Lockwood, Edward, Jr., Estate of, 7 IBIA 271 (1979)

• Court: Interior Board of Indian Appeals

Appeal from order by Administrative Law Judge Daniel S. Boos denying rehearing.

Affirmed.

1. Evidence: Credibility of Witnesses--Indian Probate: Marriage: Common Law

   Common-law marriage is not established where one claiming to be the common-law wife of decedent testifies she cannot recall the time the alleged marriage occurred, and where her claim is not supported by a preponderance of other credible evidence, showing public assumption of the marriage relationship.

2. Administrative Procedure: Administrative Procedure Act--Indian Probate: Administrative Procedure: Applicability to Indian Probate

   The Board of Indian Appeals has authority to reverse findings of fact by an Administrative Law Judge even when not clearly in error. But an Administrative Law Judge will not be reversed when his decision turns upon findings concerning credibility, which in turn are based upon the demeanor of witnesses, and such findings are supported by substantial evidence.

   IBIA 79-25

3. Administrative Procedure: Administrative Law Judges--Administrative Procedure: Hearings

   The Administrative Law Judge properly exercised his authority to control the hearings where he controlled the manner of examination but did not limit the scope of testimony of witness, and where he permitted adequate time for submission of proposed findings by the parties prior to issuance of the final order.

   APPEARANCES: Lewis E. Brueggeman, Esq., for appellant Hazel Lockwood; Thomas K. Schoppert, Esq., and William P. Fitzgerald, Esq., for appellees Emma Lockwood Jones, Belva Lockwood Vallie, Pansy Lockwood Goodall, Hilda Lockwood Smith, Estate of Wilford Lockwood, Etta Cecelia Lockwood Drags Wolf, Beulah Lockwood, Cleo Jean Lockwood Hayer, Frank Norman Lockwood, Clayton Lee Lockwood, Loris Elaine Lockwood Zuck, Lana Geraldine Lockwood Hansen, Mason Mandell Lockwood, Leroy Michael Lockwood, Deborah Kaye Lockwood, Juliette Lockwood, and Ace Lockwood.

   OPINION BY ADMINISTRATIVE JUDGE ARNESS

   On appeal from the order denying rehearing, appellant seeks to overturn a determination she is not the common-law wife of Edward Lockwood, Jr., who died intestate at Billings, Montana, on March 28, 1977. At the time of his death, decedent was the beneficial owner of trust lands and accounts located at the Fort Berthold reservation in North Dakota. The thrust of appellant's claim for relief addressed to this Board is that the Administrative Law Judge's finding that decedent was unmarried is not factually correct. Appellant attacks the finding as to decedent's marital status which is the stated basis for the order denying her petition for rehearing, and she argues the Administrative Law Judge erroneously interpreted the testimony of witnesses concerning marriage at the four evidentiary hearings held in the probate of decedent's estate.

   The facts of the case are set forth in the Administrative Law Judge's order determining heirs, which is attached. 1/

   ___________________________ 1/ The Montana law governing common-law marriage is not at issue in this case; the parties clearly agree with the statement of that law as it appears in the order determining heirs, as does this Board. The issues on appeal in this case are almost entirely factual, as the attached order demonstrates.

   IBIA 79-25

   Appellant asserts, generally, that the Judge's order is based only upon the testimony of the Indian heirs, all of whom disputed appellant's claimed marriage to decedent, and that the order ignores the testimony of other disinterested witnesses, some of whom felt decedent and appellant were man and wife. Additionally, appellant charges the Administrative Law Judge erred by his treatment of witnesses which allegedly encouraged contemptuous treatment of appellant, and further, that appellant was prejudiced by a failure to permit her to file proposed findings of fact and conclusions of law at the conclusion of the proceedings.

   [1, 2] Although factually complex, the legal issues on appeal ultimately resolve into a question of the weight to be accorded findings based upon the Administrative Law Judge's assessment of the demeanor of the witnesses appearing before him, especially the testimony by appellant herself. 2/ Appellant squarely presents the issue as a factual matter, and urges that the preponderance of evidence establishes her to be the common-law wife of decedent, and that the Administrative Law Judge erred in rulings concerning the credibility of witnesses based upon demeanor which led to his conclusion decedent was single.

