Roe v. Doe

• Decision Date: 15 August 2002
• Docket Number: No. 20020016.,20020016.
• Citation: 2002 ND 136,649 N.W.2d 566
• Parties: Jane ROE, Plaintiff and Appellee, v. John DOE, Defendant and Appellant, Lora Siegfried, Director, Sioux County Social Service Board as assignee for Jane Roe, Appellee.
• Court: North Dakota Supreme Court

649 N.W.2d 566

2002 ND 136

Jane ROE, Plaintiff and Appellee, v. John DOE, Defendant and Appellant, Lora Siegfried, Director, Sioux County Social Service Board as assignee for Jane Roe, Appellee.

No. 20020016.

Supreme Court of North Dakota.

August 15, 2002.

Vance Gillette, New Town, for defendant and appellant.

Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, for plaintiff and appellee.

Tyrone Jay Turner, Special Assistant State's Attorney, Child Support Enforcement, Burleigh County Courthouse, Bismarck, for appellee.

MARING, Justice.

[¶ 1] John Doe, (a pseudonym), appeals from an order denying his motion to vacate a 1989 amended judgment which established Doe as the father of a child born to Jane Roe, (a pseudonym), and required him to pay child support. We affirm.

I

[¶ 2] Jane Roe is a member of the Standing Rock Sioux Tribe of the Standing Rock Sioux Reservation, and John Doe is a member of Three Affiliated Tribes of the Fort Berthold Reservation. In 1987, Roe and Doe began living together in an apartment in Grand Forks, North Dakota. On November 2, 1988, Roe gave birth to a child in Grand Forks, North Dakota. On November 7, 1988, Doe signed an acknowledgment of paternity of the child. In early 1989, Roe and Doe ceased living together. On May 17, 1989, Roe brought an action in district court to establish paternity, custody, and child support.

[¶ 3] In August of 1989, Roe and Doe entered into a stipulation that Doe was the father of the child born to Roe and that Doe pay $75.00 per month in child support. The stipulation was submitted to the district court for incorporation into the judgment. In October of 1991, the amended judgment was transcribed to Grand Forks County. In November of 1993, Doe's child support obligation was increased to $133.00 per month. In December of 1993, the judgment was transcribed to Burleigh County.

[¶ 4] In June of 1999, a motion to increase Doe's child support obligation was filed. In July of 1999, Doe stipulated that if genetic testing showed he was the father of the child he would pay $1064.00 per month in child support. Genetic testing showed a 99.87 percent probability that Doe could not be excluded as the father of the child. In March of 2000, the judgment was amended to reflect that Doe was required to pay $1,064.00 per month in child support. In June of 2000, Doe was found in contempt for failure to pay child support.

[¶ 5] In October of 2001, approximately twelve years after the entry of the judgment, Doe filed a N.D.R.Civ.P 60(b)(iv) motion to vacate the amended judgment entered on August 31, 1989. Doe argued the amended judgment was void because the trial court lacked subject matter jurisdiction to enter it. Doe argued the trial court lacked subject matter jurisdiction because, at the time the paternity action was filed, the legal residence of Roe and the child was Standing Rock Sioux Reservation. He further argued that, at the time the action was filed, he was a member of Three Affiliated Tribes and a legal resident of the Fort Berthold Reservation, but was living off the reservation to attend school in Grand Forks, North Dakota. Doe contended in an affidavit he did not know the place of conception. Neither Doe nor Roe requested an evidentiary hearing, and the motion was submitted on the record, briefs, exhibits and affidavits. The trial court denied Doe's motion, and Doe appealed the court's January 3, 2002 order.

II

[¶ 6] Our standard of review for motions under Rule 60(b)(iv) is plenary. See First Western Bank & Trust v. Wickman, 527 N.W.2d 278, 279 (N.D.1995)

. When a motion challenges a judgment as void under Rule 60(b)(iv), the court's sole task is to determine the validity of the judgment. Id. Unlike other Rule 60(b) motions, a court has no discretion in deciding whether to grant a Rule 60(b)(iv) motion. Id. Like other Rule 60(b) motions, however, the burden is on the party bringing a Rule 60(b)(iv) motion to show sufficient grounds exist for disturbing the finality of the judgment. See Johnson, Johnson, Stokes, Sandberg, & Kragness, Ltd. v. Birnbaum, 555 N.W.2d 583, 585 (N.D.1996); State ex rel. Niess v. Zillmer, 449 N.W.2d 812, 816 (N.D.1989); State v. Red Arrow Towbar Sales Co., 298 N.W.2d 514, 515-16 (N.D.1980); see also Cramer v. Wade, 985 P.2d 467, 470 n. 2 (Alaska 1999); Boyer v. Boyer, 1999 ME 128, ¶ 6, 736 A.2d 273; In re W.M., 778 P.2d 1106, 1109 (Wyo.1989). But cf. Theresa L. Kruk, Annotation, Who has Burden of Proof in Proceeding Under Rule 60(b)(4) of Federal Rules of Civil Procedure to Have Default Judgment Set Aside on Ground that it is Void for Lack of Jurisdiction, 102 A.L.R. Fed. 811 (noting that when a party brings a motion to vacate a default judgment under Rule 60(b)(4), some courts place the burden of proving the existence of jurisdiction on the party opposing the motion). If the judgment is valid, the Rule 60(b)(iv) motion must be denied. See First Western Bank & Trust, at 279. If the judgment is void, the motion must be granted. Id. The question to be resolved is whether the judgment is void as a matter of law. Id. A judgment entered without subject matter jurisdiction is void. See McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 10, 633 N.W.2d 157.

