State ex rel. Joseph v. Redwing

• Decision Date: 15 January 1988
• Docket Number: No. 15879,15879
• Citation: 429 N.W.2d 49
• Parties: STATE of South Dakota, ex rel. Karen A. JOSEPH, formerly Karen A. Christenson Redwing, Plaintiff and Appellee, v. Norman REDWING, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 49

429 N.W.2d 49

STATE of South Dakota, ex rel. Karen A. JOSEPH, formerly

Karen A. Christenson Redwing, Plaintiff and Appellee, v. Norman REDWING, Defendant and Appellant.

No. 15879.

Supreme Court of South Dakota.

Considered on Briefs Jan. 15, 1988.

Decided Sept. 14, 1988.

Gary L. Gellhaus, Brown County States Atty., Aberdeen, for plaintiff and appellee.

Philip W. Morgan, Britton, and Jarvis W. Brown, Faulkton, for defendant and appellant.

MILLER, Justice.

This is an appeal from a contempt order in a child support action claiming that the circuit court lacked subject matter jurisdiction by virtue of a prior tribal court divorce. We affirm.

Both parties to this appeal are Indian. Appellant Norman Redwing (Norman) is a member of the Sisseton-Wahpeton Sioux Tribe and currently resides on Indian land. According to the stipulation of facts, appellee Karen A. Joseph, formerly Karen A. Redwing (Karen), is a member of the Ft. Yates Sioux Tribe of North Dakota but resides in Aberdeen, South Dakota (not Indian country), with the couple's daughter Chanda.

Norman and Karen lived in Aberdeen before and during their marriage, but were married in the tribal court of the Sisseton- Wahpeton Sioux Tribe. Several months later, the tribal court entered a decree of divorce terminating the marriage. The divorce decree held that Norman was the father of the couple's then unborn child (Chanda); that he must pay child support (although no amount was set); and, further, that he must pay Karen certain sums of money per month (although not clear on the face of the tribal court decree, evidence was presented in this action that the monthly payments were in reality a property settlement). Subsequently, in September 1975, Karen commenced a divorce action in the circuit court in Brown County, South Dakota, seeking a divorce, custody of Chanda, and an award of child support from Norman. Norman, who had since moved onto trust-deeded Indian land, responded by motion, arguing that the circuit court did not have jurisdiction since the divorce had previously been granted by the tribal court. The circuit court dismissed Karen's complaint on the grounds that "there was no marriage to dissolve; that the marriage was solemnized and completed not according to South Dakota law, but according to Indian custom ... that the marriage in the first instance was valid and that the divorce was valid, but only within the confines of Indian land, and according to Indian custom." Because that holding was never appealed we cannot pass on its validity.

Several years later, in 1984, Karen filed suit in the circuit court for Brown County, seeking an award of child support from Norman. ¹ (She alleged that at the time Chanda was conceived, she, Karen, was an unmarried woman, as defined by South Dakota law and as interpreted by the circuit court's order in 1975.) After a hearing, in which Norman participated, the circuit court found him to be Chanda's father (which never was disputed) and required him to pay child support. The support required was from the time of the child's birth to the date of judgment, together with further future support until the child attained the age of eighteen. Norman did not appeal this judgment of the circuit court. Later, when he failed to make child support payments, the circuit court, after a hearing, found Norman in contempt and ordered that he be incarcerated in the county jail for sixty days.

On appeal, Norman raises as his sole issue that the circuit court erred in finding him in contempt because it lacked subject matter jurisdiction. ² He argues that the tribal court marriage and tribal court divorce decree must be recognized in the state circuit court on the basis of comity and, as a result, only the tribal court had jurisdiction to set child support payments.

It is settled law that tribal court orders should be recognized in state courts under the principle of comity. Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985). However, under SDCL 1-1-25, state courts may not recognize tribal court orders unless the party seeking recognition establishes by clear and convincing evidence that (1) the tribal court had jurisdiction over both the subject matter and the parties; (2) the order or judgment was not fraudulently obtained; (3) the order or judgment was obtained by a process that assures the requisite of an impartial administration of justice, including but not limited to due notice and a hearing; (4) the order or judgment complies with the laws of the jurisdiction in which it was obtained; and (5) the order or judgment does not contravene the public policy of the State of South Dakota. See also Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Here, Norman has made no showing that the tribal court divorce decree met the mandatory requisites for the application of the doctrine of comity set forth in SDCL 1-1-25. Therefore, we could hold that Norman has failed to meet his burden of showing lack of subject matter jurisdiction.

