author: STEELE, Circuit Judge. SABERS, Justice

text:
    2001 SD 69
    Craig R. HAYES, M.D., and Craig R. Hayes, M.D., P.C., Plaintiff and Appellant, v. NORTHERN HILLS GENERAL HOSPITAL; Charles Schulz, Hospital C.E.O.; Black Hills Medical Center, P.C.; Lupus Partnership; Northern Hills Medical Associates, Inc.; Ruth M. McLaughlin, M.D.; Ruth M. McLaughlin, M.D., P.C.; Randall P. Graff, M.D., Individually and in his Capacity as Director of Northern Hills General Hospital; Randall P. Graff, M.D., P.C.; Thomas J. Groeger, M.D.; Individually and in his Capacity as Director of Northern Hills General Hospital; Thomas J. Groeger, M.D., P.C.; Reuben B. Trinidad, M.D., Individually and in his Capacity as Director of Northern Hills General Hospital; and Reuben B. Trinidad, M.D., P.C.; and Scott K. Ross, M.D., Defendants and Appellees.
    Nos. 21490, 21516, 21522.
    Supreme Court of South Dakota.
    Argued Jan. 11, 2001.
    Decided May 30, 2001.

      Michael P. Reynolds of Quinn, Day <& Barker, Gregory A. Eiesland of Johnson, Eiesland, Huffman & Clayborne, Mike Abourezk of Abourezk Law Firm, Rapid City, SD, Attorneys for plaintiff and appellant.
    Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, SD, Attorneys for defendants Black Hills Medical Center and other physicians and appellees.
    Jeffrey G. Hurd of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, SD, Attorneys for defendant and appellee Northern Hills General Hospital.
   STEELE, Circuit Judge.

[¶ 1.] The trial court directed a verdict against Craig R. Hayes (Hayes) on his claim for intentional infliction of emotional distress. The jury found against Hayes on his claim for interference with business relations, but in his favor and against three individual physician defendants on his claim for breach of fiduciary duty, awarding $500 in compensatory damages and $3000 in punitive damages. Hayes appeals. We affirm.

FACTS

[¶ 2.] Hayes was one of several physicians who formed the Black Hills Medical Clinic (BHMC), a closely held corporation, in 1981. Affiliated with BMHC were two partnerships, Cams Lupus and Northern Hills Medical Associates, and another closely held corporation, Northern Hills Medical Associates, Inc. All entities involved the same shareholders and partners. The clinic practice was very lucrative, partially due to its contract to provide medical services to the employees, retirees, and dependants of Homestake Gold Mine. By 1992, Hayes’ relationship with the other shareholders of BHMC had deteriorated greatly. On July 2, 1992, pursuant to a shareholder agreement, the other shareholders voted to remove Hayes from BHMC.

[¶ 8.] After his termination from BHMC, Hayes asked Charles Schulz, the administrator of defendant Northern Hills General Hospital (NHGH) for space to set up a temporary clinic for lab and radiology services. Schulz told Hayes that NHGH would work with him on a trial basis. NHGH prepared two rooms, and Hayes began to practice there on July 6, 1992. On July 28, 1992, a written lease with a 60-day notice of termination provision was executed. Hayes’ clinic proved to be problematic for NHGH, mostly due to its location near the drug, alcohol, and mental health units, along with parking and telephone system problems. The lease was terminated on August 13,1992.

[¶ 4.] In November 1992, Hayes opened a clinic in Spearfish, but continued to see patients in Deadwood two days a week. After Hayes’ termination from BHMC, NHGH’s administrator drafted the emergency call schedule for NHGH, rotating call among physicians. In March 1993, due to an inability to comply with a 20-minute response time, Hayes reduced his staff privileges at NHGH from active to courtesy staff. In 1995, Hayes joined Queen City Medical Center. He also resumed his active staff privileges at NHGH.

[¶ 5.] This lawsuit was originally filed on August 4, 1993, setting forth sixteen counts on various legal and equitable theories. The trial judge bifurcated the legal and equitable issues, and awarded Hayes $102,765.95 for his interest in BHMC. The court then granted summary judgment in favor of defendants on all legal counts. On appeal, this Court reversed and remanded the counts of tortious interference with prospective business advantage, intentional infliction of emotional distress, and breach of fiduciary duty. Hayes v. Northern Hills General Hosp., 1999 SD 28, 590 N.W.2d 243, 248-250 (Hayes I ). On remand the trial court directed a verdict in favor of the defendants on the claim of intentional infliction of emotional distress. The jury found in favor of the defendants on the claim of interference with prospective business relations. The jury further found in favor of Hayes and against three individual physician defendants on the claim of breach of fiduciary duty, awarding $500 in compensatory damages and $3000 in punitive damages.

DECISION

[¶ 6.] Hayes raises eleven issues on appeal, which we consolidate to five.

ISSUE ONE

[¶ 7.] Whether the trial court properly directed a verdict on Hayes’ claim for intentional infliction of emotional distress.

[¶ 8.] If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse. U.S. v. State, 1999 SD 94, 598 N.W.2d 208. In an intentional infliction of emotional distress claim, the question whether the defendant’s conduct was extreme and outrageous is initially for the trial court. Richardson v. East River Elec. Power Coop., 531 N.W.2d 23 (S.D.1995).

[¶ 9.] Hayes asserts that the circumstances surrounding his termination from BHMC give rise to intentional infliction of emotional distress. At trial, Hayes’ testimony on this claim centered around alleged mistreatments, including being required to be on emergency call seven days a week for a period of time, mistreatment of his patients, and mail maliciously being stamped “Return to Sender” by the defendants.

[¶ 10.] In Hayes I, the trial court had dismissed this claim on a motion for summary judgment. We found issues of material fact that made summary judgment under SDCL 15-6-56 inappropriate and therefore remanded it back to the trial court. Hayes I, 1999 SD 28 at ¶ 44, 590 N.W.2d at 252. Hayes believes that a directed verdict on this claim was improper because there were disputed facts and the claim was remanded for jury trial. Even though similar, the legal standards for summary judgment and a directed verdict are sufficiently distinct so as to support different ruling. Kim v. Coppin State College, 662 F.2d 1055 (1981). A preclusion of summary judgment does not necessarily prevent a directed verdict once the evidence has been fully developed. Further, what is considered to be the facts at the summary judgment stage may not turn out to be the actual facts if the claim goes to trial. Cottrell v. Caldwell, 85 F.3d 1480 (1996). We review the trial court ruling on a motion for a directed verdict under the following standard:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

In re Estate of Holan, 2001 SD 6, ¶ 9, 621 N.W.2d 588, 590-91.

[¶ 11.] After reviewing the evidence, we find that reasonable minds could not differ on this issue. Hayes contends that the defendants mistreated his patients and that this mistreatment caused him emotional distress. The mistreatment was never directed at Hayes himself and the alleged mistreatment of patients was not done in Hayes’ presence. A plaintiff may not recover under an intentional infliction of emotional distress cause of action when the alleged conduct is directed at a third person, and the plaintiff was not present when the conduct occurred. Bradshaw v. Nicolay, 765 P.2d 630 (Colo.App.1988); Reid v. Pierce County, 136 Wash.2d 195, 961 P.2d 333 (1998); Restatement (Second) of Torts § 46, cmt 1.

[¶ 12.] Hayes also alleges that the manner in which his mail was handled by the defendants after his departure, the unfair emergency room policies intended to harass and intimidate him, and the discriminatory treatment of his patients constituted examples of extreme and outrageous conduct. Suffice it to say that upon a fair reading of the record, we agree with the conclusion of the trial court that at the close of the plaintiffs case, there was no substantial evidence to sustain the action. We affirm on this issue.

ISSUE TWO

[¶ 13.] Whether the trial court properly excluded evidence of the death of Rachel Kruse.

