Bilger v. Bilger

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 5, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 144Leanne M. Hoff Bilger, Plaintiff and Appellee
v.
Joshua E. Bilger, Defendant and Appellant
No. 20210072
Appeal from the District Court of Traill County, East Central Judicial District,
the Honorable Frank L. Racek, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Lynn Slaathaug Moen, Mayville, ND, for plaintiff and appellee; submitted on
brief.
Kristin A. Overboe, Fargo, ND, for defendant and appellant; submitted on
brief.
Bilger v. Bilger
No. 20210072
Crothers, Justice.
[¶1] Joshua Bilger appeals from a district court order denying his motion to
dismiss and vacate a judgment for legal separation. Bilger argues the court
erred in finding the Servicemembers Civil Relief Act did not apply. We
conclude the Act applies; however, Bilger failed to invoke the protections of the
Act. We affirm.
I
[¶2] In July 2018, Leanne Hoff Bilger sued Joshua Bilger for legal separation.
Bilger executed an admission of service, acknowledging he received the
summons and complaint, settlement agreement and an exhibit relating to
division of property and debts. The parties executed the settlement agreement
which stated Bilger was a member of the armed forces. The district court issued
an order for judgment, and the clerk of court entered a judgment granting the
parties a legal separation.
[¶3] In February 2020, Hoff Bilger applied to hold Bilger in contempt,
claiming he failed to comply with certain provisions of the judgment. In
November 2020, Bilger moved to dismiss the action and vacate the judgment.
Bilger argued the district court did not have personal jurisdiction over the
parties because neither party resided in North Dakota when the judgment was
entered or within six months before commencement of the action or entry of
the judgment. At the December 2020 hearing on Bilger’s motion, Bilger’s
attorney also claimed the “[Servicemembers] Civil Relief Act does apply in this
case and . . . [Bilger] was not notified of his rights or whether or not that civil
act did apply.” The court denied Bilger’s motion, finding the parties voluntarily
submitted to the court’s jurisdiction, and the Servicemembers Civil Relief Act
did not apply.
II
[¶4] Bilger argues the district court erred by not receiving evidence at the
hearing on his motion to dismiss. He claimed the court relied on the parties’
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submissions filed before the hearing and arguments from counsel. Because no
evidence was received at the hearing, Bilger asserts the findings in the court’s
order denying his motion were based on inadmissible hearsay.
[¶5] Bilger did not object to the district court’s procedure at the hearing. He
did not offer additional evidence, nor did he request that the court hear
testimony or receive additional evidence. “It is well established that arguments
not raised before the district court cannot be raised for the first time on
appeal.” N.B. v. Terwilliger, 2021 ND 74, ¶ 20, 958 N.W.2d 487. We decline to
address Bilger’s argument.
III
[¶6] Bilger claims the district court erred in finding the Servicemembers Civil
Relief Act did not apply.
[¶7] At the hearing on Bilger’s motion, the district court made findings
relating to personal jurisdiction:
“The defendant admitted service of the summons and complaint on
July 18th, 2018. At that time, submitted a stipulation for the entry
of judgment, signed by both parties. Judgment by stipulation was
entered on July 18th by the Court.
“The evidence shows and there’s an affidavit from the
plaintiff that she’d been a resident of North Dakota for more than
six months, prior to commencement of the action. The evidence on
file with the Court in these motions show that the parties filed a
joint 2017 North Dakota tax return. Both parties had North
Dakota driver’s licenses at the time of the entry of judgment
herein, that they also filed taxes as North Dakota residents in the
year 2018.
“The Court had jurisdiction in this matter over both parties,
personal jurisdiction. The defendant submitted to the jurisdiction
of the Court [all the] indicia is that the parties were residents of
North Dakota. The defendant was in military service and
temporarily away from the state, but that there is no showing that
he was claiming residency in any other jurisdiction.
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“The motion is denied.”
In its order denying Bilger’s motion, the court made the following findings:
“The Court has both personal and subject matter jurisdiction
over this matter. The parties both voluntarily submitted to the
jurisdiction of the Traill County District Court. Both parties were
residents of North Dakota and were absent temporarily due to
military duty assignments. The Servicemembers and Sailors Civil
Relief Act does not apply.”
[¶8] On appeal, Bilger does not argue the district court lacked personal
jurisdiction over the parties. His arguments only relate to the application of
the Servicemembers Civil Relief Act.
[¶9] The Servicemembers Civil Relief Act “applies to each of the States,” and
“applies to any judicial or administrative proceeding commenced in any court
or agency in any jurisdiction subject to this chapter. This chapter does not
apply to criminal proceedings.” 50 U.S.C. §§ 3912(a) and (b). The purpose of
the Act is “to provide for the temporary suspension of judicial and
administrative proceedings and transactions that may adversely affect the
civil rights of servicemembers during their military service.” 50 U.S.C. §
3902(2).
[¶10] Bilger asserts Hoff Bilger failed to comply with section 3931 of the Act
because she did not submit an affidavit of military service when she filed the
action for legal separation. Section 3931(a), U.S.C., states, “This section applies
to any civil action or proceeding, including any child custody proceeding, in
which the defendant does not make an appearance.” 50 U.S.C. § 3931(a). Bilger
made an appearance because he admitted service of the documents initiating
the action and executed the parties’ settlement agreement. Therefore, 50
U.S.C. § 3931 does not apply.
[¶11] Because Bilger was a servicemember and had notice of the action, 50
U.S.C. § 3932, relating to a stay of proceedings when the servicemember has
notice, applies:
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“This section applies to any civil action or proceeding, including
any child custody proceeding, in which the plaintiff or defendant
at the time of filing an application under this section–
(1) is in military service or is within 90 days after termination of
or release from military service; and
(2) has received notice of the action or proceeding.”
U.S.C. § 3932(a).
Under 50 U.S.C. § 3932(b), a servicemember may apply to stay the action if the
requirements of military duty affects the servicemember’s ability to appear.
Bilger did not apply for a stay asserting his military duty affected his ability
to appear and defend the action. Therefore, he forfeited the available
protections of the Act. See State v. Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d
442 (“Forfeiture is the failure to timely assert a right, while waiver is the
intentional relinquishment of a right.”).
[¶12] Bilger voluntarily submitted to the jurisdiction of the district court. The
Servicemembers Civil Relief Act applies in this case; however, Bilger did not
invoke the protections of the Act by claiming his military duty affected his
ability to defend the action. Therefore, the court did not err in denying Bilger’s
motion to dismiss the action and vacate the judgment.
IV
[¶13] The order is affirmed.
[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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