III

[¶ 7] "[T]he determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation Indians to make their own laws and be ruled by them." McKenzie County Social Service Bd. v. C.G., 2001 ND 151, ¶ 15, 633 N.W.2d 157. We have held, therefore, under certain circumstances, tribal courts have exclusive jurisdiction over paternity actions. See id. at ¶ 18; In re M.L.M., 529 N.W.2d 184, 186 (N.D.1995); McKenzie County Social Services Bd. v. V.G., 392 N.W.2d 399, 402 (N.D.1986). We based our decisions in McKenzie County Social Services Bd. v. V.G., In re M.L.M., and McKenzie County Social Service Bd. v. C.G. on the infringement test of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See McKenzie County Social Services Bd. v. V.G.,392 N.W.2d at 402 (citing Williams, 358 U.S. at 223,79 S.Ct. 269,3 L.Ed.2d 251). Under the infringement test, state court jurisdiction over certain claims is not allowed if it "would undermine the authority of the tribal courts over reservation affairs and thereby infringe on the right of the Indians to govern themselves." See id.

[¶ 8] There are two categories of claims over which the United States Supreme Court has held tribal courts have exclusive civil jurisdiction under the infringement test. Included in the first category are those claims in which a non-Indian asserts a claim against an Indian for conduct occurring on that Indian's reservation. See Williams, 358 U.S. at 223,

79 S.Ct. 269,

3 L.Ed.2d 251. In the second category, are those claims in which all the parties are members of the same Indian tribe and the claim involves conduct occurring on that tribe's reservation. See Fisher v. District Court, 424 U.S. 382, 387-89, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam). It has also been noted that an Indian tribe has exclusive jurisdiction over wholly internal tribal subject matter, such as membership disputes, divorce actions between members domiciled on the reservation, and certain probate actions. See William C. Canby, Jr., American Indian Law In A Nutshell, 187, 198-99, 202 (1998); see also Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ("Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescriberules of inheritance for members."); Smith v. Babbitt, 100 F.3d 556, 558 (8th Cir.1996) ("Essentially, therefore, a membership dispute is an issue for a tribe and its courts."). Additionally, under the Indian Child Welfare Act [ICWA], Congress has given tribal courts exclusive jurisdiction "over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law." 25 U.S.C. § 1911(a). Neither paternity proceedings nor custody proceedings that are part of a divorce action fall under ICWA's mandate of exclusive tribal court jurisdiction. See 25 U.S.C. § 1903(1) (specifically excluding custody determinations in a divorce action); State v. Zaman, 190 Ariz. 208, 946 P.2d 459, 462 (1997) (concluding ICWA does not apply to paternity actions and even the policy underlying ICWA does not apply to a paternity action where there is no threat that the child will not be exposed to his or her Indian heritage); see also 25 U.S.C. § 1902 (stating that ICWA establishes "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture"). Although we are concerned with exclusive tribal court civil jurisdiction in this case, we also note that an Indian tribe has exclusive criminal jurisdiction over crimes committed by Indians against Indians in Indian country unless such crimes fall within the Major Crimes Act of 18 U.S.C. § 1153. See Canby, supra, at 158-59. However, "[o]utside of Indian country, the state has general criminal jurisdiction over all persons, including Indians." Id. at 165.

[¶ 9] In McKenzie County Social Services Bd. v. V.G., we held a tribal court had exclusive civil jurisdiction over a paternity claim where: (1) the mother, the child, and the alleged father were all members of Three Affiliated Tribes of the Fort Berthold Reservation; (2) the child lived with her mother on Fort Berthold Reservation at the time the paternity claim was filed; and (3) there was nothing in the record to contradict the alleged father's assertion that the alleged paternity occurred on Fort Berthold Reservation. 392 N.W.2d at 402. Additionally, we concluded the mother's application for public assistance...