FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 7, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 137
Brock James Baker, Plaintiff and Appellee
v.
LuAnn Erickson aka Thiel, Defendant and Appellant
No. 20210288
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
AFFIRMED IN PART AND REVERSED IN PART.
Opinion of the Court by Tufte, Justice.
Sharon T. Thompson, Fargo, N.D., for plaintiff and appellee.
L. Patrick O’Day (argued), Fargo, N.D., and Erin M. Conroy (appeared),
Bottineau, N.D., for defendant and appellant.
Baker v. Erickson
No. 20210288
Tufte, Justice.
[¶1] LuAnn Erickson appeals from a district court order granting her motion
to vacate its previous order recognizing a tribal court restraining order under
N.D.R.Ct. 7.2, but concluding that the tribal court restraining order is entitled
to full faith and credit under 18 U.S.C. § 2265. Erickson argues on appeal that
the court erred in granting full faith and credit to the tribal court order,
because the tribal court lacked personal and subject matter jurisdiction and
the tribal court failed to provide her reasonable notice and opportunity to be
heard. We affirm in part and reverse in part.
I
[¶2] Brock Baker, an enrolled member of the Turtle Mountain Band of
Chippewa Indians (the “Tribe”), and LuAnn Erickson, a non-member of the
Tribe, were divorced in 2016 and a judgment was entered in Cass County
district court. Erickson was granted primary custody of the couple’s three
minor children, who are also members of the Tribe. In 2020, Baker moved to
modify primary residential responsibility in Burleigh County district court. A
second amended judgment was entered, retaining primary residential
responsibility with Erickson.
[¶3] Erickson and the children resided in Bismarck. However, after Erickson
had an alcoholic relapse and became intoxicated while the children were in her
care, Baker retrieved the children from their residence on April 10, 2021.
Baker took the children to Belcourt, where they began residing with their
father. He filed a petition for protection relief in Turtle Mountain Tribal Court
on April 12. Baker provided the tribal court with Erickson’s Bismarck home
address in the petition. On April 15, Erickson sent an email to Baker informing
him that she was entering into an alcohol treatment program in Minnesota for
five weeks, beginning April 19. Erickson also asked Baker to temporarily
parent the children while she was in treatment. On April 20, the tribal court
entered a temporary ex parte protection order against Erickson. A hearing on
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the order was scheduled for May 6, and an affidavit of mailing reflects that the
tribal court mailed a copy of the order for telephonic hearing, notice of entry of
order, and the temporary ex parte protection order to Erickson’s Bismarck
address.
[¶4] On May 3, Baker’s attorney filed a notice of appearance with the tribal
court. Service was attempted via certified mail to Erickson’s Bismarck address
and also was sent to her email address. Baker’s attorney then emailed exhibits
to Erickson and the court on May 5, to which Erickson responded, “adding Pat
O’Day, my lawyer.” Erickson was not present at the hearing on the temporary
protection order held the following day. The tribal court entered a permanent
restraining order, prohibiting any contact between Erickson and her children
for one year, and granted custody to Baker for the duration of the order. The
clerk mailed a copy of the permanent protection order to Erickson’s Bismarck
address. On May 21, Erickson was discharged from the alcohol treatment
program. She returned to her Bismarck residence a day later.
[¶5] On May 18, Baker filed the permanent restraining order in Rolette
County district court as a foreign judgment. The court entered an order
granting the registration of the foreign judgment pursuant to N.D.R.Ct. 7.2.
Erickson timely filed a motion to vacate the order granting recognition of the
foreign judgment under Rule 60(b), arguing that the tribal court did not have
jurisdiction over her or her children and that she was never properly served
with the temporary or permanent restraining orders and its proceedings.
Following a hearing, the court vacated its prior Rule 7.2 order recognizing the
tribal court order, finding it “was improvidently granted, and was not
necessary to entitle such Order to recognition by courts of this State.” In
finding that the tribal court protection order was entitled to full faith and
credit under 18 U.S.C. § 2265, “separate and apart from Rule 7.2,” the court
made findings that the tribal court had jurisdiction over the matter and the
parties and Erickson was afforded reasonable notice and opportunity to be
heard. Although the court granted Erickson’s motion, she appeals the decision
“to prohibit the application of those inappropriate findings to subsequent
district court cases under the doctrine of collateral estoppel.”
