This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-940

In Re the Marriage of:

Karl Lustig, petitioner,

Appellant,

vs.

Susan Lustig,

Respondent.

Filed November 26, 1996

Affirmed in part and remanded in part

Toussaint, Chief Judge

Beltrami County District Court

File No. F896341

Susan Anderson McKay, 305 America Avenue, Post Office Box 1213, Bemidji, MN 56601 (for appellant)

Thomas L. D'Albani, James W. Haskell, Cann, Haskell, D'Albani, Schueppert, Hazelton & Rodgers, P.A., 205 Seventh Street Northwest, Post Office Box 978, Bemidji, MN 56619 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Thoreen, Judge.[*]

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

TOUSSAINT, Chief Judge

Appellant Karl A. Lustig challenges the district court's denial of his petition to dismiss the dissolution action brought by respondent Susan Lustig. Appellant asserts that the district court lacked personal jurisdiction and, thus, was precluded from hearing the dissolution petition involving child and spousal support, child custody, attorney fees, and marital property. Because we conclude that the district court had jurisdiction to hear the dissolution petition involving child support and custody, attorney fees, and marital property in Minnesota, we affirm. But, we remand for findings of whether the district court has jurisdiction to decide issues involving martial property outside of Minnesota and attorneys fees.

D E C I S I O N

Jurisdictional disputes are legal questions to be reviewed de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (citing Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 822 (Minn. 1977)). Mahoney v. Mahoney, 433 N.W.2d 115, 117 (Minn. App. 1988), review denied (Minn. Feb. 10, 1989).

Jurisdiction for child custody is determined by the Uniform Child Custody Jurisdiction Act (UCCJA). Both Minnesota and South Dakota have adopted the UCCJA. See Minn. Stat. SSSS 518A.01-.25 (1994); S.D. Codified Laws Ann. SSSS 26-5A-2-26 (1994). To avoid jurisdictional conflicts, the court must determine whether it has jurisdiction. Minnesota will exercise jurisdiction to decide child custody matters if

(a) this state * * * is the home state of the child * * *; or

(b) it is in the best interest of the child that a court of this state assume jurisdiction * * *; or

(c) the child is physically present in this state and * * *; or

(d) (1) it appears that no court in another state would have jurisdiction under * * * (a), (b), or (c), or a court of another state has declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child, and (2) it is in the best interest of the child that a court of this state assume jurisdiction.

Minn. Stat. § 518A.03, subd. 1 (1994).

"Home state means the state in which the child immediately preceding the time involved lived with the child's parents * * * for at least six consecutive months * * *."

Minn. Stat. § 518A.02(e) (1994).

During their marriage from 1983 to 1992, appellant and respondent lived in Minnesota. They then moved to South Dakota. Respondent moved back to their lake home in Minnesota in August of 1995 with two of their children, one of whom is a minor.

Appellant commenced a dissolution action in South Dakota approximately one or two weeks before respondent and children would have established residency in Minnesota. Respondent commenced a dissolution action in Minnesota one week after establishing residency. Appellant moved the Minnesota district court to dismiss the action for lack of personal jurisdiction followed by respondent's motion in the South Dakota district court to dismiss the action for forum nonconveniens. At the Minnesota motion hearing, appellant acknowledged that the Minnesota district court had in rem jurisdiction over the lake house, but disputed that the Minnesota district court had personal jurisdiction over him to decide questions regarding child custody and support, spousal maintenance, attorney fees, and marital property in South Dakota.

The Minnesota district court's May 2, 1996, order denied appellant's motion, holding that it had jurisdiction over both the property and the person because appellant had significant contacts in Minnesota. On that same day, South Dakota granted respondent's motion to dismiss, indicating that the South Dakota district court had conferred with the Minnesota district court and agreed that Minnesota was the appropriate jurisdiction.

Appellant argues that the Minnesota district court erred by claiming jurisdiction over child custody and support, spousal maintenance, attorney fees, and marital property in South Dakota.

In this case, South Dakota is the home state because the husband filed a dissolution action there approximately two weeks before the child lived in Minnesota for the required six months. The South Dakota district court, however, chose not to exercise jurisdiction. After the Minnesota and South Dakota district courts conferred, the South Dakota court agreed that Minnesota was the more appropriate forum.[1] See Minn. Stat. § 518A.07, subd. 5 (1994) (permitting a court to find (1) itself an inconvenient forum, and (2) that a court in another state is a better forum).

The best interests of the child analysis also supports Minnesota jurisdiction. The best interests of the child is premised upon (1) whether the child and at least one parent have significant connections to the state, and (2) whether the state has readily available evidence relating to the child's care, protection, training, and personnel relationships. Minn.Stat. § 518A.03, subd. 1(b) (1994); In Re the Marriage of Schmidt, 436 N.W.2d 99, 104 (Minn. 1989). In this case, the minor child and the mother reside in Minnesota and intend to reside here indefinitely. The child attended school in Minnesota for many years prior to leaving in 1992 and is once again in school here. The child has many friends and contacts in Minnesota.

While it would have been better for the Minnesota district court to acknowledge its conference with the South Dakota district court in its order, such an omission is not reversible error. Both the Minnesota and South Dakota courts conferred and both made findings to support Minnesota jurisdiction. Whether a court has jurisdiction over a defendant to decide issues regarding spousal maintenance and child support in both Minnesota and South Dakota is governed by the Uniform Interstate Family Support Act (UIFSA). Minn. Stat. SSSS 518C.101-.902 (1994); S.D. Codified Laws Ann. SSSS 25-9B-101-902 (1994). Neither the Minnesota nor the South Dakota district court addressed this issue. We remand for findings on this issue.

Two criteria must be satisfied for a Minnesota court to exercise personal jurisdiction over a nonresident defendant in an action determining the ownership of marital property located outside Minnesota and whether attorney fees will be awarded. First, the long-arm statute must be satisfied. Minn. Stat. § 543.19 (1994). Second, sufficient "minimum contacts" must exist between the defendant and Minnesota such that assertion of jurisdiction does not violate due process. Ulmer v. O'Malley, 307 N.W.2d 775, 777 (Minn. 1981); see also Rostad v. On-Deck, Inc., 372 N.W.2d 717, 719-20 (Minn. 1985) (analyzing five factors to determine constitutional basis for asserting jurisdiction), cert. denied, 474 U.S. 1006 (1985). The district court made some general findings on jurisdiction, but not under the required criteria noted above. We therefore remand for findings regarding whether the Minnesota district court has personal jurisdiction over appellant to decide issues involving marital property located outside Minnesota and attorney fees.

Finally, the husband acknowledges Minnesota has in rem jurisdiction to divide property and assets in Minnesota. Nothing in this opinion should be construed to alter the decision below on this issue.

Affirmed in part and remanded in part.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 The South Dakota district court order is part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (record on appeal consists of "papers filed in the trial court").