[¶ 14.] Hayes contends that evidence of the death of Rachel Kruse should have been admitted because it was relevant to claims for tortious interference, emotional distress, and punitive damages. Kruse was a patient of Hayes. He claims she died because the defendants allegedly refused Kruse family requests to contact Hayes concerning her treatment.

[¶ 15.] Evidentiary rulings are reviewed under an abuse of discretion standard, and the party claiming error must show prejudice from the record. Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986). This Court has held it is proper to exclude evidence that would open up mini trials, with the result that the trial would be extended considerably. Small v. McKennan Hosp., 437 N.W.2d 194 (S.D.1989). Here it appears that the issue of Kruse’s death was settled out of court in an unrelated malpractice action. The defendants denied any wrongdoing. Allowing the evidence of a death, the cause of which is contested, would have opened the door to evidence of a collateral matter. The probative value of such evidence would have been marginal at best. The trial court properly excluded such evidence.

ISSUE THREE

[¶ 16.] Whether the trial court properly excluded Dr. Maningas as an expert witness.

[¶ 17.] Dr. Maningas was retained as an expert witness in a medical malpractice case brought by the estate of

Rachel Kruse against NHGH, BHMC and others. The settlement agreement in the Kruse case provided that the Kruse family would withdraw its work product and ask Maningas to not testify in the Hayes case. Hayes argues that a party who hires an expert witness has no property rights in the expert or his opinions, and that an expert witness cannot be kept from testifying by the party who originally hired the expert. We need not address this argument for two reasons. First, Dr. Manin-gas would presumably have testified that Rachel Kruse died in some measure because the BHMC and NHGH refused to contact Hayes to learn about her prior course of treatment. This testimony would have been in direct contravention of the trial court’s order that evidence of the death of Rachel Kruse would be inadmissible. Secondly, Hayes represented at trial that Dr. Maningas was to testify as an expert on emergency room procedures. The trial court ruled that such testimony would be cumulative, and we agree. Michael Myers, the chair of the University of South Dakota Department of Health Services Administration and a professor at the School of Law, testified about emergency room procedure, operations, and medical conduct. Cumulative evidence is evidence of the same character as evidence previously produced and which supports the same point. Stormo v. Strong, 469 N.W.2d 816 (S.D.1991). The trial court has broad discretion concerning the admission of expert testimony and will not be reversed absent a clear showing of an abuse of discretion. Schaffer v. Edward D. Jones & Co., 1996 SD 94, 552 N.W.2d 801. Also, rulings on the admission of cumulative evidence are ordinarily within the sound discretion of the trial court, and its rulings thereon will not be disturbed unless it clearly appears that such discretion has been abused. Kramer v. Sioux Transit, Inc., 85 S.D. 232, 180 N.W.2d 468 (1970). We find no abuse of discretion.

ISSUE FOUR

[¶ 18.] Whether the trial court properly admitted evidence of Hayes’ net worth.

[¶ 19.] The trial court allowed evidence of Hayes’ net worth, which he contends prejudiced the jury. He also argues that his net worth has no relevance to any issue in the case.

[¶20.] Throughout the proceedings, Hayes made numerous references to his financial status. Hayes argued that he “suffered great financial stress as a result of defendants’ actions.... The stress, nervousness and anxiety with regard to the financial hit was dramatic, indeed.” Further, in reference to the emergency room call policy, Hayes said that he could not afford to hire extra call coverage. These instances alone justify the trial court’s ruling that Hayes’ net worth be allowed into evidence to rebut his claims of financial distress. A trial court’s evidentiary rulings are presumed correct and will not be reversed unless it is not justified by, and is clearly against reason and evidence. When relevant, the fact that a party’s financial status was introduced is not enough to warrant a finding of abuse of discretion. Jurgensen v. Smith, 2000 SD 73, 611 N.W.2d 439.

ISSUE FIVE

[¶ 21.] Whether the trial court erred in making certain comments to and in instructing the jury on Hayes’ termination.

[¶ 22.] Hayes claims that Drs. McLaughlin, Graff, Groeger, and Trinidad breached their fiduciary duties as shareholders and officers of BMHC and the related partnerships and closely held corporation. He asserts that the physician defendants engaged in certain improper conduct designed to squeeze him out as a shareholder, partner, and employee. The defendants counter that the corporate bylaws and partnership agreements provide that any employee or partner can be terminated without cause and that those provisions limit any fiduciary duty owed to Hayes. Their argument is that Hayes’ termination was by definition proper in all respects and cannot in and of itself constitute evidence of a breach of fiduciary duty.

[¶ 23.] In Hayes I, we held that the majority shareholders and partners did owe a fiduciary duty to Hayes, and that there were material questions of fact as to whether that duty had been breached. We listed as examples a secret meeting conducted by the defendants to devise a method of ridding themselves of Hayes and evidence that they interfered with Hayes’ attempt to relocate his practice. We then addressed Hayes’ claim of wrongful termination and stated, “As Hayes’ termination was completed according to the contract provisions and he could be terminated without cause, we find this argument to be without merit.” Hayes I, 1999 SD 28 at ¶ 64, 590 N.W.2d at 254.

[¶ 24.] Hayes asserts that on remand the trial court misconstrued our ruling and made comments to the jury and gave four different jury instructions advising the jury that because Hayes’ termination was in accordance with the contract provisions, the termination was proper, proper in all respects, or words of similar import. For instance, Instruction No. 15 read:

You are instructed the plaintiffs termination on July 2, 1992, as a shareholder and partner of Black Hills Medical Center, Northern Hills Medical Associates,
Canis Lupis, [sic] and Northern Hills Medical Associates, Inc. was completed according to the provisions of the contracts which plaintiff signed with his fellow shareholders and partners and was proper in all respects. Accordingly, you are instructed that defendants as the individual doctor defendants had the right by contract to terminate plaintiffs employment and status as a shareholder or partner.

The net effect of the comments and instructions of the trial judge was to advise the jury that it could not consider Hayes’ termination, in and of itself, as evidence of a breach of fiduciary duty.

[¶ 25.] Hayes’ argument on this issue is that the fiduciary duty owed by the physician defendants cannot be waived or limited by contractual agreement, and that if a termination is motivated by ill will or self dealing, it cannot be proper in all respects. He argues that his termination under the breach of fiduciary duty claim was not in fact proper and that the jury should not have been advised otherwise. By way of notice of review, the defendants invite us to address the question of whether the scope of the fiduciary duty owed by partners and shareholders to one another may be limited by contractual agreement.

[¶ 26.] The question of whether the scope of the fiduciary duty owed by majority partners, officers, and shareholders to a minority partner, employee, or shareholder can be limited by contract has not been addressed in South Dakota. There is a tension between the requirement that shareholders, officers, and partners exercise the utmost good faith and integrity in their dealings with ore another , and the right of the parties to bargain the scope of their relationships by contract.

[¶ 27.] A fiduciary duty is created by law to protect a minority shareholder, partner, or employee from the oppression of his or her interests by the majority, especially when the majority attempts to freeze out the minority by termination or by self dealing, such as payments to the majority of exorbitant salaries, bonuses, and the like. Courts have generally held that where there is a contractual agreement limiting the scope of the fiduciary duty, and where self dealing is evident, such agreements are invalid and that there must be a legitimate business purpose for any majority action. Wartski v. Bedford, 926 F.2d 11 (1st Cir.1991); Crosby v. Beam, 47 Ohio St.2d 105, 548 N.E.2d 217 (1989); Labovitz v. Dolan, 189 Ill.App.3d 403, 136 Ill.Dec. 780, 545 N.E.2d 304 (1989); Appletree Square I v. Investmark, Inc., 494 N.W.2d 889 (Minn 1993).