   In State Director for Utah v. Edgar Dunham, 3 IBLA 155, 78 I.D. 272 (1971), the opinion of the Interior Board of Land Appeals aptly summarized the approach which both the law and necessity require to be taken when evaluating a record for factual error by the initial fact-finder where demeanor of witnesses is the key to the decision made thus:

   It is clear that the agency, rather then the examiner, is the primary fact finder. * * * His findings may be reversed by the agency even when not clearly erroneous. * * *

   ___________________________ 2/ The Administrative Law Judge's appraisal of appellant's demeanor is supported, not only by other testimony, but also by the record itself. She was unable to remember the day she married decedent, or the day he gave her a gold wedding band (although she makes this event the centerpiece of her case). Unable to describe her contribution to the claimed marriage in detail, she ends by declaring she had no interest in burying decedent since he had "folks" who could do that, or else that the funeral should have been handled by the Veterans Administration, since decedent had been in service. Her lack of detailed information about decedent is in sharp contrast to the testimony of one of the neighbors who, though only a casual acquaintance, knew about decedent's school experiences, military service, and intimate details of current concerns which worried and interested decedent.

   IBIA 79-25

   It is axiomatic that there are no prescribed rules or methods of evaluating the credibility of oral testimony. In the brief time that the witness testifies, it is difficult for the trier of the facts to ascertain whether the witness is telling the truth. More important in this regard than knowledge of the substantive law and the law of evidence is the natural and acquired shrewdness and experience by which an observant man forms an opinion as to whether a witness is or is not telling the truth. The most acute observer would never be able to catalogue the nuances of voice, the passing shades of expression, or the unconscious gestures which he had learned to associate with falsehood; and if he did, his observations would probably be of little use to others. Every man must learn matters of this sort for himself, and though no sort of knowledge is as important to a hearing officer, no rules can be laid down for its acquisition. No process is gone through the correctness of which can be independently tested. The judge or hearing officer has nothing to trust but his own nature and acquired sagacity.

   * * * * * *

   Witnesses are on occasion affected by bias, partisanship, over zealousness, and other constraints. We do not intend to suggest any failing in the witnesses in the hearing below. We simply must accord proper weight to the fact findings of a hearing examiner where they depend primarily on the credibility of the witnesses and are supported by substantial evidence. As indicated above, the appellant has chosen to make such findings the gravamen of his appeal. [3/]

   Examining the fact-findings by the Administrative Law Judge using the stated standard, there appears no reason to reverse his order. The Judge's conclusions are supported by other evidence, and his findings concerning the demeanor of certain witnesses, which reduced the effect of their testimony in his judgment, is consistent with the record as a whole. He correctly found decedent to be a single man at the time of his death.

   ___________________________ 3/ State Director for Utah v. Edgar Dunham, at 78 I.D. 273-275 (citations to authority and footnotes omitted). For a recent judicial assessment of the role of the agency reviewer in relation to the initial agency fact-finder in the administrative process see Nelson v. Interior Board of Land Appeals, 598 F.2d 531 (9th Cir. 1979). (The rule laid down in the Dunham case is favorably discussed in dicta in First Federal Sav. and Loan Assn. of Fayettesville v. Federal Home Loan Bank Bd., 426 F. Supp. 454, aff'd, 570 F.2d 693 (D.C. Ark. 1977).)

   IBIA 79-25

   [3] Appellant's argument concerning claimed errors in hearing procedure employed by the Administrative Law Judge is also without merit. The verbatim transcript of proceedings shows a lengthy and complicated probate to have been conducted according to requirements of 43 CFR 4.230, 4.231, and 4.232 and in conformity to the standards of the Administrative Procedure Act, section 4, 5 U.S.C. §§ 556, 557 (1976). No specific conduct by the Administrative Law Judge towards any witness is pointed out by appellant as prejudicial to her case. In several instances the Administrative Law Judge stopped the continued repetition of the same or similar questions by counsel; in no instance was there a limitation of any witnesses' testimony; no testimony which was offered was refused. Similarly, although appellant claims she was denied the right to file proposed findings, it does not appear any were offered by her. 4/ The bulk of the testimony was concluded in this matter on August 29, 1978. Although there was another hearing on January 22, 1979, the testimony of the three witnesses who appeared was known to both sides beforehand: clearly, proposed findings could have been submitted to the Administrative Law Judge on the date of the last hearing. Certainly, proposed findings could have been offered before February 5, 1979, the date the order issued. Appellant did not assign lack of opportunity to file proposed findings as a...