Instasi v. Hiebert , 2020 ND 180 ( 2020 )

Filed 8/27/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 180Alysha Instasi, Plaintiff and Appellant
v.
Jeremy W. Hiebert, Defendant and Appellee
No. 20200037
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Benjamen J. Johnson, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Deanna F. Longtin, Williston, ND, for plaintiff and appellant; submitted on
brief.
Jeremy W. Hiebert, defendant and appellee; no appearance.
Instasi v. Hiebert
No. 20200037
McEvers, Justice.
[¶1] Alysha Instasi appeals from a district court judgment dismissing her
motion to amend a Washington child custody judgment for lack of jurisdiction.
We affirm.
I
[¶2] Instasi and Jeremy Hiebert have two children. In December 2015, a
judgment was entered in Washington relating to residential responsibility,
parenting time, and child support.
[¶3] In July 2018, Instasi moved to amend the Washington judgment in North
Dakota district court. In an affidavit supporting the motion, Instasi stated
that she and the children have been living in North Dakota since October 2015.
[¶4] The district court entered a default judgment after Hiebert failed to
respond to Instasi’s motion. In June 2019, Hiebert moved to vacate the default
judgment, arguing the North Dakota court lacked jurisdiction to decide
Instasi’s motion to amend the Washington judgment. After a hearing, the
court vacated the default judgment and dismissed Instasi’s motion. The court
concluded it lacked jurisdiction to modify the initial child custody
determination made in Washington.
II
[¶5] Instasi argues the district court erred in dismissing her motion to amend
the Washington judgment for lack of jurisdiction. She claims the court should
have held an evidentiary hearing on the jurisdictional issue, and the court
should have communicated with the Washington court.
[¶6] This Court reviews challenges to a district court’s subject matter
jurisdiction de novo when the jurisdictional facts are not in dispute. Schweitzer
v. Miller, 2020 ND 79, ¶ 6, 941 N.W.2d 571. “A party may raise the question
of subject matter jurisdiction at any time during the proceeding.” Id.
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[¶7] Cases involving interstate custody disputes are decided under N.D.C.C.
ch. 14-14.1, the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). Schweitzer, 2020 ND 79, ¶ 7, 941 N.W.2d 571. Section 14-14.1-14,
N.D.C.C., allows a district court to modify another state’s child custody
determination:
Except as otherwise provided in section 14-14.1-15, a court of this
state may not modify a child custody determination made by a
court of another state unless a court of this state has jurisdiction
to make an initial determination under subdivision a or b of
subsection 1 of section 14-14.1-12 and:
1. The court of the other state determines it no longer has
exclusive, continuing jurisdiction under section 14-14.1-13 or that
a court of this state would be a more convenient forum under
section 14-14.1-18; or
2. A court of this state or a court of the other state determines that
the child, the child’s parents, and any person acting as a parent do
not presently reside in the other state.
See also N.D.C.C. § 14-14.1-01(10) (A “modification” is defined as “a child
custody determination that changes, replaces, supersedes, or is otherwise
made after a previous determination concerning the same child, whether or not
it is made by the court that made the previous determination.”).
[¶8] Under N.D.C.C. § 14-14.1-01(7), the “‘[i]nitial determination’ means the
first child custody determination concerning a particular child.” The state
having “jurisdiction to make an initial child custody determination” is the
child’s “home state.” N.D.C.C. § 14-14.1-12(1)(a). “‘Home state’ means the state
in which a child lived with a parent or a person acting as a parent for at least
six consecutive months immediately before the commencement of a child
custody proceeding.” N.D.C.C. § 14-14.1-01(6).
[¶9] Here, the findings of fact supporting the Washington judgment explicitly
state the court “has jurisdiction over the child[ren],” and “Washington is the
only home state of the children.” The Washington court made the initial
custody determination relating to the children. See N.D.C.C. § 14-14.1-01(7).
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Instasi’s motion to amend seeks to modify the Washington judgment under
N.D.C.C. § 14-14.1-14.
[¶10] In concluding it lacked jurisdiction to decide Instasi’s motion to amend,
the district court stated, “There has been no determination from a Washington
State court that Washington State no longer has exclusive, continuing
jurisdiction, nor has a court in Washington State determined that North
Dakota would be a more convenient forum.” The court concluded, “Under
N.D.C.C. § 14-14.1-14, this Court does not have jurisdiction to modify the
initial child custody determination made in Washington State.”
[¶11] We agree with the district court’s analysis. The court concluded it lacked
jurisdiction to modify the initial Washington judgment because the
requirements of N.D.C.C. § 14-14.1-14 were not satisfied. The Washington
court has not determined that it no longer has exclusive, continuing
jurisdiction or that North Dakota would be a more convenient forum, and
neither North Dakota nor Washington have determined that both parents and
the children reside outside of Washington.
[¶12] Instasi argues the district court should have communicated with the
Washington court regarding jurisdiction. Communication between courts is
allowed under N.D.C.C. § 14-14.1-09(1); however, the communication is
discretionary, not required.
[¶13] Under N.D.C.C. § 14-14.1-17, communication between courts is required
when there are simultaneous child custody proceedings in different states.
When Instasi filed her motion, a separate child custody proceeding was not
pending in Washington. Washington had already issued its initial child
custody determination. Therefore, no communication was required under
N.D.C.C. § 14-14.1-17.
[¶14] Under N.D.C.C. § 14-14.1-14(1), the Washington court has not
determined it no longer has exclusive, continuing jurisdiction or that the North
Dakota district court would be a more convenient forum. We conclude the court
did not err in ruling it lacked jurisdiction to decide Instasi’s motion to amend.
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III
[¶15] We have considered Instasi’s remaining arguments and conclude they
are either without merit or not necessary to our decision. The judgment is
affirmed.
[¶16] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle
Jon J. Jensen, C.J.
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