Kelly v. Kelly

20080103 Richard K. Kelly, Plaintiff and Appellant
v.
Karol Lee Kelly, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Sonna M. Anderson
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Bormann & Myerchin, LLP
Appellee: Severin, Ringsak & Morrow
Appellee: Lawyer not licensed in N.D.
Term: 10/2008   Argument: 10/01/2008  10:45am
ND cite: 2009 ND 20
NW cite: 759 N.W.2d 721

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Issues: Appellant's Statement of the Issues:
I. Whether the trial court erred in this divorce action when it ruled it lacked subject matter jurisdiction over the incidents of the parties Nevada marriage despite the non-Indian husband having lived in Bismarck for over fourteen (14) months before personally serving the Indian wife in Burleigh County and despite the fact that she then Answered and Counterclaimed without asserting any defense of lack of jurisdiction, subject matter or personal, or improper service.
II. Whether the trial court infringed on the non-Indian husband's constitutional right of equal protection by ruling that it lacked subject matter jurisdiction over the incidents of the parties Nevada marriage when the trial court undeniably had subject matter jurisdiction over Indian wife's Counterclaim.

Appellee's Statement of the Issues:
1. Does the District Court have subject matter jurisdiction to determine the incidents of marriage when an enrolled Indian child along with its enrolled mother reside on a Reservation and the father, a non-Indian, resides off the Reservation?

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Docket entries:
105/05/2008 NOTICE OF APPEAL: 05/02/2008
205/05/2008 ORDER FOR TRANSCRIPT: 05/02/2008
305/23/2008 Received Amended Notice of Appeal from trial court filed in trial court 5/21/08.
406/19/2008 TRANSCRIPTS DATED DECEMBER 19, 2007, AND FEBRUARY 26, 2008
506/23/2008 DISK - TRA of 12-19-07 & 02-26-08
606/26/2008 RECORD ON APPEAL and separate (entry no. 60). Not rec'd entry nos. 8 & 19 (CR notes).
708/01/2008 APPELLANT BRIEF
808/01/2008 APPELLANT APPENDIX
908/01/2008 DISK - atb (e-mailed)
1008/28/2008 APPELLEE BRIEF
1108/28/2008 DISK of AEB
1208/28/2008 MOTION to Supplement Record w/ June 23, 2008, Memorandum Opinion and Order Denying Defendant's. RspDue: 09/08/2008
1308/28/2008 Motion to Dismiss of the Standing Rock Sioux Tribal Court
1409/08/2008 Response to Motion to Supplement Record
1509/10/2008 ACTION BY SUPREME COURT (Motion to Supplement). Denied
1609/11/2008 REPLY BRIEF
1709/11/2008 DISK-RYB (ELECTRONIC)
1809/15/2008 APPELLEE APPENDUM
1909/26/2008 Updated Affidavit of Steven C. Emery for Admission Pro Hac Vice and Notice of Appearance
2010/01/2008 APPEARANCES: Paul H. Myerchin, Richard Kelly; Steven C. Emery, William C. Severin, Karol Kelly
2110/01/2008 ARGUED: Myerchin; Emery
2210/01/2008 ORAL ARGUMENT WEBCAST
2302/03/2009 DISPOSITION: REVERSED AND REMANDED
2402/03/2009 UNANIMOUS OPINION: Maring, Mary Muehlen
2502/03/2009 (CONCUR IN RESULT): Crothers, Daniel John: CON/RES
2602/03/2009 Costs on appeal taxed in favor of appellant
2702/04/2009 Order/Judgment E-Mailed and Mailed to Parties
2802/25/2009 MANDATE
2902/27/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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