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II
[¶6] Erickson filed a motion to vacate under Rule 60(b), arguing the district
court’s order affording the tribal court’s protection order full faith and credit is
void because the tribal court lacked personal and subject matter jurisdiction
over the parties. Rule 60(b)(4), N.D.R.Civ.P., states, “On motion and just terms,
the court may relieve a party or its legal representative from a final judgment,
order, or proceeding for the following reasons: the judgment is void.” When
analyzing a motion challenging a judgment as void under Rule 60(b)(4), “the
court’s sole task is to determine the validity of the judgment.” Oden v. Minot
Builders Supply, 2021 ND 30, ¶ 10,
955 N.W.2d 102. “If the judgment is valid,
the Rule 60(b)(4) motion must be denied, and if the judgment is void, the
motion must be granted as a matter of law.” Monster Heavy Haulers, LLC v.
Goliath Energy Servs. LLC,
2016 ND 176, ¶ 11,
883 N.W.2d 917. A judgment
entered without jurisdiction is void. McKenzie Cty. Soc. Serv. Bd. v. C.G.,
2001
ND 151, ¶ 10,
633 N.W.2d 157. “The standard of review for a motion to vacate
a judgment as void is plenary.” Oden,
2021 ND 30, ¶ 9.
[¶7] The Full Faith and Credit Clause of the United States Constitution
provides:
Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And
the Congress may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved, and the Effect
thereof.
U.S. Const. art. IV, § 1.
[¶8] In addition, 18 U.S.C. § 2265 requires North Dakota State courts to give
full faith and credit to a protection order issued by a foreign state or tribal
court. It provides:
(a) Full Faith and Credit.—Any protection order issued that is
consistent with subsection (b) of this section by the court of one
State, Indian tribe, or territory (the issuing State, Indian tribe, or
territory) shall be accorded full faith and credit by the court of
another State, Indian tribe, or territory (the enforcing State,
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Indian tribe, or territory) and enforced by the court and law
enforcement personnel of the other State, Indian tribal
government or Territory as if it were the order of the enforcing
State or tribe.
(b) Protection order.—A protection order issued by a State, tribal,
or territorial court is consistent with this subsection if—
(1) such court has jurisdiction over the parties and matter
under the law of such State, Indian tribe, or territory; and
(2) reasonable notice and opportunity to be heard is given to
the person against whom the order is sought sufficient to
protect that person’s right to due process. In the case of ex
parte orders, notice and opportunity to be heard must be
provided within the time required by State, tribal, or
territorial law, and in any event within a reasonable time
after the order is issued, sufficient to protect the
respondent’s due process rights.
[¶9] In order for the Rolette County district court to recognize and enforce the
tribal court protection order, the tribal court must have had both subject
matter and personal jurisdiction over the matter and the parties. See 18 U.S.C.
§ 2265(b)(1). The district court found both to be satisfied, but did not make
specific findings regarding each aspect of jurisdiction. Because the question of
personal jurisdiction is dispositive here, we consider that question first.
[¶10] We begin by recognizing that “a party must plead or present the foreign
law by providing the authority to be relied upon, or a party must request the
court take judicial notice of the foreign law.” Joyce v. Joyce,
2020 ND 75, ¶ 23,
941 N.W.2d 546. Without pleading or presenting the foreign law or requesting
the court take judicial notice of the foreign law, we presume the foreign law is
the same as the law of North Dakota. Id. at ¶ 22. Further, “once a party has
pleaded or presented the foreign law or asked the court to take judicial notice
of the foreign law, it is the court’s duty to inform itself of the foreign law.” Id.
at ¶ 24. Here, the parties presented the foreign law by providing portions of
the Turtle Mountain Tribal Code in their briefs to this Court. The parties also
do not dispute what the applicable tribal law is to determine whether the tribal
court had personal jurisdiction.
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[¶11] Erickson argues the district court erred in finding personal jurisdiction
to be satisfied, because she was not properly served with the tribal court
proceedings. “Valid service of process is necessary to assert personal
jurisdiction over a defendant.” Workforce Safety & Ins. v. Oden, 2020 ND 243,
¶ 8,
951 N.W.2d 187. “A party must strictly comply with the specific
requirements for service of process.” Sanderson v. Walsh Cty.,
2006 ND 83,
¶ 13,
712 N.W.2d 842. “Absent valid service of process, even actual knowledge
of the existence of a lawsuit is insufficient to effectuate personal jurisdiction
over a defendant.”
