State Ex Rel. Joseph v. Redwing

MILLER, Justice.

This is an appeal from a contempt order in a child support action claiming that the circuit court lacked subject matter jurisdiction by virtue of a prior tribal court divorce. We affirm.

Both parties to this appeal are Indian. Appellant Norman Redwing (Norman) is a member of the Sisseton-Wahpeton Sioux Tribe and currently resides on Indian land. According to the stipulation of facts, appel-lee Karen A. Joseph, formerly Karen A. Redwing (Karen), is a member of the Ft. Yates Sioux Tribe of North Dakota but resides in Aberdeen, South Dakota (not Indian country), with the couple’s daughter Chanda.

Norman and Karen lived in Aberdeen before, and during their marriage, but were married in the tribal court of the Sisseton-*50Wahpeton Sioux Tribe. Several months later, the tribal court entered a decree of divorce terminating the marriage. The divorce decree held that Norman was the father of the couple’s then unborn child (Chanda); that he must pay child support (although no amount was set); and, further, that he must pay Karen certain sums of money per month (although not clear on the face of the tribal court decree, evidence was presented in this action that the monthly payments were in reality a property settlement). Subsequently, in September 1975, Karen commenced a divorce action in the circuit court in Brown County, South Dakota, seeking a divorce, custody of Chanda, and an award of child support from Norman. Norman, who had since moved onto trust-deeded Indian land, responded by motion, arguing that the circuit court did not have jurisdiction since the divorce had previously been granted by the tribal court. The circuit court dismissed Karen’s complaint on the grounds that “there was no marriage to dissolve; that the marriage was solemnized and completed not according to South Dakota law, but according to Indian custom ... that the marriage in the first instance was valid and that the divorce was valid, but only within the confines of Indian land, and according to Indian custom.” Because that holding was never appealed we cannot pass on its validity.

Several years later, in 1984, Karen filed suit in the circuit court for Brown County, seeking an award of child support from Norman.1 (She alleged that at the time Chanda was conceived, she, Karen, was an unmarried woman, as defined by South Dakota law and as interpreted by the circuit court’s order in 1975.) After a hearing, in which Norman participated, the circuit court found him to be Chanda’s father (which never was disputed) and required him to pay child support. The support required was from the time of the child’s birth to the date of judgment, together with further future support until the child attained the age of eighteen. Norman did not appeal this judgment of the circuit court. Later, when he failed to make child support payments, the circuit court, after a hearing, found Norman in contempt and ordered that he be incarcerated in the county jail for sixty days.

On appeal, Norman raises as his sole issue that the circuit court erred in finding him in contempt because it lacked subject matter jurisdiction.2 He argues that the tribal court marriage and tribal court divorce decree must be recognized in the state circuit court on the basis of comity and, as a result, only the tribal court had jurisdiction to set child support payments.

It is settled law that tribal court orders should be recognized in state courts under the principle of comity. Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985). However, under SDCL 1-1-25, state courts may not recognize tribal court orders unless the party seeking recognition establishes by clear and convincing evidence that (1) the tribal court had jurisdiction over both the subject matter and the parties; (2) the order or judgment was not fraudulently obtained; (3) the order or judgment was obtained by a process that assures the requisite of an impartial administration of justice, including but not limited to due notice and a hearing; (4) the order or judgment complies with the laws of the jurisdiction in which it was obtained; and (5) the order or judgment does not contravene the public policy of the State of South Dakota. See also Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Here, Norman has made no showing that the tribal court divorce decree met the mandatory requisites for the application of the doctrine of comity set forth in SDCL 1-1-25. Therefore, we could hold that Norman has failed to meet his burden of showing lack of subject matter jurisdiction.

*51However, it is not necessary for us to delve into or address the state court/tribal court comity issues. The specific, precise issue raised by appellant is whether the state court had “subject matter” jurisdiction, and it is clear that it did.

The “subject matter” of this litigation is the child support obligation owed by Norman. Black’s Law Dictionary 1278 (5th ed. 1979), defines “subject-matter” as

[ t]he subject, or matter presented for consideration; the thing in dispute; the right which one party claims as against the other, as the right to divorce; ... [njature of cause of action, and of relief sought ...

Further, Black’s, supra, defines “subject-matter jurisdiction” as referring to

[ a] court’s competence to hear and determine cases of the general class to which proceedings in question belong; the power to deal with the general subject involved in the action ... [and] deals with the court’s competence to hear a particular category of cases.

See also Janssen v. Tusha, 68 S.D. 639, 5 N.W.2d 684 (1942); 21 C.J.S. Courts §§ 28, 35 (1940).

As stated by Justice Henderson in State ex rel. Wieber v. Hennings, 311 N.W.2d 41, 42 (S.D.1981),

A minor has an inherent right to support from its natural parents; this right exists at common-law and is separate and distinct from any statutory obligation.

See also State ex rel. Steams v. Blume, 333 N.W.2d 721 (S.D.1983); Johansen v. Johansen, 305 N.W.2d 383 (S.D.1981); State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (1965); Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27 (1946); Haakon County v. Staley, 60 S.D. 87, 243 N.W. 671 (1932); McCook County v. Kammoss, 7 S.D. 558, 64 N.W. 1123 (1895).

Here, it arguably would have been preferable for Karen to attempt to enforce the child support obligation in tribal court rather than pursuing a remedy in state court. However, Karen's action here is much the same as we previously approved in Johansen, supra, when we permitted a South Dakota circuit court to similarly modify and enforce the child support provisions in a divorce decree from Minnesota.

Since Norman has a common law obligation to support Chanda, irrespective of any statutory provisions, the trial court here had subject matter jurisdiction which it properly recognized and enforced.

AFFIRMED.

MORGAN, J., concurs. WUEST, C.J., concurs specially. HENDERSON and SABERS, JJ., dissent.

. We note that subsequent to the filing of the complaint there were significant amendments and revisions, substantive and procedural, of the patemity/child support statutes. S.D.Sess. L.1984, ch. 190.

. Presumably, Norman recognized that the circuit court had personal jurisdiction over him pursuant to SDCL 15-7-2(7).