This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Christopher Ryan Behm, petitioner,



Katherine Ann Behm,


Filed January 13, 1998


Kalitowski, Judge

Traverse County District Court

File No. F79688

Tracey R. Lindberg, Lies, Bullis & Lindberg, First American Bank Building, 225 5th Street North, P.O. Box 151, Breckenridge, MN 56520 (for respondent)

Bonnie J. Askew, P.O. Box 227, Fargo, ND 58107-0227 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.



Appellant-mother Katherine Ann Behm contends the district court: (1) lacked jurisdiction over the dissolution and the custody determination; and (2) erred in granting sole physical custody of the parties' daughter to respondent-father. We affirm.


Appellant grew up in Wheaton, Minnesota, and attended college in Wahpeton, North Dakota, where she met respondent. The parties married and subsequently had a daughter in November of 1995. They have lived in both states at various times. While in Minnesota, appellant received an order for protection against respondent, who then petitioned the court for sole physical custody of the child. Appellant cross-petitioned for custody and also filed for dissolution. The district court dissolved the parties' marriage and awarded sole physical custody of the child to respondent.


A. Jurisdiction over the dissolution

"[A] finding of proper domicile to confer jurisdiction for commencement of a divorce action will not be reversed unless it is palpably contrary to the evidence." Davidner v. Davidner, 304 Minn. 491, 493, 232 N.W.2d 5, 7 (1975). "Domicile is a fact question." Berc v. Berc, 407 N.W.2d 131, 134 (Minn. App. 1987).

In order for a Minnesota court to properly grant a dissolution, one of the parties must be a resident or a domiciliary of the state for 180 days. Minn. Stat. § 518.07 (1996). "A divorce granted without complying with the statute is void for lack of jurisdiction." Wyman v. Wyman, 297 Minn. 465, 467, 212 N.W.2d 368, 369 (1973). Parties cannot waive lack of subject matter jurisdiction and cannot consent to a court acting without jurisdiction. Gummow v. Gummow, 356 N.W.2d 426, 428 (Minn. App. 1984).

"`Residence' means the place where a party has established a permanent home from which the party has no present intention of moving." Minn. Stat. § 518.003, subd. 2 (1996). An individual does not need to be physically present in the state for the entire 180-day period. Jones v. Jones, 402 N.W.2d 146, 149 (Minn. App. 1987).

"Domicile is the union of residence and intention, and residence without intention, or intention without residence, is of no avail." Davidner, 304 Minn. at 493, 232 N.W.2d at 7. Although the plaintiff in Davidner moved to Utah to attend school, he was still considered a domiciliary of Minnesota. Id. at 492, 232 N.W.2d at 6. The court in Davidner looked to whether he had the intention of making Utah his permanent home. Id. at 494, 232 N.W.2d at 7.

Because respondent was residing in North Dakota at the time the dissolution was commenced, we must determine if the district court erred in finding appellant was a resident or domiciliary of Minnesota for 180 days prior to filing the dissolution action on July 2, 1996. The district court stated:

The evidence supports the finding that [appellant] is a permanent resident of Minnesota who attends college in North Dakota. While she was not physically present in the state for 180 days immediately preceding the dissolution, the evidence shows that [appellant] intended to reside in Minnesota.

The district court concluded that although appellant lived in North Dakota intermittently to attend school and briefly while married, her permanent residence was in Minnesota.

Although parties cannot consent to jurisdiction, the district court noted that appellant chose to bring her petition in Minnesota and testified that she resided in Minnesota, but attended school in North Dakota. The district court's determination that appellant's stay in North Dakota was temporary, for the purpose of attending school, and with no intent of changing her domicile, is not palpably contrary to the evidence. We therefore conclude the district court did not err in determining Minnesota had proper subject matter jurisdiction over the parties' dissolution.

