This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Byron H. Hines, petitioner,


Mary Lou Hines,


Filed December 28, 2004

Reversed and remanded

Peterson, Judge


Hennepin County District Court

File No. MF 266576



Michael D. Dittberner, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN  55435-5244 (for appellant)


Timothy T. Mulrooney, Alan C. Eidsness, Henson & Efron, P.A., 220 South Sixth Street, Suite 1800, Minneapolis, MN  55402-4503 (for respondent)


            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D     O P I N I O N


This appeal is from a district court order that affirms a referee’s order.  The district court:  (1) granted respondent’s motion to dismiss appellant’s request that Minnesota assume jurisdiction under the Uniform Interstate Family Support Act (UIFSA), Minn. Stat. §§ 518C.101-.902 (2002), to modify appellant’s child-support obligation; (2) ordered that Illinois shall remain the forum of jurisdiction until an Illinois court orders that Illinois is divested of jurisdiction; and (3) awarded respondent $3,200 in attorney fees.  Because the district court erred in concluding that Minnesota may not consider a request to assume jurisdiction for modifying appellant’s child-support obligation until Illinois divests itself of jurisdiction, we reverse the order dismissing appellant’s motion and remand to permit the district court to consider the motion.  We also reverse the attorney-fee award.



Appellant Byron H. Hines and respondent Mary Lou Hines dissolved their marriage pursuant to a marital settlement agreement on February 6, 1996, in Illinois.    The stipulated judgment requires appellant to pay 32% of his statutory net income for child support.  The judgment also provides that appellant’s child-support obligation will be adjusted annually based on increases or decreases in appellant’s income.  Illinois courts have increased appellant’s child-support obligation four times to reflect increased income. 

Both appellant and respondent and their three minor children moved to Minnesota in 1997.  Upon relocating, appellant brought a motion in the Illinois court seeking a transfer of jurisdiction over child support to Minnesota on forum non conveniens grounds.  The motion was denied. 

In July 2001, appellant brought a motion in the Hennepin County District Court requesting the court to exercise jurisdiction over child support on the basis that all parties reside in Minnesota.  The district court concluded that because two petitions regarding child support were pending in Illinois, it would be premature for Minnesota to exercise jurisdiction and, therefore, denied appellant’s motion.  Also in 2001, appellant moved to dismiss a pending child-support-modification proceeding in Illinois on forum non conveniens grounds.  The Illinois motion was denied. 

In 2003, appellant again brought a motion in Hennepin County District Court asking the court to assume jurisdiction for child-support modification under Minn. Stat.  § 518C.613(a) (2002) and order a modification of his child-support obligation.  Respondent moved to dismiss the proceeding.  After a hearing, a referee granted respondent’s motion to dismiss and ordered that “Illinois shall remain the forum of jurisdiction until there is an order of an Illinois Court divesting itself of jurisdiction.”  Appellant requested review by a district court judge.  The district court affirmed the referee’s findings of fact, conclusions of law, and order without change.  This appeal followed.



            The district court dismissed appellant’s motion asking the district court to assume jurisdiction for child-support modification under the UIFSA.  Neither the referee’s nor the district court’s order was accompanied by a memorandum, but it appears from the record that the district court found persuasive respondent’s arguments that the transfer of jurisdiction over this matter from Illinois to Minnesota had previously been raised and decided on two separate occasions by the Illinois court, and under Article IV, Section 1, of the United States Constitution, Minnesota courts must give full faith and credit to the final orders of the Illinois court.  This court reviews purely legal issues de novo.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984); Cf. Matson v. Matson, 310 N.W.2d 502, 506 (Minn. 1981) (reviewing foreign child-support judgment in light of full faith and credit requirement).

            The United States Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.”  U.S. Const. art. IV, § 1.  The general rule is “that a judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.”  Durfee v. Duke, 375 U.S. 106, 111, 84 S. Ct. 242, 245 (1963).  “[A] court need not accept the judgment of a foreign court if that court lacked the jurisdiction to render the judgment.  However, if that same foreign court already fully and fairly addressed the contention that it lacked jurisdiction, then its decision on that point must be given effect.”  United Bank of Skyline v. Fales, 405 N.W.2d 416, 417 (Minn. 1987).  “Full faith and credit . . . generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.”  Durfee, 375 U.S. at 109, 84 S. Ct. at 244.  

            Respondent argues that because the Illinois court has already fully and fairly considered whether it lacked jurisdiction and decided that it did not, Minnesota courts should not again consider whether Illinois lacked jurisdiction but should, instead, give effect to the Illinois court’s decision.  But the record does not support respondent’s assertion that the Illinois court fully and fairly considered whether it had jurisdiction over proceedings to modify appellant’s child-support obligation after both parties and all of their children left Illinois and moved to Minnesota.  The record indicates that appellant brought two motions on forum non conveniens grounds in the Illinois court to dismiss proceedings to modify child support and transfer the case to Hennepin County.  Both times, the Illinois court denied appellant’s motion and retained jurisdiction to modify child support.  The record does not indicate that on either occasion the court considered and decided the underlying question whether it had subject-matter jurisdiction over the parties’ child-support-modification proceedings. 