[¶ 28.] Some courts have held such contractual agreements valid in the limited context of alleged wrongful termination of a minority shareholder, partner, or employee, where the contract provides for termination without cause, there is a fair buyout provision for purchase of the minority interest, the issue involves the termination itself as opposed to self dealing conduct of the majority, and the litigants were original parties to the contractual agreement. Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975); Evangelista v. Holland, 27 Mass.App.Ct. 244, 537 N.E.2d 589 (1989); Jenkins v. Haworth, 572 F.Supp. 591 (1983); Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 649 N.E.2d 1102 (1995).

[¶ 29.] We decline to address the question of whether, and, if so, to what extent, the scope of a fiduciary duty can be limited by a contractual provision, because we conclude that the doctrine of the law of the case should control here. Under that doctrine, the decision of a question on a former appeal is the law of the case on a subsequent appeal in the same case. Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958); First W. Bank, Sturgis v. Livestock Yards, 466 N.W.2d 853 (S.D.1991); In re Estate of letter, 590 N.W.2d 254 (S.D.1999). That doctrine is binding on the trial court. Larsen v. Johnson, 47 S.D. 202, 197 N.W. 230 (1924).

[¶ 30.] We held in Hayes I that Hayes’ termination was completed according to the contract provisions, and that Hayes could be terminated without cause. Hayes I, 1999 SD 28 at ¶ 64, 590 N.W.2d at 254. This was a ruling of law in the first appeal and we will not address the same question in this appeal. The trial court was thus bound to advise the jury that it could not consider Hayes’ termination per se as evidence of wrongful conduct. The jury was properly instructed on the elements of the breach of fiduciary duty claim, and Hayes argued forcefully concerning all of the alleged wrongful conduct of the defendants leading to his termination. We note that the jury did find a breach of fiduciary duty and awarded both compensatory and punitive damages. The trial court did not err on this issue.

[¶ 31.] We have considered the other assertions of error raised by Hayes and find them to be without merit.

[¶ 32.] The judgment is affirmed.

[¶ 33.] MILLER, Chief Justice, and GILBERTSON, Justice, concur.

[¶ 34.] SABERS, Justice, and KONENKAMP, Justice, concur in part and dissent in part.

[¶ 35.] STEELE, Circuit Judge, for AMUNDSON, Justice, disqualified.

SABERS, Justice

(concurring in part & dissenting in part).

[¶ 36.] I concur with the majority opinion in every respect except for its treatment of issue 1. In determining if the directed verdict for the intentional infliction of emotional distress claim was appropriately granted, the majority opinion fails to utilize the proper standard of review and therefore, almost automatically, reaches the wrong result.

[¶ 37.] In Hayes I, we remanded summary judgment on this identical issue. In doing so, we stated:

Viewing the evidence in the light most favorable to Hayes, placing him on emergency call 24 hours a day seven days a week, mistreating his patients, manipulation of his mail, tampering with his patient charts and singling him out for review before the Clinical Monitoring Committee could be considered extreme or outrageous. We find Hayes did present sufficient evidence so reasonable minds could differ. Therefore, as to this issue, this is ultimately a factual question for the jury.

I agree with the majority opinion that overcoming a summary judgment is not identical to meeting a motion for a directed verdict. Yet, they are more similar than the majority opinion acknowledges. The majority opinion states that the trial court did not err in finding that reasonable minds could not have differed as to the evidence offered at the directed verdict stage. However, both the trial court and the majority opinion infect their reasoning by failing to appreciate the other aspects of the proper standard of review for a directed verdict. We have recently reiterated that standard:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate.

Estate of Holan, 2001 SD 6, ¶ 9, 621 N.W.2d 588, 590.

[¶ 38.] Instead of viewing the facts, as we similarly did in Hayes I, “in the light most favorable to Hayes” the majority opinion ignores the requirements that we: 1.) accept the evidence in the light most favorable to the nonmoving party; 2.) indulge all legitimate inferences; and 3.) determine whether substantial evidence exists to sustain the action. Nothing more than lip service is paid to these three requirements in the majority opinion. We should specifically reject the majority opinion’s analysis to the extent it defeats the proper standard of review. A view of the evidence in the proper light requires us to find, as we did in Hayes I, that “this is ultimately a factual question for the jury.”

[¶ 39.] As to the initial question whether the conduct was extreme and outrageous, I would remind the Court that intentional infliction of emotional distress also includes reckless conduct resulting in emotional distress. Petersen v. Sioux Valley Hospital Ass’n, 491 N.W.2d 467, 469 (S.D.1992). The facts in Hayes I, which we recognized “could be considered extreme or outrageous” to defeat summary judgment, were supported sufficiently and the question should have gone to a jury and not dealt with by directed verdict. I would also submit that the law of the case doctrine requires us to recognize that these facts, after support was offered for them-at trial, “could be considered extreme or outrageous.” See First Western Bank, Sturgis v. Livestock Yards. Co., 466 N.W.2d 853, 858 (S.D.1991) (stating that a question decided on a former appeal becomes the law of the case). As the majority opinion recognizes in dealing with a separate issue, “[t]hat doctrine is binding on the trial court.”

[¶ 40.] For these reasons, I respectfully dissent.

[¶ 41.] KONENKAMP, Justice, joins this special writing.

      . See Glanzer v. St. Joseph Indian School, 438 N.W.2d 204 (S.D.1989); Pear v. Grand Forks Motel Associates, 553 N.W.2d 774 (N.D.1996).

      . See Coleman v. Taub, 638 F.2d 628 (3rd Cir.1981); Jenkins v. Haworth, 572 F.Supp. 591 (1983); Wartski v. Bedford, 926 F.2d 11 (1st Cir.1991).


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2001 SD 68
    STATE of South Dakota, ex rel Cheryl L. LeCOMPTE, Plaintiff and Appellee, v. Kenton D. KECKLER, Defendant and Appellant.
    No. 21634.
    Supreme Court of South Dakota.
    Argued March 21, 2001.
    Decided May 30, 2001.

      Mark Barnett, Attorney General, David L. Braun, Special Assistant Attorney General, Child Support Enforcement, Pierre, SD, Attorneys for plaintiff and appellee.
    Joann M. Muir, Hot Springs, SD, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] We must decide if the circuit court properly exercised jurisdiction in this child support recovery action brought by the Office of Child Support Enforcement. Both the parents and the child are tribal members, and the tribal court had previously entered an order regarding custody and visitation. Accordingly, the tribal court had jurisdiction of the parties in its original action, but it entered only an oral order on child support. An oral support order is not enforceable outside reservation boundaries. It could not have been enforced in the obligor’s home state of New Mexico. Although we would grant comity to the tribal court order had it entered an enforceable written order, in this instance, the circuit court had concurrent jurisdiction, and it was the first court to enter an enforceable written order. We affirm the circuit court’s exercise of jurisdiction.

Background

[¶ 2.] Cheryl LeCompte and Kenton Keckler are enrolled members of the Cheyenne River Sioux Tribe. The two were never married but share a daughter, Jade Keckler, born on July 27, 1988. On June 9, 1989, the Cheyenne River Sioux Tribal Court entered an order providing for joint custody. LeCompte maintained Jade’s physical custody, and Keckler enjoyed unrestricted visitation. Soon after the child was born, LeCompte applied to the State for Temporary Assistance to Needy Families (TANF). Between August 1988 and November 1992, LeCompte received $5,200 in benefits. She and her daughter continued to reside on the reservation.

[¶ 3.] LeCompte petitioned for child support in the tribal court in June 1990. After a hearing in March 1991, that court entered a permanent custody order. In its findings of fact, the tribal court noted that Keckler was residing off the reservation in Spearfish, South Dakota. In addition, the court recognized that Keckler had “contributed towards the support of the child on his own initiative,” yet the court did not enter any written order requiring Keckler to pay child support. According to Keck-ler, however, the tribal court verbally ordered him to pay $100 child support per month. Keckler asserts that such oral pronouncements are a part of the Lakota tradition. He claims that he has paid child support through the tribal court since 1989. Tribal court records confirm that Keckler has consistently paid monthly support from March 1989 to June 2000.

