Smith v. Smith

• Decision Date: 27 June 1995
• Docket Number: No. 940196,940196
• Citation: 534 N.W.2d 6
• Parties: David S. SMITH, Plaintiff, Appellee and Cross-Appellant, v. Deborah L. SMITH, n/k/a Deborah L. Thomas, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

Page 6

534 N.W.2d 6

David S. SMITH, Plaintiff, Appellee and Cross-Appellant, v. Deborah L. SMITH, n/k/a Deborah L. Thomas, Defendant,

Appellant and Cross-Appellee.

No. 940196.

Supreme Court of North Dakota.

June 27, 1995.

Tom P. Slorby, Minot, for plaintiff, appellee and cross-appellant.

Robert S. Rau, of Bosard, McCutcheon & Rau, Ltd., Minot, for defendant, appellant and cross-appellee.

SANDSTROM, Justice.

Deborah Smith appealed from a district court judgment deciding issues incident to her divorce from David Smith, who cross-appealed from the judgment. We affirm, holding the appeal should not be dismissed because of benefits accepted under the judgment; the North Dakota trial court properly had jurisdiction over the issues it decided; and unsupervised visitation, spousal support, and allocation of other costs were supported by the record.

I

On May 3, 1993, a California court entered a decree dissolving David and Deborah Smith's marriage. On May 2, 1994, the North Dakota district court entered a judgment giving primary physical custody of the parties' children to their mother, providing reasonable visitation between the children and their father, dividing the marital property, awarding Deborah Smith spousal support of $100 per month for eighteen months, awarding child support of $497 per month, and requiring the parties to pay their own attorney fees. Deborah Smith appealed from the judgment, objecting to the court's award of unsupervised visitation between the children and their father, requesting extended and increased spousal support, requesting David Smith be required to pay therapy charges for the children, and objecting to the court's failure to award her attorney fees. David Smith cross-appealed, asserting the trial court should not have awarded any spousal support.

This Court has jurisdiction under Article VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 28-27-01. The appeal and cross-appeal are timely under Rule 4(a), N.D.R.App.P.

After the divorce Deborah Smith resumed use of her maiden name, Thomas. In this opinion we refer to David Smith as Smith and to Deborah Smith by her maiden name, Thomas.

II

Smith filed a motion requesting this Court to dismiss Thomas' appeal, alleging Thomas accepted spousal support, thus waiving the right to appeal from the judgment by accepting benefits under it.

As a general rule, a party to a divorce action who accepts substantial benefits under the judgment waives the right to appeal from the judgment. Brodersen v. Brodersen, 374 N.W.2d 76, 77 (N.D.1985). We have sharply limited the rule, however, to promote a strong policy of reaching the merits of an appeal. Spooner v. Spooner, 471 N.W.2d 487, 489 (N.D.1991). To waive the right of appeal, the party must unconditionally, voluntarily, and consciously accept a substantial benefit under the judgment. Brodersen at 77. A party does not waive the right to appeal from a divorce judgment, unless the party accepts benefits under circumstances clearly indicating an intention to be bound by the judgment. See Sanford v. Sanford, 295 N.W.2d 139, 142 (N.D.1980). The party moving to dismiss the appeal must clearly establish waiver of the right to appeal by the other party. Brodersen at 77.

Thomas is currently living in California with the parties' two minor children in her care. Smith does not dispute that Thomas has considerable debt and living expenses. Her accepting monthly spousal support payments of $100 does not, under these circumstances, constitute receipt of a substantial benefit under the judgment showing an intention by her to be bound by it. Further, Thomas' acceptance of the spousal support is not inconsistent with her claim on appeal she should have been awarded more support. See Sanford at 142 (acceptance of part of a cash property settlement is not inconsistent with appellant's claim the settlement award should have been larger). We conclude Smith has failed to demonstrate Thomas knowingly and voluntarily accepted substantial benefits under circumstances clearly indicating her intent to be bound by the judgment. Therefore, Thomas did not waive her right to appeal from the judgment.

III

The parties do not agree whether North Dakota or California court's have jurisdiction.

