### IN THE SUPREME COURT STATE OF NORTH DAKOT A

2021 ND 1 44

Leanne M. Hoff Bilger, Plaintiff and Appellee

v. Joshua E. Bilger, Defendant and Appellant

No. 20210072

Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Frank L. Racek , Judge.

AFFIRMED

. Opinion of the Court by Crothers , Justice.

Lynn Slaathaug Moen, Mayville, ND

, for plaintiff and appellee ; submitted on brief

.
Kristin A. Overboe, Fargo, ND

, for defendant and appellant ; sub mitted on brief

.1 Bilger v. Bilger No. 20210072

Crothers , Justice.

[¶1] Joshua Bilger appeals from a district court order den y i ng his motion to
dismiss and vacate a judgment for legal separation. Bilger argues the court erred in finding the Servicemembers Civil Relief Act did not apply . We conclude the Act appl ies ; however, Bilger failed to invoke the protections of the
Act. We affirm.

I

[¶2] In July 2018, Leanne Hoff Bilger sued Joshua Bilger for legal separation. Bilger execut ed an a dmission of s ervice , acknowledging he received the summons and complaint, settlement agreement and an exhibit relating to division of property and debts. The parties executed the s ettlement a greement which stated Bilger was a member of the armed forces

. The district c ourt issued an order for judgment, and the clerk of court entered a judgment granting the parties a legal separation.

[¶3] In February 2020, Hoff Bilger applied to hold Bilger in contempt, claiming he failed to comply with cert ain provisions of the judgment. In November 2020, Bilger moved to dismiss the action and vacate the judgment

. Bilger a rgued the district court did not have personal jurisdiction over the parties because neither party resided in North Dakota when the judgment was
entered or within six month s before commencement of the action or entry of the judgment. At th e December 2020 hearing on Bilger’s motion

, Bilger’s attorney also claimed the “[Servicemembers] Civil Relief Act does apply in this case and . . . [Bilger ] was not notified of his rights or whether or not that civil act did apply.” The court denied Bilger’s motion, fin ding the parties voluntarily submitted to the court’s jurisdiction, and the Servicemembers Civil Relief Act did not apply.

II

[¶4] Bilger argues t he district court er re d by not receiving evidence at the hearing on his motion to dismiss. He claimed the court relied on the parties’2

submissions filed before the hearing and arguments from counsel. Because no evidence was received at the hearing, Bilger asserts the findings in the court’s
order denying his motion were based on inadmissible hearsay.

[¶5] Bilger did not object to the district court’s procedure at the hearing. He
did not offer additional evidence, nor did he request that the court hear testimony or receive additional evidence. “It is well established that arguments
not raised before the district court cannot be raised for the first time on appeal.” N.B. v. Terwilliger , 2021 ND 74, ¶ 20, 958 N.W.2d 487

. We decline to
address Bilger’s argument.

III

[¶6] Bil ger claims the district court erred in finding the Servicemembers Civil Relief Act did not apply

.
[¶7] At the hearing on Bilger’s motion

, t he district c ourt made findings relating to personal jurisdiction :

“ The defendant admitted service of the summons and comp laint on July 18th, 2018. At that time, submitted a stipulation for the entry of judgment, signed by both parties. Judgment by stipulation was entered on July 18 th by the Court.

“ The evidence shows and there’s an affidavit from the plaintiff that she’d been a resident of North Dakota for more than six months, prior to commencement of the action. The evidence on file with the Court in these motions show that the parties filed a joint 2017 North Dakota tax return. Both parties had North Dakota driver’s lic enses at the time of the entry of judgment herein, that they also filed taxes as North Dakota residents in the year 2018.

“ The Court had jurisdiction in this matter over both parties, personal jurisdiction. The defendant submitted to the jurisdiction of t he Court [all the] indicia is that the parties were residents of North Dakota. The defendant was in military service and temporarily away from the state, but that there is no showing that he was claiming residency in an y other jurisdiction.3 “ The motion i s denied. ”

In its o rder denying Bilger’s motion , the c ourt made the following findings:

“ The Court has both personal and subject matter jurisdiction over this matter. The parties both voluntarily submitted to the jurisdiction of the Traill County District Court. Both parties were residents of North Dakota and were absent temporarily due to military duty assignments. The Servicemembers and Sailors Civil Relief Act does not apply. ”

[¶8] On appeal, Bilger does not argue the district court lacked personal jurisdic tion over the parties. His arguments only relate to the application of
the Servicemembers Civil Relief Act.

[¶9] The Servicemembers Civil Relief Act “applies to each of the States,” and “applies to any judicial or administrative proceeding commenced in any cour t or agency in any jurisdiction subject to this chapter. This chapter does not apply to criminal proceedings.” 50 U.S.C. § § 3912 (a) and (b)

. The purpose of the Act is “to provide for the temporary suspension of judicial and administrative proceedings and t ransactions that may adversely affect the civil rights of servicemembers during their military service.” 50 U.S.C. § 3902(2).

[¶10] Bilger asserts Hoff Bilger failed to comply with s ection 3931 of the Act
because she did not submit an affidavit of military servi ce when she filed the action for legal separation . Section 3931(a), U.S.C. , states, “This section applies to any civil action or proceeding, including any child custody proceeding, in
which the defendant does not m ake an appearance.” 50 U.S.C. § 3931(a). Bilger made an appearance because he admitted service of the documents initiating
the action and executed the parties’ settlement agreement. Therefore, 50 U.S.C. § 3931 doe s not apply

.
[¶11] Because Bilger was a servicemember and had notice of the action , 50 U.S.C. § 3932, relating to a stay of proceedings when the servicemember has notice, applies:4

“ This section applies to any civil action or proceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an appli cation under this section

–
(1) is in military service or is within 90 days after termination of or release from military service; and

(2) has received notice of the action or proceeding. ”

U.S.C. § 3932(a)

.

Under 50 U.S.C. § 3932(b), a servicemember may apply to stay the action if the requirements of military duty affects the servicemember’s ability to appear. Bilger did not apply for a stay asserting his military duty affected his ability to appear and defend the action. Therefore, he forfeited the avail able protections of the Act. See State v. Watkins , 2017 ND 165, ¶ 12, 898 N.W.2d 442 (“Forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right.”).

[¶12] Bilger voluntarily submitted to the jurisdiction of th e district court. The Servicemembers Civil Relief Act applies in this case; however, Bilger did not invoke the protections of the Act by claiming his military duty affected his ability to defend the action . Therefore, t he court did not err in denying Bilger’s
motion to dismiss the action and vacate the judgment

.

IV

[¶13] The order is affirmed.

[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte