Peterson v. Peterson

• Decision Date: 12 February 1997
• Docket Number: No. 960203,960203
• Citation: 1997 N.D. 14,559 N.W.2d 826
• Parties: James PETERSON and Elsie Peterson, Plaintiffs and Appellees, v. Tracy PETERSON, Defendant and Appellant, v. Kent PETERSON, Involuntary Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 826

559 N.W.2d 826

1997 ND 14

James PETERSON and Elsie Peterson, Plaintiffs and Appellees, v. Tracy PETERSON, Defendant and Appellant, v. Kent PETERSON, Involuntary Defendant and Appellant.

Civil No. 960203.

Supreme Court of North Dakota.

Feb. 12, 1997.

Pamela J. Hermes (argued), of Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd., Fargo, for plaintiffs and appellees.

Kevin Erickson (argued), of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, for defendant and appellant. Appearance by Mark Fraase.

MESCHKE, Justice.

¶1 Kent and Tracy Peterson appealed from an order continuing and expanding visitation rights for James and Elsie Peterson, the paternal grandparents of Kent and Tracy's son, Brett. We conclude the visitation order is clearly erroneous, and we remand for further proceedings consistent with this opinion.

¶2 Kent and Tracy were married in June 1990, and Brett was born on October 1, 1992. Kent and Tracy developed marital conflicts and, for more than a year, Kent lived and farmed with his parents on their farm in Ransom County, while Tracy and Brett lived about 25 miles away in an apartment in Valley City. In July 1995, James and Elsie Peterson petitioned under NDCC 14-09-05.1 for the court to compel Tracy to allow their visitation with Brett, claiming she refused them visits since January 1993. The parties attempted to mediate visitation. Although Kent was not a named party, he voluntarily participated in the mediation. The parties agreed the trial judge would mediate and, if mediation failed, the judge would decide visitation from the parties' communications during mediation, without holding a formal evidentiary hearing.

¶3 Mediation failed, and on December 7, 1995, the trial judge ordered grandparent visitation for James and Elsie through April 1996 "on Saturday, the first and third weekend of every month from 10 a.m. through 7 p.m.," and thereafter "the first Saturday of each month from 10 a.m. to 7 p.m. and on the third weekend of the month from Friday at 7 p.m. to Saturday at 7 p.m." The court also specifically set December visitations, including the Christmas holiday. Neither side appealed from this order.

¶4 During January 1996, Kent and Tracy reconciled and moved with Brett to an apartment in Fargo. Kent quit farming and began a construction job, and Tracy became a full-time homemaker. Contemporaneously with that reconciliation, James and Elsie sought an order to show cause, alleging Tracy was not complying with the visitation order. After a hearing, the trial court found Tracy in contempt, ordered her to pay $500 for the grandparent's costs and attorney fees, and declared future violations would subject Tracy "to further civil contempt proceedings and the court will recommend criminal prosecution." Again, neither side appealed the court's order.

¶5 In April 1996, Tracy moved to vacate the visitation order or, alternatively, to modify it to allow visits only on the first Sunday of every other month between, 1:00 p.m. and 5:00 p.m. The trial court on May 29, 1996, held an evidentiary hearing on the motion and, during that hearing and on its own initiative, joined Kent as an involuntary defendant.

¶6 Kent and Tracy argued to the trial court that NDCC 14-09-05.1 unconstitutionally infringed on their fundamental right to be free from undue state interference as parents in raising their child. They also argued the scope of the ordered visitation unreasonably infringed on their parental roles in raising Brett. They testified the twice monthly weekend visitations reduced Kent's overtime hours and income, made it difficult to enroll Brett in gymnastics and other extracurricular programs, and made it more difficult to plan family outings and activities.

¶7 On July 8, 1996, the court entered findings, conclusions, and an order continuing and expanding the visitations. The court recognized Kent and Tracy's reconciliation and reunion as a family was a significant change in circumstances since the initial visitation order, but concluded it was still in Brett's best interest for the grandparents visits to continue. The court ordered those visitations take place on "the first Saturday of each month from 10 a.m. to 7 p.m. and on the third weekend of each month from 10 a.m. on Saturday to 5 p.m. on Sunday," while slightly modifying the December visitations. The court neither decided nor discussed the constitutional objections by Kent and Tracy. They appealed.

¶8 Kent and Tracy contend the trial court lacked subject matter jurisdiction to order visitations, because it did not comply with the statutory mediation procedures under NDCC Ch. 14-09.1. The purpose of that chapter is to encourage voluntary resolution of child custody, support, and visitation disputes. NDCC 14-09.1-01. The statute directs the court to "appoint a mediator from a list of qualified mediators approved by the court." NDCC 14-09.1-03. All communications in mediation proceedings are made confidential and inadmissible as evidence in any court proceeding. NDCC 14-09.1-06. If mediation fails, the mediator "may recommend to the court that a full hearing" be held but "may not make a substantive recommendation to the court." NDCC 14-09.1-08. Kent and Tracy argue the judge failed to follow these mandated procedures when he acted as both mediator and judge after mediation failed and, therefore, the court lacked subject matter jurisdiction to enter a valid visitation order.

¶9 Subject matter jurisdiction is the court's power to hear and determine the general subject of the action. Cordie v. Tank, 538 N.W.2d 214, 217 (N.D.1995). NDCC 14-09-05.1 specifically gives the district court jurisdiction of a petition for grandparent visitation in a civil action. Assuming the trial judge did not comply with the statutory mediation procedures, his procedural error did not extinguish the court's jurisdiction over the subject matter of the action. Subject matter jurisdiction is not determined by whether the court correctly applies a statute to a particular claim because, to hold otherwise, would vest subject matter jurisdiction in the court subject to divestment upon an erroneous ruling. Rott v. Connecticut General Life Ins. Co., 478 N.W.2d 570, 574 (N.D.1991). The trial court's misapplication of a statute may be grounds for appeal, but it neither implicates subject matter jurisdiction nor personal jurisdiction. Matter of Estate of Hansen, 458 N.W.2d 264, 268 (N.D.1990). We hold the district court had subject matter jurisdiction of James and Elsie Peterson's petition for grandparent visitation.

¶10 Furthermore, the parties agreed to vary from the statutory mediation procedure. They agreed to forego an evidentiary hearing and, if mediation failed, to have the trial judge decide visitation from the communications during the mediation. By consenting to the procedure used by the court, the parties voluntarily waived their right to the statutory procedures. See Binder v. Binder, 557 N.W.2d 738 (N.D.1996) (a party can waive due process rights if done in a knowing, voluntary, and intelligent manner).

¶11 Kent and Tracy assert NDCC 14-09-05.1 unconstitutionally infringes on their fundamental right, guaranteed by the Fourteenth Amendment to the United States Constitution, as parents to be free from undue state interference in raising their child.

¶12 Natural parents have the right, superior to that of any person, to the custody and companionship of their children. In Interest of E.J.H., 546 N.W.2d 361, 364 (N.D.1996). Parental choices about the upbringing of children, like those about marriage and family life, are among those associational rights that the United States Supreme Court has ranked "of basic importance in our society," Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971), and are "sheltered by the Fourteenth Amendment against the state's unwarranted usurpation, disregard, or disrespect." M.L.B. v. S.L.J., --- U.S. ----, ----, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996) (under Due Process and Equal Protection Clauses, state may not impose advance record-preparation fees to block impoverished parents' access to appellate review of evidentiary sufficiency to terminate parental rights for unfitness); see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (due process requires clear and convincing evidence to terminate parental rights); Lassiter v. Dep't of Social Serv. of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (no automatic right to appointed counsel in state's action to terminate parental status, but appointment due when character and difficulty of case warrants); Wisconsin v. Yoder, 406 U.S. 205, 231, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972) (recognizing right of "parental control over the religious upbringing and education" of Amish children unless overridden by compelling state interest in education); Boddie, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (state cannot deny divorce for married couple's inability to pay $60 court fees); Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (state cannot compel instruction by public teachers only); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (state law forbidding teaching language other than English invades liberty guaranteed by Fourteenth Amendment). As we explained in Matter of Adoption of K.A.S., 499 N.W.2d 558, 564 (N.D.1993), "parents have a fundamental constitutional right to parent their children which is of the highest order."

¶13 Still, the North Dakota Century Code broadly authorizes the courts to compel visitation with unmarried minor grandchildren for grandparents:

The grandparents of an unmarried minor must be granted reasonable visitation rights ... to the minor by the district court upon application by the grandparents ... unless a finding is made that visitation is not in the best interests of the minor. Visitation rights of grandparents to an...