Smith and Thomas were married in 1984 in California. They soon moved to Minot where their two children, Heather and Michael, were born. Smith and Thomas separated in May 1992, and Thomas moved back to California with the children. She petitioned in California for a legal separation on July 15, 1992. Smith filed for a divorce in North Dakota on August 3, 1992. Smith contested the California court's jurisdiction and Thomas contested the jurisdiction of the North Dakota court. Proceedings were held in both states. The trial judges of the two states conferred by telephone about the jurisdictional issues. ¹ They agreed California would retain jurisdiction to dissolve the marriage, but North Dakota was the appropriate forum to decide custody, support, and property division.

To carry out this agreement, the Superior Court of California entered a March 29, 1993 order, retaining jurisdiction "over the marital res" but vacating all related California orders and deferring jurisdiction to North Dakota for "issues requiring in personam jurisdiction." On May 3, 1993 the California court entered a decree divorcing Smith and Thomas. Our trial court recognized the California divorce decree, and, in its May 2, 1994 judgment, resolved the incidental issues of property division, custody, and support.

A

Thomas objects to the telephone communication between the judges. She claims their ex parte discussion was improper.

N.D.C.C. Sec. 14-14-07(4) of the Uniform Child Custody Jurisdiction Act, clearly authorizes courts in different states to communicate before deciding which court should assume jurisdiction:

"4. Before determining whether to decline or retain jurisdiction, the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties."

Discussions between judges under this provision promotes cooperation between the states and can help to avoid re-litigation of similar issues. In re Marriage of Elblkasy, 241 Ill.App.3d 662, 182 Ill.Dec. 715, 717, 610 N.E.2d 139, 141 (1993). See also Adams v. Adams, 107 Nev. 790, 820 P.2d 752, 756 (1991). The parties must be informed of the content of the conversation to protect their rights to fair and impartial decision making. See Burkhalter v. Burkhalter, 634 So.2d 761 (Fla.App. 1 Dist.1994). Here, the judges' communication was recorded and transcribed, giving the parties an opportunity to review it and present objections. Thomas has not persuaded us the judges' communication was either unauthorized or unfair to the parties.

B

Thomas also argues California, not North Dakota, has jurisdiction under the provisions of the Uniform Child Custody Jurisdiction Act, and specifically N.D.C.C. Sec. 14-14-03. In Dennis v. Dennis, 387 N.W.2d 234, 235 (N.D.1986), this Court explained the two-prong inquiry a court must make in deciding whether to assume jurisdiction in a case involving child custody with interstate implications:

"In essence, Chapter 14-14, N.D.C.C., requires that a court make a two-pronged inquiry to determine whether it should entertain a child-custody proceeding having interstate implications: it must first determine whether it has jurisdiction under Section 14-14-03 [U.C.C.J.A. Sec. 3] and, if so, the court must then determine whether it is appropriate to exercise jurisdiction under Section 14-14-07 [U.C.C.J.A. Sec. 7]....

"It is well settled that the decision whether to decline to exercise jurisdiction on inconvenient-forum grounds lies entirely within the trial court's discretion, and its decision will be reversed on appeal only for an abuse of discretion." (Emphasis in original.)

North Dakota's jurisdictional basis in this case is found under N.D.C.C. Sec. 14-14-03:

"1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if:

"a. This state (1) is the home state of the child at the time of commencement of the proceeding, or (2) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

"b. It is in the best interest of the child that a court of this state assume jurisdiction because (1) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (2) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

* * * * * *

"d. (1) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision a, b, or c, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (2) it is in the best interest of the child that this court assume jurisdiction."

The term "home state" is the state where the child has lived with the parents for at least six consecutive months immediately preceding the time involved. N.D.C.C. Sec. 14-14-02(5). Heather and Michael were born in North Dakota and resided here their entire lives until Thomas took them to California in May 1992. Smith began these proceedings in August 1992. Consequently, the North Dakota district court had jurisdiction under N.D.C.C. Sec. 14-14-03(1)(a), because this was the children's home state within six...