Byzewski v. Byzewski

• Decision Date: 20 September 1988
• Docket Number: No. 870132,870132
• Citation: 429 N.W.2d 394
• Parties: Raphael August BYZEWSKI, Plaintiff and Appellee, v. Marilynn Lavonne BYZEWSKI, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 394

429 N.W.2d 394

57 USLW 2279

Raphael August BYZEWSKI, Plaintiff and Appellee, v. Marilynn Lavonne BYZEWSKI, Defendant and Appellant.

Civ. No. 870132.

Supreme Court of North Dakota.

Sept. 20, 1988.

Robert A. Alphson & Associates, Grand Forks, for plaintiff and appellee; argued by Lael L. Schmidt. Appearance by Randy Sickler, Law Student.

Duane E. Houdek, Legal Assistance of North Dakota, Bismarck, and Albert Jones, Dakota Plains Legal Services, Mission, S.D., for defendant and appellant; argued by Albert C. Jones. Appearance by Duane E. Houdek.

LEVINE, Justice.

Marilynn LaVonne Byzewski, an enrolled member and resident of the Standing Rock Sioux Indian Reservation, appeals from a district court divorce judgment awarding Raphael August Byzewski, a non-Indian currently residing in Grand Forks County, custody of the couple's three children and ordering that she pay child support. Marilynn asserts that the district court lacked subject matter jurisdiction to adjudicate Raphael's custody and support claims. We agree and accordingly reverse the judgment insofar as it awards Raphael custody of the children and orders Marilynn to pay child support.

Marilynn and Raphael have been married twice to each other. They were first married on December 2, 1979 in Grand Forks, after having lived together for approximately eight years. Prior to that marriage, three children were born to the couple: Twyla, age 16; Raphael, Jr., age 15; and Joel, age 11. The Grand Forks County District Court granted the parties their first divorce on December 18, 1980, while they were living in Grand Forks. Under the terms of that divorce decree, Raphael was awarded custody of Raphael, Jr., and Marilynn was awarded custody of Twyla and Joel. The parties subsequently stipulated that Raphael's parents, Theodore and Josephine Byzewski of Manvel, North Dakota, have legal custody of Raphael, Jr., and Joel. The divorce judgment was amended accordingly by the district court on January 26, 1982. Under the amended decree, Marilynn retained legal custody of Twyla.

On May 24, 1983, the parties were remarried to each other at McIntosh, South Dakota, and along with the three children, began living on the Standing Rock Sioux Indian Reservation. Although the parties never sought to have the Grand Forks County District Court vacate the prior amended divorce decree, the grandparents did not object to the parties' taking physical custody of the two boys upon their remarriage. The family continued to live together on the reservation until March 13, 1986, when the events setting the stage for this controversy occurred.

On that date the parties separated and Marilynn obtained from the Standing Rock Sioux Tribal Court: 1) a "Temporary Custody Order" granting custody of the three children to Marilynn "until further Order of this Court;" 2) a "Temporary Restraining Order" effective for 90 days restraining Raphael from entering Marilynn's residence and "from any form of physical or verbal harassment to Marilynn;" 3) an order requiring Raphael to remove his personal belongings from Marilynn's residence; 4) a summons ordering Raphael to appear before the tribal court to answer a complaint charging him with "alcoholism;" 5) a "Divorce Information" sheet listing the names and dates of birth of the children, the marital property, and the reason for requesting a divorce; and 6) an order waiving the six-month waiting period for divorce under tribal law and ordering that "the divorce hearing be set as soon as possible." The record reflects that on March 13, 1986, Raphael was personally served on the reservation with the Temporary Custody Order, the Temporary Restraining Order, the order requiring him to remove his personal belongings, and the summons to answer the complaint. The Divorce Information sheet and the order waiving the six-month waiting period for divorce were subsequently received by Raphael's attorney in Grand Forks.

Raphael left the Reservation with Raphael, Jr. and Joel, and on March 14, 1986, he filed an action for divorce against Marilynn in Grand Forks County District Court. Marilynn was personally served with the summons and complaint on the Reservation by a Standing Rock Law Enforcement Services police officer. On March 14, the district court also issued an ex parte order continuing legal custody of Raphael, Jr. and Joel in the paternal grandparents. On April 10, 1986, the district court issued an interim order awarding custody of the boys to the paternal grandparents.

