may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Bruce Edward Campbell, petitioner,
Jo Lynne Campbell,
Filed June 3, 1997
Goodhue County District Court
File No. FX-89-3537
Suzanne Born, Union Plaza Suite 405, 333 Washington Avenue North, Minneapolis, MN 55401 (for Respondent)
Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Schultz,[*] Judge.
Appellant argues the district court lacks continuing jurisdiction over child support issues resulting from a dissolution decree because respondent and the parties' children reside in another jurisdiction, and appellant is an enrolled member of the Mdewakanton Dakota Tribe, residing on the tribal reservation. Because we find that the appellant waived his jurisdictional claim, we affirm.
In June 1990, the district court dissolved the marriage, granted physical custody of the minor children to respondent, and ordered appellant to pay $500 per month child support. Based on subsequent motions brought by respondent and appellant, respectively, the district court modified support payments in December 1991 and May 1992. Later in 1992, respondent and the children moved to Alabama.
In July 1996, respondent moved Goodhue County District Court to modify visitation and child support. Appellant responded with a motion for a change in custody, an appointment of a guardian ad litem, an accounting, a contempt order, and an award of attorney fees. In August 1996, the district court modified visitation, increased appellant's child support obligations to $1,500 per month, ordered appellant to establish automatic income withholding per Minn. Stat. § 518.613, denied appellant's motions, and refused to award attorney fees to either party. Neither party appealed from the August 1996 order, nor did appellant comply with the provisions of that order regarding child support and wage withholding.
On October 1, 1996, respondent moved the district court to find appellant in contempt and requested attorney fees. At the October 18, 1996, district court hearing, appellant moved the court to find it lacked continuing jurisdiction and requested that the case be venued before the Mdewakanton Dakota Tribal Court, arguing that tribal sovereignty was superior, that the tribe could not be sued without consent, and that the district court's order illegally required the tribal court to issue an order for child support. This appeal resulted from the district court's denial of appellant's motions.
A reviewing court is not bound by a district court's legal conclusions and will make its own determination on jurisdictional questions. Becker County Welfare Dep't v. Bellcourt, 453 N.W.2d 543, 544 (Minn. App. 1990), review denied (Minn. May 23, 1990). We find each of appellant's arguments to be without merit.
1. State jurisdiction over child support and maintenance obligations between Indians and non-Indians.
Appellant argues that Public Law 280, codified as amended at 18 U.S.C. § 1162 (1994), 25 U.S.C. §§ 1321-1324 (1994), and 28 U.S.C. § 1360 (1994), does not grant subject matter jurisdiction over tribal members who reside on a reservation. We cannot agree. Public Law 280 (28 U.S.C. § 1360(a) (1988)), provides that Minnesota state courts shall "have jurisdiction over civil causes of action between Indians or to which Indians are parties," except with regard to the Red Lake Reservation. Cohen v. Little Six, Inc., 543 N.W.2d 376, 381 (Minn. App. 1996), aff'd without opinion (Minn. Jan. 21, 1997); accord Gavle v. Little Six, Inc., 555 N.W.2d 284, 289 (Minn. 1996), pet. for cert. filed, 65 USLW (Jan. 29, 1997).
[C]ivil laws * * * of general application to private persons or private property shall have the same force and effect within * * * Indian country as they have elsewhere within the State * * *.
28 U.S.C.A. § 1360(a) (West Supp. 1997). Civil laws that are of general application include, among others, laws of marriage and divorce. Bryan v. Itasca County, Minnesota, 426 U.S. 373, 385 n.10, 96 S. Ct. 2102, 2108 n.10 (1976). Therefore, the district court has subject matter jurisdiction to resolve family law and child support matters between Indians and non-Indians.
2. Continuing subject matter jurisdiction when a party subject to a dissolution decree moves onto an Indian reservation.
We further conclude that appellant's move to the reservation after the 1990 dissolution did not deprive the Minnesota courts of jurisdiction. Appellant cites several cases to argue that a state court does not have subject matter jurisdiction when state law is preempted by tribal law, or when state court jurisdiction undermines or infringes on the rights of Indians to govern themselves. The cases cited by appellant, however, are distinguishable. Here, unlike the cited cases, appellant's cause of action did not arise on the reservation, the tribe has not made any jurisdictional claim, no associated petition or motion has been brought before the tribal court, and the Mdewakanton Dakota Tribe is not a party to appellant's action.
Of primary importance, we believe, is the fact that appellant voluntarily invoked the district court's jurisdiction by filing his 1989 dissolution petition, his motion for modification in May 1992, and his July 1996 motions in response to those of respondent. Appellant's July 1996 motions were heard on their merits and denied by the district court. Appellant did not appeal or seek other relief within the prescribed time period. The court's decisions on those motions become the law of the case and appellant has waived his jurisdictional claim. See Peterson v. Eishen, 512 N.W.2d 338, 340 (Minn. 1994) (holding that a party submits to jurisdiction by invoking the power of the court or by implicitly recognizing the court's jurisdiction). Desjarlait v. Desjarlait, 379 N.W.2d 139 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986), is also persuasive on the issue of jurisdiction:
When a member of [an Indian Band] voluntarily invokes state court jurisdiction by filing a dissolution petition in the state court and the tribal code relinquishes jurisdiction over domestic matters to the state courts, the state court has subject matter jurisdiction to resolve child custody issues.