[¶4.] LeCompte reapplied for TANF benefits in November 1999. From November 1999 through August 2000, she received payments totaling $2,154. As part of her application for benefits, Le-Compte agreed to assign to the State her legal right to collect child support. The State Department of Social Services — Office of Child Support Enforcement learned that Keckler was living in Santa Fe, New Mexico. The State also discovered that the tribal court had entered a written order on custody and visitation, but the order did not explicitly impose a support obligation. Consequently, the Office of Child Support Enforcement served Keck-ler with a Notice of Support Debt on May 30, 2000. Keckler did not seek a hearing within the ten-day statutory time-period provided in SDCL 25-7A-7. The State requested and obtained a support order from the circuit court in Dewey County on June 20, 2000. The court imposed a support obligation of $340 per month. In addition, the court granted the State Department of Social Services a judgment against Keckler for $2,720 plus interest for payments already made by the State. That same day Keckler informed the State that he had paid child support through the Cheyenne River Sioux Tribal Court since 1989. Later, the State agreed that Keck-ler should be credited for amounts previously paid through the tribal court system.

[¶ 5.] After the circuit court entered its order, Keckler moved for a declaratory judgment in tribal court. He requested that the tribal court declare that his support obligation had been ongoing since March 1991. While this appeal was pending, the tribal court entered its own written order for support. In its order, the tribal court found that it had jurisdiction over the parties and the action. The tribal support order followed the stipulation between the parties that Keckler’s obligation would be increased to $250 per month beginning on August 31, 2000, and in October of 2000, he would be required to pay an additional $80 per month. Moreover, the tribal court recognized that in 1991 it had entered a valid oral order for support. Counsel for the State was given notice of and was present at this hearing.

Analysis and Decision

[¶ 6.] Keckler urges us to hold that the tribal court had “exclusive and ongoing subject matter and personal jurisdiction over both the parties and the minor child” and that the circuit court erred in taking jurisdiction. To support this assertion, Keckler emphasizes that LeCompte and his daughter are enrolled members of the Cheyenne River Sioux Tribe and continue to be domiciled on the reservation. Likewise, Keckler is an enrolled member of the tribe but presently resides in Santa Pe, New Mexico. He concludes that prior action by the Cheyenne River Sioux Tribal Court creates exclusive tribal jurisdiction. A jurisdictional challenge presents a question of law; consequently, our review is de novo. Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993)(citing State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990), cert denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991)).

[¶ 7.] A tribal court commands exclusive subject matter jurisdiction in domestic relations disputes between two enrolled tribal members domiciled on the reservation. Harris v. Young, 473 N.W.2d 141, 144 (S.D.1991)(citing Fisher v. District Court of Sixteenth Jud. Dist., 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976))(further citations omitted). Keckler is not domiciled on the reservation, however. He presently lives in New Mexico. Furthermore, at the time of the initial custody hearing on which Keckler relies, the tribal court found that Keckler was “a resident of Spearfish, South Dakota which is outside the jurisdiction of [the tribal] court.” When tribal members reside outside the reservation, they are generally subject to “nondiscriminatory state law.” Wells v. Wells, 451 N.W.2d 402, 405 (S.D. 1990). Since Keckler was domiciled off the reservation, and LeCompte and Jade continued to reside on the reservation, the circuit and tribal court possessed concurrent jurisdiction in this child support action. See Harris, 473 N.W.2d at 145 (applying the reasoning of Wells to a child custody action). When a tribal court and circuit court possess concurrent jurisdiction, the case may be adjudicated by the first tribunal to validly exercise jurisdiction. Id.

[¶ 8.] To dispute Keckler’s assertion of exclusive jurisdiction, the State attempts to characterize this as a dispute between “the State of South Dakota, a non-reservation entity” and a tribal member “who has chosen to reside off the reservation for ... nine years.” The State relies on SDCL 25-7A-3 for its position. This statute makes the Department of Social Services a “party in interest” and grants it the power to prosecute support actions on “behalf of the child.” But this statute is not jurisdictional; it simply grants the Department the power to proceed in a court of proper jurisdiction to “prosecute or maintain [a] support action.” See SDCL 25-7A-3. Thus, the State’s statutory authority is irrelevant to our decision on subject matter jurisdiction.

[¶ 9.] Because of our conclusion that the tribal and circuit court had concurrent jurisdiction over the subject matter, we next consider whether the custody order of the tribal court was also a prior adjudication of Keckler’s support obligation. See Leon v. Numkena, 142 Ariz. 307, 689 P.2d 566, 569 (Ct.App.1984). We apply the principle of comity. See Wells, 451 N.W.2d at 403; Gesinger v. Gesinger, 531 N.W.2d 17, 19-20 (S.D.1995); see also Leon, 689 P.2d at 569-70. Comity involves the recognition of “legislative, executive, or judicial acts of another nation....” Gesinger, 531 N.W.2d at 19 (citations omitted). Comity is a question examined de novo. Id.

[¶ 10.] In South Dakota, a tribal court order must satisfy certain statutory prerequisites to be granted comity in circuit court. See SDCL 1-1-25. The particular question here is whether the “oral” tribal court order for support can be recognized even though it was not reduced to writing. Keckler asserts that in 1991 the tribal court orally required him to pay $100 per month child support through the tribal court system. However, the findings of fact and conclusions of law entered by the tribal judge simply stated that Keckler had “contributed towards the support of his child on his own initiative.” SDCL 1-1-25 provides for recognition of a tribal court “order or judgment.” (Emphasis added). An order must be reduced to writing before it takes legal effect. See SDCL 15-6-58; Moore v. Michelin Tire Co., Inc., 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (citations omitted); State v. Lowther, 434 N.W.2d 747, 752 (S.D.1989). As the original order was not reduced to writing, it could not be enforced outside the reservation. This case, however, presents an additional development that the circuit court could not have known in advance.

[¶ 11.] After the circuit court entered its support order, Keckler sought a declaratory judgment in tribal court. Counsel for Keckler stated at oral argument in this appeal that the purpose for seeking the declaratory judgment was to reduce the verbal support order to writing. The tribal court granted Keckler’s request and explicitly recognized that in 1991 an “oral order” was made, requiring $100 per month payments. The court also reduced a new stipulated support agreement to writing. We are left to determine the effect of this subsequent tribal court order.

[¶ 12.] Had the tribal court declared that the 1991 written order was intended to encompass custody and support, thereby clarifying the prior order, granting comity might be appropriate. State courts generally possess “inherent power to coiTect their records to reflect accurately the judgment of the court, whether the correction is necessitated by clerical errors or inadvertence.” Coffey v. South Dakota Bd. of Pardons and Paroles, 1999 SD 164, ¶ 9, 604 N.W.2d 238, 240 (citing Wolff v. Weber, 1997 SD 52, ¶ 8, 563 N.W.2d 136, 138). It seems only reasonable to suppose that tribal courts possess the same inherent power. However, the tribal court’s subsequent action here cannot be characterized as a correction of its record. The tribal court simply recognized that “the Honorable Judge James Chasing Hawk, ... in 1991, did make an oral order.” Oral orders have no legal effect beyond the reservation. SDCL 15-6-58; Moore, 1999 SD 152, ¶ 46, 603 N.W.2d at 525 (citations omitted). Such an order could not have been enforced in New Mexico. Between 1991 and October 2000, no enforceable tribal support order was in place; therefore, the circuit court validly exercised its concurrent jurisdiction.

[¶ 13.] Affirmed.

[¶ 14.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . See SDCL 25-7A-5(3); SDCL 25-7A-7.

      . The circuit court order contained no reference to TANF payments made by the State from August 1988 through November 1992. Therefore, benefits paid during that period have no bearing on this appeal.