Subject-matter jurisdiction concerns a court’s “authority to hear and determine a particular class of actions,” and “authority to hear and determine the particular questions the court assumes to decide.”  Duenow v. Lindeman, 223 Minn. 505, 511, 27 N.W.2d 421, 425 (1947) (quotation omitted).  Litigating subject-matter jurisdiction is a direct challenge to the statutory basis for a court’s authority.  See Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104 (1982) (discussing constitutional and statutory roots of subject-matter jurisdiction).  Appellant did not challenge the Illinois court’s jurisdiction.  In fact, in asking the Illinois court to transfer jurisdiction under a forum non conveniens theory, appellant presumed that the Illinois court had jurisdiction.

Respondent contends that although appellant relied on forum non conveniens arguments in Illinois and now argues that Illinois lacks jurisdiction under Minn. Stat.       § 518C.613(a) (2002), the issue in both proceedings was whether Illinois had subject-matter jurisdiction.   Respondent argues that “to determine whether an issue has been fully and fairly litigated in a foreign court, this Court must look to the foreign court’s law on res judicata.”  Then, citing Peregrine Fin. Group, Inc. v. Martinez, 712 N.E.2d 861, 867 (Ill. App. Ct. 1999), respondent argues that under Illinois law, res judicata (and therefore full faith and credit) will bar relitigation not only of questions that a court has actually decided, but also those that could have been litigated.  Respondent concludes that because appellant could have challenged the Illinois court’s subject-matter jurisdiction during the proceedings in Illinois, but chose not to do so, res judicata bars appellant from litigating subject-matter jurisdiction in Illinois, and “full faith and credit, being of equal breadth to the doctrine of res judicata, is due [in a Minnesota court].”

Respondent’s argument fails to recognize, however, that under Illinois law, the doctrine of res judicata is not applicable when a judgment is void and void judgments are always subject to collateral attack for lack of jurisdiction.  Miller v. Balfour, 707 N.E.2d 759, 764 (Ill. App. Ct. 1999).  Therefore, even though appellant could have challenged the Illinois court’s subject-matter jurisdiction during the proceedings in Illinois, res judicata does not bar appellant from making that challenge now.  Also, this record lacks any indication that subject-matter jurisdiction was litigated at all in the Illinois court.

Because appellant did not challenge the Illinois court’s subject-matter jurisdiction during any proceeding in Illinois and the Illinois court did not consider and decide whether it had subject-matter jurisdiction, there is no Illinois subject-matter-jurisdiction determination to which the Minnesota court must give full faith and credit.  Therefore, the district court erred when it granted respondent’s motion to dismiss appellant’s motion requesting that Minnesota assume jurisdiction for modification of appellant’s child-support obligation, and we reverse the district court’s order and remand appellant’s motion for consideration by the district court.


Appellant argues that the district court abused its discretion by awarding attorney fees because there are not sufficient findings to support the award and there is not a legal basis for the award.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), rests within the district court’s discretion and will not be disturbed absent a clear abuse of that discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

In awarding fees, the district court must indicate to what extent the award is based on conduct or need and, if based on conduct, what conduct justified the award.  Geske v. Marcolina, 624 N.W.2d 813, 816, 819 (Minn. App. 2001); see also Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (remanding for findings on question whether fees were appropriate because of party’s repetition of contentions already resolved by the district court).  But we will not remand for findings if an order reasonably implies that the district court considered the relevant facts.  See, e.g., Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn. 1999).  Here, the district court found only that “the former wife is entitled to attorney fees for defense of this action.”  This finding does not identify any conduct that justifies the award, but when read in the context of the district court’s entire order, it appears that the district court concluded that the attorney-fee award was warranted because appellant repeatedly raised the issue of subject-matter jurisdiction after the Illinois court determined that it had subject-matter jurisdiction.  We, therefore, conclude that the district court’s findings are adequate.

But because the district court apparently awarded attorney fees because appellant repeatedly raised the issue of subject-matter jurisdiction, we conclude that there is not a legal basis for the award.  Under Minn. Stat. § 518.14, subd. 1, a court may award “additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  Conduct-based fees are appropriate when a party takes “duplicitous and disingenuous” positions that lengthen litigation and increase the cost of the proceedings.  See, e.g., Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999) (ordering conduct-based fees on appeal when appellant filed several motions and appeals to reopen a property award in a dissolution judgment when the lower courts had ruled on the merits several times); Orman v. Orman, 364 N.W.2d 836, 838 (Minn. App. 1985) (holding fees appropriate on appeal when issues were already decided below), review denied (Minn. May 31, 1985).  However, as we have already explained, appellant did not challenge the Illinois court’s subject-matter jurisdiction in a proceeding in Illinois, and the Illinois court did not determine that it had jurisdiction.  Also, when appellant previously asked a Minnesota court to assume jurisdiction, the district court determined that appellant’s motion was premature and declined to rule on the motion.  Therefore, making a second motion that asked a Minnesota court to assume jurisdiction was not conduct that unreasonably contributed to the length or expense of the proceedings, and the district court abused its discretion by awarding fees based on this conduct.  See Rask v. Rask, 445 N.W.2d 849, 855 (Minn. App. 1989) (questioning district court’s fee award when court’s basis was that appellant took a frivolous legal position when, in fact, appellant’s argument was not frivolous).  The attorney-fee award is reversed.

Reversed and remanded.