However, it is not necessary for us to delve into or address the state court/tribal court comity issues. The specific, precise issue raised by appellant is whether the state court had "subject matter" jurisdiction, and it is clear that it did.

The "subject matter" of this litigation is the child support obligation owed by Norman. Black's Law Dictionary 1278 (5th ed. 1979), defines "subject-matter" as

[t]he subject, or matter presented for consideration; the thing in dispute; the right which one party claims as against the other, as the right to divorce; ... [n]ature of cause of action, and of relief sought ...

Further, Black's, supra, defines "subject-matter jurisdiction" as referring to

[a] court's competence to hear and determine cases of the general class to which proceedings in question belong; the power to deal with the general subject involved in the action ... [and] deals with the court's competence to hear a particular category of cases.

See also Janssen v. Tusha, 68 S.D. 639, 5 N.W.2d 684 (1942); 21 C.J.S. Courts Secs. 28, 35 (1940).

As stated by Justice Henderson in State ex rel. Wieber v. Hennings, 311 N.W.2d 41, 42 (S.D.1981),

A minor has an inherent right to support from its natural parents; this right exists at common-law and is separate and distinct from any statutory obligation.

See also State ex rel. Stearns v. Blume, 333 N.W.2d 721 (S.D.1983); Johansen v. Johansen, 305 N.W.2d 383 (S.D.1981); State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (1965); Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27 (1946); Haakon County v. Staley, 60 S.D. 87, 243 N.W. 671 (1932); McCook County v. Kammoss, 7 S.D. 558, 64 N.W. 1123 (1895).

Here, it arguably would have been preferable for Karen to attempt to enforce the child support obligation in tribal court rather than pursuing a remedy in state court. However, Karen's action here is much the same as we previously approved in Johansen, supra, when we permitted a South Dakota circuit court to similarly modify and enforce the child support provisions in a divorce decree from Minnesota.

Since Norman has a common law obligation to support Chanda, irrespective of any statutory provisions, the trial court here had subject matter jurisdiction which it properly recognized and enforced.

AFFIRMED.

MORGAN, J., concurs.

WUEST, C.J., concurs specially.

HENDERSON and SABERS, JJ., dissent.

WUEST, Chief Justice (specially concurring).

With all due respect to the dissenting opinions, I believe comity is not the issue in this case. Norman is appealing the trial court's decision which held him in contempt of the judgment ordering him to make child support payments. He should have raised the comity issue in the paternity support proceeding which was decided in 1985. ^* In any event, the judgment was never appealed and the decision of the trial court became final.

During the recent contempt proceeding now on appeal, the jurisdiction issue was discussed as follows:

THE COURT: Right. But once he's in the court--actually, everything revolves around jurisdiction. I don't think they're really disputing anything except jurisdiction; isn't that right?

MR. MORGAN: Yes, jurisdiction is the question, yes.

THE COURT: Once this is resolved, if we don't have jurisdiction, everything is moot, anyway.

MR. GELLHAUS: My concern is that the original order which was entered back in--I don't have the date of the order, but the July 7th, '84 hearing where you originally made your order, I guess it's our position that the appeal time has run on that.

THE COURT: That's true, but they have a new one on contempt, and I suppose they could go back into the original--one thing on jurisdiction, if you don't have jurisdiction, you never had jurisdiction, no matter what has happened, if the Supreme Court takes that position. It's from an exception. In other words, I don't think--if I have jurisdiction, you will be right, but if I don't have jurisdiction and it's an issue, and they're complaining on this order, then it goes back to the original starting point and you have to have jurisdiction at the time you do it. That's something I don't think you can lose by default. We'll find out.

Stipulation on Order to Show Cause dated 5-14-87 at 4-5.

The issue before this court is whether the appellant can collaterally attack the 1985 support order, claiming lack of subject matter jurisdiction. The answer is no. As indicated in the majority opinion, the state has subject matter jurisdiction. The tribal courts probably have jurisdiction in this type of case in Indian country. Perhaps this court would have granted comity had the issue been presented to us. Speculating on hypothetical situations, however, has no relationship to the issue before this court, i.e., subject matter jurisdiction. Comity is a non-issue in this contempt proceeding.

HENDERSON, Justice (dissenting).

With, as Abraham Lincoln taught us, malice towards none and charity for all; with an abiding belief that our...