      . SDCL 25-7A-3 provides:
      The department of social services is a party in interest and is subrogated to the right of any dependent child or spouse to prosecute or maintain any support action or execute any administrative remedy existing under the law of this state to obtain reimbursement of public money expended for or on behalf of the child. If a court order, administrative order or final decree of divorce enters judgment for an amount of support to be paid by a parent or other responsible person, the department is subrogated to the debt created by such order, and any money judgment shall be in favor of the department.

      . The State also cites precedent from other jurisdictions to bolster its claim that state court jurisdiction is proper. See e.g. Becker County Welfare Dept. v. Bellcourt, 453 N.W.2d 543 (Minn.Ct.App.1990); County of Inyo v. Jeff, 227 Cal.App.3d 487, 277 Cal.Rptr. 841 (1991); Jackson County Child Support Enforcement Agency v. Swayney, 319 N.C. 52, 352 S.E.2d 413 (1987); State Dept. of Human Services v. Jojola, 99 N.M. 500, 660 P.2d 590 (N.M.1983). In two of these cases there was no tribal forum available. Bellcourt, 453 N.W.2d at 544; Jeff, 277 Cal.Rptr. at 843 n4. Furthermore, the Swayney court at least implicitly recognized the existence of concurrent jurisdiction in this type of action. See Swayney, 352 S.E.2d at 418. Consequently, these cases have little bearing on our decision as we conclude that concurrent jurisdiction exists.

      . See also Gesinger, 531 N.W.2d at 19; Red Fox, 494 N.W.2d at 641.

      . Rule 58 of the Cheyenne River Rules of Civil Procedure evinces a similar requirement;

        (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).
      There is some dispute whether this provision of the Cheyenne River Rules was effective in 1991. It was clearly effective at the time of the declaratory judgment action.

      . It should be mentioned that the Support Order issued in October 2000 was not included in the record of action transferred to this Court. It is, however, included in Keckler’s reply brief. While we generally refuse to consider facts outside the record, it is appropriate to take judicial notice of this subsequent tribal court proceeding as it directly relates to the matters at issue and involves the same parties. See Vento v. Colorado Nat. Bank, 985 P.2d 48, 52 (Colo.Ct.App.1999)("[C]ourts generally do not judicially notice records and facts in proceedings from other courts. However, one exception to this general rule is that a court may take judicial notice of the contents of court records in a related proceeding.”) Id. (Citations omitted). See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (citations omitted).


author: GILBERTSON, Justice. SABERS, Justice

text:
    2001 SD 66
    STATE of South Dakota, Plaintiff and Appellee, v. Criss Scott DUFAULT, Defendant and Appellant.
    No. 21712.
    Supreme Court of South Dakota.
    Considered on Briefs on April 24, 2001.
    Decided May 30, 2001.
    Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Jamie L. Damon, Pierre, SD, Attorney for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] Criss Scott DuFault, who pled guilty to second offense driving under the influence of alcohol, a violation of SDCL 32-23-1, claims the trial court exceeded its authority in revoking his driver’s license for fifteen years. We affirm.

FACTS AND PROCEDURE

[¶ 2.] DuFault, age 47, was arrested for DUI on July 28, 2000 at approximately 5:30 p.m. after a citizen called the Hand County sheriffs office to report a car that was “all over the road” near Miller, South Dakota. He failed field sobriety tests and admitted to having had three drinks within an hour. He provided a blood sample which later analysis revealed a blood alcohol content of .311 percent. This is three times over the “legal limit.”

[¶ 3.] DuFault appeared before the trial court on October 23, 2000 and pled guilty to DUI second offense, a class 1 misdemeanor. SDCL 32-23-1. The trial court advised him a violation of this statute carried a maximum punishment of one year in jail, $1,000 fine, payment of court and prosecution costs, and restitution. The court found a factual basis existed for accepting the plea and that DuFault understood his constitutional rights and the maximum possible punishment.

[¶ 4.] The State advised the court that DuFault had eight DUI arrests since 1988, however only one fell within the five-year statutory period provided by SDCL 32-23-4.1, permitting this offense to be charged as a second offense DUI. A partial record of his DUI history follows:

6/88 — 60 days suspended sentence and fine
11/88 — 60 days in the state penitentiary
7/90 — 120 days in county jail
5/95 — dismissed by prosecutor
11/95 — serve 15 days of suspended one-year sentence, fine, and loss of driver’s license for one year

[¶ 5.] The Department of Motor Vehicles records also indicated his driver’s license had been revoked for 25 years in 1990, but in February 2000, the Depart.ment received an order from a judge reinstating it. Five months later, in July 2000, DuFault was arrested for driving under the influence, the event underlying this appeal. When asked, DuFault told the trial court he could not explain his history of drinking and driving.

[¶ 6.] Immediately prior to sentencing, DuFault quit his job as a journeyman plumber in Pierre, completed substance abuse treatment and was seeking an aftercare program. He had completed similar programs twice before. He had no explanation when the court asked him why he believed treatment would work this time. The court indicated its concern for the safety of the public and protecting them from DuFault’s drinking and driving and stated, “Mr. DuFault, for a record like yours it’s just dangerous to have you on the streets. You’re going to kill somebody.” The court then sentenced DuFault to a year in jail and revoked his driver’s license for 15 years. DuFault appeals the revocation period.

ANALYSIS AND DECISION

[¶ 7.] DuFault claims any revocation period greater than one year exceeds the trial court’s authority under SDCL 32-23-3. He did not raise this issue before the trial court. Failure to do so results in a waiver of the issue before this Court. “To preserve issues for appellate review litigants must make known to trial courts the actions they seek to achieve or object to the actions of the court, giving their reasons.” State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443; SDCL 23A-44-13. Issues not advanced at trial cannot ordinarily be raised for the first time on appeal. State v. Hen-jum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763 (citations omitted).

[¶ 8.] If error is to be found in this 15 year revocation, it can only be by plain error. Where error has not been preserved by objection or otherwise, our inquiry is limited to whether the court committed plain error. State v. Satter, 1996 SD 9, ¶ 11, 543 N.W.2d 249, 251. Under the plain error rule, DuFault bears the burden of proving prejudicial error, and we will invoke the rule only “in exceptional circumstances,” such as, where a miscarriage of justice has occurred because the defendant is innocent or because the error “may seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Nelson, 1998 SD 124 at ¶ 8, 587 N.W.2d at 443. For the following reasons, DuFault fails to justify the application of plain error in this case.

[¶ 9.] We note that SDCL 32-23-3 does provide authority to revoke Du-Fault’s driver’s license for 15 years:

If conviction for a violation of § 32-23-1 is for a second offense, such person is guilty of a Class 1 misdemeanor, and the court shall, in pronouncing sentence, unconditionally revoke the defendant’s driving privilege for a period of not less than one year. However, upon the successful completion of a court-approved alcohol treatment program, the court may permit the person to drive for the purpose of employment and may restrict the privilege by the imposition of such conditions as the court sees fit. If such person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than three days, which sentence may not be suspended.

(emphasis added). Clearly, the trial court had no statutory authority to revoke Du-Fault’s driver’s license for any length of time less than one year. By the plain language of the statute, it logically follows that the trial court had the statutory authority and mandate to revoke his driver’s license for a period of one year or greater. The trial court did so. There is no statutory “cap” on the court’s discretion in fashioning an appropriate revocation period under this statute.

[¶ 10.] In State v. Groethe, 439 N.W.2d 554 (S.D.1989), we modified a sentence that revoked the defendant’s driver’s license for the remainder of his life, citing SDCL 23A-32-19 as authority to do so. We had previously adopted an abuse of discretion test to review lifetime revocations of driving privileges, which we reaffirmed in Groethe. Id. at 557 (citing State v. Myers, 411 N.W.2d 402 (S.D.1987)). The present case involves neither a lifetime revocation and nor a claim by Du-Fault of abuse of discretion.

