Filed 4/6/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 79
Samantha Schweitzer, Petitioner and Appellant
v.
Blake M. Miller, Respondent and Appellee
No. 20190157
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Barbara L. Whelan, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Lawrence D. DuBois, Cavalier, ND, and Shawn E. Shearer, Dallas, TX, for
petitioner and appellant; submitted on brief.
Lilie A. Schoenack, Jamestown, ND, for respondent and appellee; submitted
on brief.
Schweitzer v. Miller
No. 20190157
Crothers, Justice.
[¶1] Samantha Schweitzer appeals a district court order dismissing her
petition for a child custody order. The court concluded it lacked jurisdiction to
decide Schweitzer’s petition. We affirm.
I
[¶2] Schweitzer and Blake Miller have one child together, born in Wisconsin
in 2014. Schweitzer had primary custody of the child after the child’s birth. On
January 6, 2017, Schweitzer and the child moved from Wisconsin to North
Dakota. On January 13, 2017, Miller petitioned in Wisconsin for joint custody
and parenting time. After an August 2018 hearing, the parties stipulated they
would have joint custody of the child and Schweitzer would move to Madison,
Wisconsin. The Wisconsin court entered an order on the basis of the parties’
stipulation.
[¶3] In January 2019, Schweitzer petitioned for an emergency child custody
order and initial child custody determination or modification of child custody
determination in North Dakota. Miller moved to dismiss the petition, arguing
the district court did not have subject matter jurisdiction to decide Schweitzer’s
petition. Miller claimed the Wisconsin court had jurisdiction to decide custody
issues relating to the child.
[¶4] After a February 2019 hearing, the district court granted Miller’s motion
and dismissed Schweitzer’s petition. The court concluded North Dakota was
not the child’s home state after Miller initiated his custody petition in
Wisconsin in January 2017. The court concluded Wisconsin maintained
jurisdiction for custody decisions relating to the child.
II
[¶5] Schweitzer argues the district court erred in dismissing her petition for
lack of subject matter jurisdiction. She claims the court erred in concluding
Wisconsin was the child’s home state on January 13, 2017, when Miller
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petitioned for custody in Wisconsin. She argues Wisconsin is not the child’s
home state because she permanently moved to North Dakota before Miller filed
his petition.
[¶6] We review challenges to a district court’s subject matter jurisdiction de
novo when the jurisdictional facts are not in dispute. Schirado v. Foote, 2010
ND 136, ¶ 7,
785 N.W.2d 235. A party may raise the question of subject matter
jurisdiction at any time during the proceeding. State v. Winegar,
2017 ND 106,
¶ 6,
893 N.W.2d 741.
[¶7] We analyze cases involving interstate custody disputes under N.D.C.C.
ch. 14-14.1, the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). Winegar,
2017 ND 106, ¶ 9,
893 N.W.2d 741. 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). 1 “A period of temporary absence of any
of the mentioned persons is part of the period.” Id.
[¶8] Section 14-14.1-17, N.D.C.C., addresses simultaneous proceedings under
the UCCJEA. Except in an emergency under N.D.C.C. § 14-14.1-15, a court of
this state may not exercise its jurisdiction if a child custody proceeding has
been commenced in a court of another state having jurisdiction under the
UCCJEA, unless the proceeding has been terminated or is stayed by the other
state court because this state’s court is a more convenient forum. N.D.C.C. §
14-14.1-17(1). If a court in this state determines a child custody proceeding has
been commenced in a court in another state having UCCJEA jurisdiction, this
state’s court “shall stay its proceeding and communicate with the court of the
other state.” N.D.C.C. § 14-14.1-17(2). If the other state court “does not
1Wisconsin has also adopted the UCCJEA and its definition of “home state” is
nearly identical to N.D.C.C. § 14-14.1-01(6). See
Wis. Stat. § 822.02(7).
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determine that the court of this state is a more appropriate forum, the court of
this state shall dismiss the proceeding.” Id.
[¶9] Under N.D.C.C. § 14-14.1-15(1), a court of this state may exercise
temporary emergency jurisdiction if a child in this state “is subjected to or
threatened with mistreatment or abuse.” If a court in this state is requested to
exercise temporary emergency jurisdiction when a child custody proceeding
has already been commenced in another state, this state’s court must
communicate with the other court. N.D.C.C. § 14-14.1-15(4).
[¶10] Before the hearing on Schweitzer’s petition, the district court received a
letter dated February 5, 2019 from the Wisconsin court. The Wisconsin court
indicated the custody case between Schweitzer and Miller had been ongoing
since January 2017. The Wisconsin court stated it was contacting the district
court as required by the UCCJEA after it became aware of Schweitzer’s North
Dakota custody petition. See
Wis. Stat. § 822.24. The letter noted Schweitzer
recently filed a motion challenging the Wisconsin court’s subject matter
jurisdiction. The Wisconsin court stated it had “exclusive and continuing
jurisdiction over the custody and placement of [the parties’] child.” On
February 11, 2019, the Wisconsin court issued an order denying Schweitzer’s
motion to dismiss for lack of subject matter jurisdiction, concluding “[t]his
court retains exclusive and continuing jurisdiction over the custody and
placement issues in this action.”
[¶11] After a February 2019 hearing which included the Wisconsin court’s
appearance by telephone, the district court concluded it lacked jurisdiction to
decide Schweitzer’s custody petition for an initial custody determination. The
court found the child had not lived in North Dakota for six consecutive months
when Miller commenced his custody proceeding in Wisconsin on January 13,
2017. The court concluded North Dakota was not the child’s home state in
January 2017.
[¶12] The district court also concluded it lacked jurisdiction to decide
Schweitzer’s petition for an emergency custody order. The court stated
Schweitzer failed to prove in a prior case that Miller abused the child. The
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court also noted the parties’ Wisconsin stipulation and order stated the parties
agreed “[Schweitzer] did not meet her burden to prove her allegations of
abuse.”
[¶13] Under the definition of “home state” in N.D.C.C. § 14-14.1-01(6) and Wis.
Stat. § 822.02(7), Wisconsin was the child’s home state on January 13, 2017.
The child lived in Wisconsin with Schweitzer from birth until January 6, 2017,
a week before Miller filed his Wisconsin petition. Schweitzer asserts she
permanently moved to North Dakota on January 6, 2017; however, in response
to Miller’s petition she admitted that she had resided in Wisconsin for at least
six months before Miller filed his petition. The week in North Dakota before
Miller filed his petition is a temporary absence under the statute.
[¶14] The district court and the Wisconsin court communicated as required by
N.D.C.C. §§ 14-14.1-17(2) and 14-14.1-15(4). The Wisconsin court held that it
retained exclusive and continuing jurisdiction over the parties’ custody issues.
The Wisconsin court did not determine the North Dakota district court was a
more appropriate forum. Because Wisconsin is the child’s home state under the
UCCJEA, and the Wisconsin court did not determine North Dakota was a more
appropriate forum, the district court correctly dismissed Schweitzer’s custody
petition for a lack of jurisdiction.
III
[¶15] We have considered the parties’ remaining arguments and conclude
they are without merit or not necessary to our decision. The order is affirmed.
[¶16] Daniel J. Crothers
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Jon J. Jensen, C.J.
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