Id. “Without valid service of process, any judgment is void
because the court lacks personal jurisdiction.”
Id.
[¶12] “When determining the validity and effect of a foreign judgment based
on a lack of personal jurisdiction, courts look to the law of the state that
rendered the judgment.” Ware v. Ware,
404 S.C. 1, 12,
743 S.E.2d 817 (S.C.
2013). Here, the parties do not dispute the applicable law is section 37.0504 of
the Turtle Mountain Code, which governs the procedures for issuance of
temporary and permanent protection orders. It provides:
2. Within fourteen (14) days of the issuance of a Temporary Ex
Parte Protection Order, excluding holidays and weekends, a
hearing shall be held to determine whether the Order should
[be] extended for an additional period of time, made permanent
or modified in any respect.
3. Service must be made upon the Respondent at least five days
prior to the hearing. If service cannot be made, the Court may
set a new date.
4. Service shall be pursuant to the procedure set forth in the
Turtle Mountain Tribal Code.
Further, Tribal Code section 2.0405(1) sets forth the procedures to achieve
service:
A copy of the summons, together with a copy of the complaint as
required under Section 2.0402 may be served by certified mail,
return receipt requested, or may be served personally upon an
individual defendant. Service may be made by leaving a copy of the
summons and complaint at the defendant’s usual abode with a
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resident of the household above the age of fourteen (14) years, if
the defendant cannot be conveniently found.
[¶13] The record does not reflect that Erickson was properly served with the
tribal court proceedings under the Tribal Code. Regarding the temporary ex
parte order proceedings, the affidavit of mailing reflects that the tribal court
mailed a copy of the order for telephonic hearing, notice of entry of order, and
the temporary ex parte protection order to Erickson’s Bismarck address via
regular mail. Additionally, regarding the permanent protection order, an
affidavit of mailing reflects that this was sent to Erickson’s Bismarck address,
also using only regular mail. The clerk of the tribal court confirmed in an email
that the court relied on lack of returned mail as evidence of service. Mailing
the documents, without using certified mail or return receipt requested, was
insufficient under § 2.0405(1). See also State ex rel. Olson v. Harrison, 2001 ND
99, ¶ 13,
627 N.W.2d 153 (refusing to afford full faith and credit to a tribal court
judgment because the tribal court failed to properly serve the State of the tribal
court proceedings and therefore the tribal court failed to acquire personal
jurisdiction over the State). Although the tribal court was not provided with a
current address of the treatment program at which Erickson was residing
during the time of the proceedings, the tribal court could not lawfully proceed
with the proceedings unless Erickson was served “at least five days prior to the
hearing.” § 37.0504(3). Without proper service on Erickson, a hearing should
not have been held, and a permanent protection order should not have issued.
[¶14] Further, because the record demonstrates that Erickson was notified of
the protection order proceedings after a permanent protection order was
already entered, it follows that she was not afforded reasonable notice and
opportunity to be heard to satisfy
18 U.S.C. § 2265(b)(2). Although Erickson
responded to Baker’s attorney’s email attaching exhibits, this email was sent
to Erickson the day before the hearing. Further, the email did not contain any
information that would have informed Erickson a hearing would be conducted
the following day. We conclude this is insufficient to satisfy due process
requirements. See Starr v. George,
175 P.3d 50, 58–59 (Alaska 2008) (holding
that because the tribal court failed to provide the grandparents formal notice
or an opportunity to be heard in the tribal adoption proceedings, the tribal
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court’s judgment could not be afforded full faith and credit in state court). Thus,
because the tribal court lacked personal jurisdiction and Erickson was not
afforded reasonable notice and opportunity to be heard, 18 U.S.C. § 2265(b)(1)
was not satisfied. Therefore, the district court erred in according full faith and
credit to the tribal court restraining order.
III
[¶15] The district court order granting Erickson’s motion to vacate its previous
order recognizing a tribal court restraining order is affirmed; however, insofar
as the order grants full faith and credit to the tribal court restraining order, we
reverse.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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