B. Jurisdiction to determine custody

"The determination of which court possesses primary jurisdiction to decide this custody dispute is controlled by the Uniform Child Custody Jurisdiction Act [UCCJA], Minn. Stat. §§ 518A.01-25." Landa v. Norris, 313 N.W.2d 423, 424 (Minn. 1981). Neither North Dakota nor Minnesota is the child's "home state" (as required by Minn. Stat. § 518A.03, subd. 1(a)) because she had not lived in either for six months. Beier v. Beier, 371 N.W.2d 52, 55 (Minn. App. 1985). If it is in the best interest of the child, and if the child and at least one contestant have a significant connection with Minnesota, the court has jurisdiction under Minn. Stat. § 518A.03, subd. 1(b)(1) (1996).

When determining if there is best interest jurisdiction, the court considers factors such as

whether the child and at least one parent reside or have resided in the state recently, whether the child and parent have or have recently had significant connections with the state so that the state's courts have readily available substantial evidence relative to the child's care, protection, training, family relationship and familial support.

In re Marriage of Schmidt, 436 N.W.2d 99, 104 (Minn. 1989). "Maximum state contacts, rather than minimum, are required to support `best interest' jurisdiction." Id. (footnote omitted).

The court in Beier found that when there was no "home state" the Minnesota court had best interest jurisdiction because it had sufficient contacts: the family had lived in Minnesota for the first four years of the child's life, the child attended school here briefly, and had extended family here. Beier, 371 N.W.2d at 56. The court found that because of these contacts, and the advantages of an expeditious decision, completion of the proceeding in Minnesota would serve the child's best interests. Id.

Here, the district court made the following findings regarding jurisdiction under the UCCJA:

[The child] was born in Minnesota and lived in Minnesota with her mother from March of 1996 until July of 1996, a period of four months. [Appellant] was born and raised in Minnesota and has resided in Minnesota her entire life except when she was away at college and for the time period she and [respondent] resided in North Dakota as a married couple (a period of about five months). Thus, both the child and her mother have a significant connection with this state. Moreover, because [the child] resided in Minnesota with her mother for four months of the first eight months of her life, because [appellant's] extended family members reside in Minnesota, and because the parental capacity evaluations were conducted by [a doctor] in Minnesota, there is substantial evidence in this state regarding [the child's] care, protection, training, and personal relationships. The Court notes that no custody proceeding was or has been commenced in North Dakota or any other state besides Minnesota. In sum, the Court has jurisdiction under the UCCJA to make a custody determination.

Again, we conclude the district court's findings are not palpably contrary to the evidence and, therefore, the district court had jurisdiction to determine custody of the child.


A trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). An appellate court will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id.

In applying the best interests analysis, we recognize much must be left to the discretion of the trial court. Some

statutory criteria will weigh more in one case and less in another and there is rarely an easy answer.

Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990).

Appellant contends the district court committed reversible error in its designation of the primary parent by failing to specify the time period it was considering in making its determination. We disagree. Because the evidence indicates there was not a significant difference in the relationship of the parents to the child before and after the separation, we conclude the specific time period considered did not affect the district court's determination.

Appellant argues the district court erred in ignoring the prior order for protection against respondent in making its custody determination. We disagree. It was within the district court's discretion, and supportable by the evidence, to find the claims of domestic abuse not credible, and thus, to have no effect on the child. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).

Appellant also contends the district court improperly relied on a report of the guardian ad litem that failed to address all the statutory factors. We disagree. Even if the guardian ad litem report did not contain all the requisite findings, we cannot say the district court abused its discretion by referring to and relying on the report.

Appellant also contends the district court erred in allowing the admission of photographs into evidence. Appellant, however, raised no objection at the time of admission to the lack of foundation for the automatic dating system. We conclude the district court acted within its discretion in admitting the dated photographs over appellant's objection that her copies were illegible when appellant did not deny that respondent had the child on the days indicated by the photos. See Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (holding that entitlement to new trial based on improper evidentiary rulings requires complaining party to show that error prejudiced complaining party).

Appellant's primary complaint is that the district court applied the statutory factors and concluded that sole physical custody should be awarded to respondent. Contrary to appellant's contention this conclusion was not based on a determination that appellant was unfit. The district court was required to make a difficult choice between two suitable parents based on the child's best interest. We conclude that in making this choice, the district court did not abuse its discretion, or improperly apply the law.