After Raphael applied for a default judgment, Marilynn made a special appearance through counsel and moved to dismiss the divorce action for lack of jurisdiction. On October 3, 1986, the district court ruled that it had subject matter jurisdiction of the divorce action, as well as personal jurisdiction over Marilynn. The court further concluded that its jurisdiction "is not rendered subsequent in time" by the tribal court's issuance of the various orders on March 13, 1986 because they "did not constitute an action for divorce" but were "consistent with the continuation of the parties' marriage." The court also found that its acceptance of jurisdiction over the divorce case would not impermissibly infringe on the right of reservation Indians to make their own laws and to be governed by them "because absolute denial of state court jurisdiction in a conflict of laws case such as this would subject non-Indian spouses of Indian persons to tribal jurisdiction without the benefit of Indian citizenship."

On December 9, 1986, Marilynn sought a divorce in tribal court and caused a summons and divorce petition to be mailed to Raphael's counsel in Grand Forks. A default "judgment and decree of divorce" was issued by the tribal court on February 25, 1987. The tribal court's decree awarded custody of the three children to Marilynn and ordered Raphael to pay child support and alimony. The district court held a default divorce hearing on February 17, 1987 and issued its divorce judgment on March 12, 1987. The district court's divorce judgment awarded custody of the three children to Raphael, with an option of guardianship to continue with the paternal grandparents, and ordered Marilynn to pay child support. Marilynn has appealed.

Marilynn asserts that the district court lacked subject matter jurisdiction to adjudicate the custody and support matters in this divorce action brought by a non-Indian against a member and resident of the reservation because the cause of action arose on the reservation and, consequently, the district court's acceptance of jurisdiction impermissibly infringed on the Tribe's right of self-governance.

Marilynn principally relies upon the infringement test set forth in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), in which the United States Supreme Court held that state courts do not have jurisdiction over a claim by a non-Indian against an Indian which arises on an Indian reservation. In that case a non-Indian, operating a general store on an Indian reservation, brought suit in Arizona state court to collect for goods sold on credit to a tribal member. The Supreme Court concluded that to allow the exercise of state jurisdiction under the circumstances "would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves." Williams v. Lee, supra, 358 U.S. at 223, 79 S.Ct. at 272. Only "where essential tribal relations were not involved and where the rights of Indians would not be jeopardized" could state jurisdiction be asserted. Williams v. Lee, supra, 358 U.S. at 219, 79 S.Ct. at 270. Thus, absent congressional action, the question is whether the state action infringes on the right of reservation Indians to make their own laws and be ruled by them. Williams v. Lee, supra, 358 U.S. at 220, 79 S.Ct. at 271.

In R.J. Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979, 983 (9th Cir.1983), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985), the court observed that:

"A tribe's interest in self-government could be implicated in one of two ways. First, if a state or federal court resolves a dispute which was within the province of the tribal courts or of other nonjudicial law-applying tribal institutions, that court would impinge upon the tribe's right to adjudicate controversies arising within it. Fisher v. District Court, 424 U.S. 382, 387-88, 96 S.Ct. 943, 946-47, 47 L.Ed.2d 106 (1976) (per curiam); see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66, 98 S.Ct. 1670, 1680-1681, 56 L.Ed.2d 106 (1978). Second, if the dispute itself calls into question the validity or propriety of an act fairly attributable to the tribe as a governmental body, tribal self-government is drawn directly into the controversy. Littell [ v. Nakai, 344 F.2d 486, 490 (9th Cir.1965) ]."

The question becomes whether Williams v. Lee is applicable to child custody and support claims incident to a divorce action between a non-Indian and an Indian. We would have little difficulty in finding Williams v. Lee applicable to a case involving Indian spouses residing on the reservation. We are less certain about its applicability to the circumstances here. However, given the clear policy of the United States Supreme Court favoring tribal self government [ Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) ], we conclude that, under the circumstances of this case, in particular, because first-in-time temporary orders were issued by the tribal court and because the custodial domicile was the reservation, Williams v. Lee is applicable and that the exercise of jurisdiction by the state court interferes with the sovereignty of the Tribe.

Applying the rationale of Williams v. Lee to this case is problematic because there are jurisdictional prerequisites associated with the incidents of divorce which are not usually present in an ordinary...