[¶ 11.] A review of the circumstances of this case shows DuFault’s continued disregard for the law, two previous substance abuse treatments, prior incarcerations in jail and the penitentiary, and the court’s expressed concern for public safety. As the State notes in its brief, nothing thus far has captured DuFault’s attention. No error, plain or otherwise, has been shown on this record. We affirm.

[¶ 12.] MILLER, Chief Justice, AMUNDSON, and KONENKAMP, Justices, concur.

[¶ 13.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 14.] I agree in part but I would modify the 15 year driver’s license revocation to add: “... or until the further order of the circuit court upon adequate proof of alcohol rehabilitation.”

[¶ 15.] I believe this modification provides some positive incentive to try to rehabilitate an otherwise hopeless case. In addition, it makes clear that the circuit court has the power to reinstate the driver’s license even after the expiration of one year. SDCL 32-23-3. See also State v. Groethe, 439 N.W.2d 554, 557 (S.D.1989). In Groethe, we modified a revocation “for the rest of his life” to include this language. It is important to note that we did this on our own motion without hiding behind the “plain error” rationale. Id.

[¶ 16.] It is not necessary to show error, it is just an improvement on the sentence. As stated in Groethe by an almost unanimous court: “We believe that such a provision will comport with the views that sentencing should be consistent with rehabilitation.” Id.

      . This statute provides:
      No previous conviction for, or plea of guilty to, a violation of § 32-23-1 occurring more than five years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense. However, any period of time during which the defendant was incarcerated for a previous violation may not be included when calculating if the time period provided in this section has elapsed.
      DuFault's 15-day jail sentence in 1995 did not preclude application of this statute.

      . We note that the 2000 Legislature expanded the length of time a driver's license could be revoked for a person who causes the death of another while drinking and driving from two years to "such period of time as may be determined by the court.” SDCL 22-16-41; State v. Schwebach, 609 N.W.2d 130, 2000 SD 50, ¶ 8, n, 609 N.W.2d 130, 131, n.


author: CARTER, Justice.

text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR JONES, LEE, AND HENRY COUNTIES, Defendant.
    No. 98-1005.
    Supreme Court of Iowa.
    May 31, 2001.
    Thomas G. Becker, State Public Defender, and Mark C. Smith, First Assistant State Public Defender, for plaintiff.
    Philip B. Mears, Iowa City, for defendant.
   CARTER, Justice.

In these consolidated original certiorari actions, the State Public Defender challenges the district courts’ allowance of court-appointed-counsel fees in several postconviction actions brought under Iowa Code section 822.2(6) (1997). After reviewing the record and considering the arguments presented, we annul the writs of certiorari.

The question presented is entirely one of statutory interpretation. Each of the attorney-fee applications at issue involves a claim submitted prior to March 31, 1998, and ruled on by the district court between March 31, 1998, and June 30, 1998. These claims were approved by the district court based on a sixty-dollar hourly rate.

Judges in the judicial districts where these services were performed had regularly approved a sixty-dollar hourly rate for court-appointed services performed in this type of case prior to July 1, 1996. Some of the attorney-fee claims considered in the rulings now being reviewed involved services performed prior to July 1, 1996, and the State Public Defender did not challenge the sixty-dollar hourly rate that was applied by the court in allowing those claims.

The State Public Defender initially challenged the attorney-fee claims at issue here on the ground that a 1996 amendment to Iowa Code section 815.7 (1996 Iowa Acts ch. 1193, § 8) limits court-appointed fee applicants in claims for post-conviction relief under Iowa Code chapter 822 to the same hourly rate that a “contract attorney” would receive in a similar case. We considered the effect of this statute on court-appointed attorney fees in contempt proceedings in State Public Defender v. Iowa District Court, 594 N.W.2d 88 (Iowa 1999). We held in that case that, because there was no source for payment of the fees other than section 815.7, the fee applicants in contempt cases must be treated the same as the other fee applicants whose compensation is to come from that fund. State Pub. Defender, 594 N.W.2d at 40.

The present case differs from the case limiting fees in contempt matters because, as defendants urge, at the time the services at issue here were performed, there was a source for payment other than section 815.7. Prior to March 31, 1998, Iowa Code section 822.5 provided:

1. If the applicant is unable to pay court costs and expenses of legal representation, including stenographic, printing, or other legal services or consultation, these costs and expenses shall be made available to the applicant in the preparation of the application, in the trial court, and on review. However, nothing in this section shall be interpreted to require payment of expenses of legal representation, including stenographic, printing, or other legal services or consultation, when the applicant is self-represented or is utilizing the services of an inmate.
2. If an applicant confined in a state institution seeks relief under section 822.2, subsection 6, and the court finds in favor of the applicant, or when relief is denied and costs and expenses referred to in subjection 1 cannot be collected from the applicant, these costs and expenses initially shall be paid by the county in which the application was filed. The facts of payment and the proceedings on which it is based, with a statement of the amount of costs and expenses incurred, shall be submitted to the county in a timely manner with approval in writing by the presiding or district judge appended to the statement or endorsed on it, and shall be certified by the clerk of the district court under seal to the state executive council. The executive council shall review the proceedings and authorize reimbursement for the costs and expenses or for that part which the executive council finds justified, and shall notify the director of revenue and finance to draw a warrant to the county treasurer on the state general fund for the amount authorized.

During the time that this statute was in effect, attorney-fee claims of court-appointed counsel in section 822.2(6) cases were not affected by section 815.7.

On March 31, 1998, the legislature enacted a bill, effective upon enactment, amending subsection 2 of section 822.5 so as to change the words “initially shall be paid by the county in which the application was filed” to “shall be paid by the state public defender from the indigent defense fund in accordance with the procedures applicable in section 815.7.” 1998 Iowa Acts ch. 1016, § 1. The March 31, 1998 enactment deleted the provision for submitting the claims to the executive council. Id. It provided that, if prior reimbursement to counties by the executive council was less than the amount the counties were required to pay under court order, the State Appeal Board should reimburse the counties for the difference. Id. § 2. The bill provided that “This Act, being deemed of immediate importance, takes effect upon enactment and applies retroactively to any claims for costs and expenses which are or were approved by a presiding or district judge on or before the effective date of this Act.” Id. § 3.

The State Public Defender does not dispute the fact that the attorney services at issue were subject to funding by the counties under section 822.5(2) at the time they were performed. He argues, however, that the language quoted in the preceding paragraph retroactively relegates these claims to payment from the indigent defense fund, which he administers. We agree with that contention. He further urges that, because the claims must be paid from that fund, they are subject to the hourly fee limitation applicable to contract attorneys under section 815.7. We do not agree with that contention.

Legislative enactments normally operate prospectively to only affect matters occurring after the effective date of the statute. Frideres v. Schiltz, 540 N.W.2d 261, 264-65 (Iowa 1995); McKinley v. Waterloo R.R., 368 N.W.2d 131, 136 (Iowa 1985). That is the rule of interpretation codified in Iowa Code section 4.5, unless the legislature has expressly directed otherwise. Our analysis of the retroac-tivity language contained in subsection 3 of 1998 Iowa Acts chapter 1016, section 1 convinces us that it does not support the result for which the State Public Defender argues.

The retroactivity language of subsection 3 of 1998 Iowa Acts chapter 1016, section 1 only speaks to claims approved by a judge prior to the date of the 1998 amendment to section 822.5. This language only establishes that those attorney-fee claims finally resolved but not paid prior to the date of the amendment were to be paid from the indigent defense fund. Implicit in this statutory scheme is the intent that claims for fees that are resolved after the date that the amendment became effective are also to be paid from this fund. Nothing in the language of the amendment suggests, however, that fees to be allowed for services performed prior to the time that 1998 Iowa Acts chapter 1016, section 1 became effective were to be limited by the hourly rates of contract attorneys. If, as the State Public Defender suggests, the language “in accordance with the procedures applicable in section 815.7” incorporates the “contract rate” limitation contained in that statute, a question we need not decide, this is only true for services performed after March 31,1998.

