of spouse, children, or other dependents."

Although there is no specific mention in § 27-19-08 of child custody matters, we believe that they are impliedly included in the provision relating to the "obligations for the support of spouse, children, or other dependents." Therefore, we infer that the Legislature has in effect stated that North Dakota will not have jurisdiction over the above matters, including child custody, of Indians physically residing on Indian reservations unless the Indians adopted or ceded jurisdiction to the state pursuant to federal and state law.

In 1968, the United States Congress enacted Public Law 90-284, § 402 (25 U.S.C. § 1322), § 406 (25 U.S.C. § 1326), which changed the method by which states could assume civil jurisdiction over actions involving Indian parties and occurring within Indian country. Under this law, jurisdiction was obtained by a state only if the tribe, in a separate election, voted to consent to the state's assertion of jurisdiction. Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). The state may no longer unilaterally assert its jurisdiction, and neither may the tribal council acting alone cede jurisdiction to the state on behalf of the tribe. McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Kennerly, supra.

While some of the provisions of Ch....