Id. at 140. See also Anderson v. Beaulieu, 555 N.W.2d 537, 538 (Minn. App. 1996) (holding that "in an action to * * * enforce child support obligations, the state court does not lack subject matter jurisdiction, because the alleged father, [a tribal member,] retained employment on the reservation after the action commenced.").
3. Respondent's waiver of jurisdiction.
The legislature has given the [district] courts continuing jurisdiction over dissolution proceedings by allowing modifications in custody, visitation, and maintenance and support unless an enforceable waiver of the statutory right to seek modification of maintenance exists.
Loo v. Loo, 520 N.W.2d 740, 743 (Minn. 1994).
Appellant asserts that respondent waived district court jurisdiction by establishing a residence outside of Minnesota. We cannot agree, and note that appellant cites no authority for this proposition. Courts should not assume that parties have waived jurisdiction over dissolution proceedings "without a clear or express statement divesting the court of jurisdiction." Id. at 745. There is nothing in the record to indicate that respondent has expressly waived jurisdiction. Moreover, respondent's actions in seeking redress before the district court of Minnesota are wholly inconsistent with waiver. See Peterson, 512 N.W.2d at 340 (holding that a party submits to jurisdiction by invoking the power of the court).
4. Forum non conveniens.
Appellant argues that the tribal court is a more convenient forum. Appellant failed to raise this argument before the district court, and is precluded from raising it for the first time on appeal. A reviewing court must consider only those issues that the record shows were presented to and considered by the district court in deciding the matter before it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1982).
5. Income withholding payments.
Finally, appellant argues that the district court erred because it ordered the tribe to automatically withhold a portion of appellant's income for child support payments. This argument is without merit. The district court's order states that
[c]hild support payments shall be automatically withheld from [appellant's] income pursuant to Minn. Stat. § 518.613 by [appellant's] employer or other payor of funds, including the Prairie Island Mdewakanton Dakota Community, and forwarded to Goodhue County Social Services.
* * * *
[Appellant] shall be solely responsible for obtaining a valid Tribal Court Order for income withholding within 30 days of any child support order issued by the District Court.
The district court does not require the tribe to do anything and the court's order does not refer to tribal money. The district court order relates to income appellant receives, from whatever source, and is available for his use. The district court has personal jurisdiction over appellant and the court's order requires appellant to accomplish what he can by requesting tribal income withholding; nothing more. Appellant, however, having failed to take any action as required by court order, attempts an interpretation wholly inconsistent with the unambiguous language of the order. Appellant's argument must fail.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1The record indicates that the children have never resided on the reservation. Appellant appears to live on the reservation presently. However, the record does not reflect when he began to live there; apparently, it was sometime after 1992.
[ ]2Minnesota child custody and support laws are contained within the laws of marriage and divorce. See Minn. Stat. ch. 518 (1996).
[ ]3While the record does include what appears to be tribal procedures regarding child support, the material does not indicate whether the tribe asserts or relinquishes subject matter jurisdiction in domestic matters.
[ ]4See Iowa Mut. Life Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971 (1987) (involving an insurer's duty to defend when incident was subject to a case before the tribal court); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083 (1987) (tribe brought action against the State of California seeking declaratory and injunctive relief); Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269 (1959) (cause of action arising on Indian reservation); In re Prairie Island Dakota Sioux, 21 F.3d 302 (8th Cir. 1994) (suit against tribe for alleged violations of federal and state law); Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294 (8th Cir. 1994) (action brought by energy company to enjoin three tribes from assessing and collecting taxes on business activities conduct on the reservation), cert. denied, 513 U.S. 1103, 115 S. Ct. 779 (1995); Gavle, 555 N.W.2d at 286 (where tribal business entity is a party to suit and causes of action occurred both within and outside of Indian country); Cohen, 543 N.W.2d at 377 (party being sued is a tribal business corporation created and controlled by the tribe; dispute arose entirely within the Indian reservation); In re K.K.S., 508 N.W.2d 813, 815 (Minn. App. 1993) (tribal court asserted jurisdiction), review denied (Minn. Jan. 27, 1994); Desjarlait v. Desjarlait, 379 N.W.2d 139, 140 (Minn. App. 1985) (tribal court involved with parties as a result of criminal convictions in the tribal court; tribal code relinquishes jurisdiction over domestic matters to state courts), review denied (Minn. Jan. 31, 1986).
[ ]5While the trial court in Desjarlait determined that the Red Lake Band's tribal code relinquished jurisdiction over family matters to the state, such a determination is unnecessary here. There is no indication in the record that the Mdewakanton Dakota Tribe is asserting subject matter jurisdiction in this case or in domestic matters in general.