Our interpretation is consistent with general legal principles involving the retroactive application of statutes and prevents an injustice of the type recognized in an analogous federal court decision. In Jensen v. Clarke, 94 F.3d 1191 (8th Cir.1996), the court, in deciding whether the Prison Litigation Reform Act, 18 U.S.C. § 3626 and 42 U.S.C. § 1997, serves to reduce attorney-fee entitlements for services performed prior to the statute’s enactment, observed:

[T]he plaintiffs and their attorneys have proceeded from the outset under the assumption that [the prior attorney-fee standard] would apply to this case.... It would be “manifestly unjust” to upset those reasonable expectations and impose new guidelines at this late date.

Jensen, 94 F.3d at 1203. It would be similarly unjust to retroactively impose new fee guidelines in the present case.

We have considered all issues presented and conclude that the writs of certiorari should be annulled.

WRITS ANNULLED.

      . Later in the same legislative session another bill (1998 Iowa Acts ch. 1132 § 1) was approved and signed into law which once again rewrote section 822.5. This enactment superseded 1998 Iowa Acts chapter 1016 on July 1, 1998. See Iowa Code § 4.8 (if statutes enacted at same session of legislature are irreconcilable, statute latest in date prevails).


author: Kathleen A. Blatz Chief Justice

text:
    Susan M. ZACHMAN, Maryland Lucky R. Rosenbloom, Victor L.M. Gomez, Gregory J. Edeen, Jeffrey E. Karlson, Diana V. Bratlie, Brian J. LeClair and Gregory J. Ravenhorst, individually and on behalf of all citizens and voting residents of Minnesota similarly situated, Petitioners, v. Mary KIFFMEYER, Secretary of State of Minnesota, and Doug Gruber, Wright County Auditor, individually and on behalf of all Minnesota county chief election officers, Respondents.
    No. C0-01-160.
    Supreme Court of Minnesota.
    July 12, 2001.
   ORDER

On March 2, 2001, petitioners’ motion for the appointment of a special redistricting panel to hear and decide challenges to the validity of state legislative and congressional districts based on the 2000 Census was granted. The appointment of the panel was stayed until further order of the Chief Justice. Upon review of the duties and responsibilities to be undertaken by the panel, it is now determined that the appointment of a five-judge panel is necessary and appropriate. The concern remains, however:

While the need to have state legislative and congressional district lines drawn in time for the 2002 election cycle imposes undeniable time constraints on this process, it is important that the primacy of the legislative role in the redistricting process be honored and that the judiciary not be drawn prematurely into that process.

Order of Chief Justice, No. C0-01-160 (Mar. 2, 2001).

NOW, THEREFORE, IT IS HEREBY ORDERED that the following judges are appointed to hear and decide all matters, including all pretrial and trial motions, in connection with the panel’s ultimate disposition of the above-entitled action:

Hon. Edward Toussaint, Jr., presiding judge
Hon. Thomas J. Kalitowski
Hon. Gary J. Pagliaccetti
Hon. Heidi S. Schellhas
Hon. Renee L. Worke

See Minn.Stat. § 2.724, subd. 1 (2000).

IT IS FURTHER ORDERED that the special redistricting panel shall release a redistricting plan that satisfies constitutional and statutory requirements only in the event a legislative redistricting plan is not enacted in a timely manner. See White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973) (“[R]eap-portionment is primarily a matter for legislative consideration and determination ⅜ ⅞ *»). Minn.Stat. § 204B.14, subd. 3(c)(2000) (requiring precinct boundaries to be reestablished within 60 days of redistricting, or at least 19 weeks before state primary election, whichever occurs first).

BY THE CHIEF JUSTICE:

Kathleen A. Blatz Chief Justice


author: LINDBERG, Judge

text:
    In re the APPLICATION OF Sharif Ali Sharif SALAH, Petitioner, Appellant, v. Naima S. Awes, a/k/a Naimo Sheck Awes, Respondent.
    No. C4-01-145.
    Court of Appeals of Minnesota.
    June 12, 2001.
    Thomas W. Tuft, Valerie A. Downing Arnold, Thomas Tuft Law Offices, St. Paul, for appellant.
    Maury D. Beaulier, Bloomington, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, and KALITOWSKI, and LINDBERG, Judges.
   OPINION

LINDBERG, Judge

While cohabiting in Canada, appellant Sharif Ali Sharif Salah and respondent Na im a. S. Awes had a child. Respondent and the child later moved to Minnesota. Appellant sought to have the child returned to Canada under the Hague Convention on the Civil Aspects of International Child Abduction. The district court initially granted appellant’s ex-parte petition, but after a subsequent hearing attended by both parties, the district court granted temporary custody to respondent and set a hearing for a permanent custody determination. Appellant moved to dismiss, alleging the district court lacked jurisdiction to address custody because the child had to be returned to Canada. The district court denied his motion. Appellant appeals the denial of his motion. Because the district court failed to explain its application of the Convention and Canadian law, we remand.

FACTS

The parties had a child in Canada. Later, respondent and the child moved to California and, subsequently, to Minnesota. In June 2000, appellant, still in Canada, petitioned the Canadian Central Authority for assistance in retrieving the child from Minnesota. In the resulting proceeding, filed in Minnesota district court, appellant filed an ex-parte application for a warrant to take immediate physical custody of the child. Appellant’s supporting affidavit alleged:

1. The parties were married in Kenya in 1994.
2. Appellant then emigrated to Toronto in Ontario, Canada.
3. Respondent joined him in September 1995.
4. The parties’ child was born in August 1996.
5. The parties separated in November 1997 and the child stayed with respondent.
6. The parties contemplated a divorce at that time but decided to wait until the child was older.
7. The parties continued to have a good relationship and appellant visited the child.
8. In June 1998, appellant moved to Montreal, Quebec for school.
9. Respondent and the child remained in Toronto.
10. Appellant visited the child twice per month.
11. In August 1998, respondent told appellant she and the child were going to Windsor, Ontario to visit family but refused to give appellant a phone number in Windsor where she could be reached.
12. Respondent and the child returned to Toronto in November and appellant’s visits continued.
13. In April and May 1999, appellant was in Toronto and spent almost all of his time with the child.
14. Appellant returned to Montreal in June and started visiting with the child by phone.
15. In mid-July respondent’s phone was disconnected.
16. On August 15, appellant went to Toronto to locate respondent and the child.
17. In Toronto, appellant was told respondent and the child moved to Windsor.
18 In October, a friend told appellant that respondent and the child were in Minneapolis and that respondent had married another man.
19. Appellant then contacted, among others, the Montreal police and the Center for Missing and Exploited Children, with the result that he was appointed counsel for pursuing the return of the child through the Canadian Central Authority.
20. Appellant feared that if respondent knew appellant was seeking to have the child returned to Canada, she would abscond with the child.
21. Appellant wanted custody of the child in Canada so that a dissolution proceeding could be filed in Canada and custody addressed in that Canadian proceeding.

After an ex-parte hearing, the district court granted appellant’s request for a warrant for immediate custody. Apparently, the child was then taken from respondent.

Two days later, respondent sought an emergency order re-awarding custody to her. The papers supporting her motion alleged:

1. The parties were never married.
2. The parties met in Rome in 1994 and appellant told respondent he could get her into Canada based on false marriage papers and a Canadian sponsorship.
3. In 1995, respondent met appellant at the Canadian border and he provided her with sponsorship papers.
4. The parties then crossed the Canadian border and cohabited.
5. When appellant later learned respondent was expecting a child, he demanded she have an abortion and became physically violent.
6. After six months of abuse, respondent left appellant and entered a battered-women’s shelter.
7. Respondent stayed in the shelter for three months, had the child in August 1996, and then stayed an additional four months in the shelter.
8. The shelter then helped respondent move to an apartment.
9. Appellant first visited in mid 1997 and told respondent he would change his behavior and was sorry about his prior conduct.
10. When respondent told appellant that she did not want to continue her relationship with him, he became physically violent and threatened to kill respondent.
11. Based on appellant’s threat, respondent decided to leave Canada.
12. Respondent and the child went to live in Los Angeles, California with appellant’s cousin.
13. Appellant knew respondent and the child were staying with his cousin.
14. “[0]n a regular basis,” appellant called respondent in Los Angeles to threaten her.
15. Appellant did not visit the child over the next two years.
16. While in California, respondent met a man and agreed to marry him.
17. Respondent and her fiancé moved to Minnesota in 1999.

Attached to respondent’s affidavit was a letter from the U.S. Justice Department stating it had recommended granting respondent’s request for asylum in the United States but that various clearances were required before asylum could be granted in final form.

At the hearing on November 2, respondent’s counsel stated that the respondent had never been to Kenya, that the respondent “agree[s] that [the parties] were married in a religious ceremony that is not viewed as a legally binding marriage through their culture, through the Koran[,]” and that appellant cancelled his “affidavit of support” and that therefore, under Canadian immigration law, respondent would thereby be deported from Canada. Appellant’s counsel argued that respondent’s abuse allegations were false and had been made to qualify respondent for certain benefits in Canada and that respondent changed the child’s name upon entering the United States. On November 7, the district court issued an order that lacked findings of fact. It re-awarded custody to respondent, appointed a guardian ad litem, and set a November 30 hearing to decide custody.

On November 16, appellant filed an amended petition for a warrant for custody of the child. He alleged, among other things, that, under the Convention, the proceeding had to be dismissed for lack of jurisdiction. In a November 30 order, again lacking findings of fact, the district court denied appellant’s motion. Appellant appeals.

ISSUE

Did the district court err in denying appellant’s motion to dismiss the custody proceeding for lack of jurisdiction?

ANALYSIS

This appeal involves the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610 (2000). The ICARA makes applicable in the United States the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, 51 Fed.Reg. 10,493, 10,498 (app.B) (Mar. 26, 1986) (hereinafter Hague Convention). It is undisputed that the United States and Canada both subscribe to the Hague Convention. Appellant alleges that, under the Convention, the Minnesota district court lacked jurisdiction to address the merits of the parties’ custody dispute because the child had to be returned to Canada. The denial of a motion to dismiss for lack of jurisdiction is immediately appealable. Engvall v. Soo Line R.R. Co., 605 N.W.2d 738, 744 (Minn.2000) (subject matter jurisdiction); Viking Eng’g & Dev., Inc. v. R.S.B. Enter., Inc., 608 N.W.2d 166, 168 (Minn.App.2000) (personal jurisdiction), review denied (Minn. May 23, 2000). The existence of jurisdiction is a legal question which appellate courts review de novo. See Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 704 (Minn.App.1996) (addressing existence of jurisdiction under Uniform Child Custody Jurisdiction Act).

The Hague Convention’s purposes are “to secure the prompt return of children wrongfully removed or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.” Hague Convention art. 1 (emphasis added); see Miller v. Miller, 240 F.3d 392, 398, (4th Cir.2001) (stating “the primary purpose of the Hague Convention is ‘to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court’”) (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993)). Proceedings under the Hague Convention “do not allow a court applying the Convention to adjudicate the merits of any underlying custody claims,” only the question of wrongful removal. Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir.1995); see Friedrich, 983 F.2d at 1400 (stating under the Hague Convention, “a United States District Court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim”).

Removal of a child from a contracting country is “wrongful” under the Convention if “it is a breach of rights of custody attributed to a person * * * under the law of the State in which the child was habitually resident immediately before the removal” and, “at the time of removal * * * those rights were actually exercised * * * or would have been exercised but for the removal[.]” Hague Convention art. 3(a);(b); see Hague Convention art. 14 (stating, in determining whether wrongful removal occurred, judicial or administrative body making that determination may “directly” take notice of law of “State” of child’s habitual residence). Here, it is undisputed that, before respondent moved the child to the United States, the child was “habitually resident” in Ontario in Canada.

The parties dispute whether they were married but do not dispute that they cohabited. Therefore, it is presumptively correct to treat appellant as the child’s father. See Children’s Law Reform Act, R.S.O., eh. C-12, § 8(1)(4), (1990) (Can.) (hereinafter CLRA) (stating “there is a presumption that a male person is, and shall be recognized in law to be, the father of a child” if “[t]he person was cohabiting with the mother of the child in a relationship of some permanence * * * [or] the child is born within 300 days after they ceased to cohabit”). In fact, at oral argument before this court, appellant, through counsel, agreed he is the child’s father.

Under the CLRA, generally, a child’s mother and father “are equally entitled to custody of the child.” CLRA § 20(1). There is, however, an exception:

Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent, or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

CLRA § 20(4). Here, it is undisputed that the child lived with respondent after the parties separated. The district court did not find whether or to what extent there was an actual or implicit agreement between the parties. And, on this disputed record, the nature of the parties’ arrangement (if any) is unclear. Thus, the extent of appellant’s rights regarding the child under Canadian law is unclear.

Similarly, under the Convention, if more than a year passes between a wrongful removal and the institution of proceedings to return the child, the child shall be returned “unless it is demonstrated that the child is now settled in its new environment.” Hague Convention art. 12. Also, return is not required if the party opposing the return establishes that the person seeking the return, at the time of the removal, “had consented to or subsequently acquiesced in the removal.” Hague Convention art. 13(a). Similarly, return is not required if the party opposing the return established that return would create a “grave risk” to the physical or psychological harm to the child or otherwise place the child in an “intolerable situation.” Hague Convention art. 13(b). Here, apparently, the child was in Minnesota for over a year before appellant filed his papers in Minnesota district court. And, what, if any, contact appellant has had with the child in the last three years is disputed. Also, at the November 2 hearing, respondent’s counsel alleged returning the child to Canada would create a “grave risk” of harm to the child and the existence of an “intolerable situation.” Absent findings by the district court, it is unclear whether the district court concluded that the child’s removal from Canada was not wrongful under the Hague Convention or that the removal was wrongful but that one or more exceptions applied, allowing custody to be determined in Minnesota. In short, absent an explanation by the district court of what legal and factual determinations it made, how to review those determinations is unclear. And, on this disputed record, we decline to attempt to address the questions as a matter of law.

DECISION

Because the district court failed to adequately explain its application of the Hague Convention on the Civil Aspects of International Child Abduction and the relevant aspects of Canadian law, this case is remanded. On remand, the district court shall explicitly apply the relevant portions of the Hague Convention and make findings of fact explaining its application of the Hague Convention. Upon making its determination under the Hague Convention, the district court shall reevaluate the propriety of addressing the custody issue in Minnesota and shall explain its ruling on that question. The district court shall reopen the record and take the evidence necessary to allow it to address these questions. We express no opinion on the questions of whether the child must be returned to Canada, whether custody should be addressed in Minnesota, or the ultimate disposition of the custody question.

Remanded.

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

      . The appendix to respondent's brief to this court includes a letter from the Canadian women's shelter where she allegedly stayed after leaving appellant. The letter states that when respondent arrived at the shelter on May 18, 1996, she had a broken leg, a black eye, and a bruised body, that respondent’s emotional and physical health, as well as her pregnancy, were compromised, that respondent was under-nourished and required an I.V. and a special diet, and that respondent and the child left the shelter in November 1996. Because this letter is not in the district court file presented to this Court, we do not consider it. See Minn.R.Civ.App.P. 110.01 (defining record on appeal as papers filed in district court, the exhibits, and the transcript, if any); Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn.1988) (stating reviewing court cannot base its decision on matters not submitted in evidence to district court).