Cline v. Miller, (1996)

• Court: Nooksack Tribal Court of Appeals
• Decision Date: 17 October 1996
• Docket Number: 015,NOO-Y-592-014
• Citation: Cline v. Miller (Nooksack Tribal Ct. of App. 1996)
• Parties: TAMI N. CLINE, APPELLANT v. SCOTT MILLER, RESPONDENT

TAMI N. CLINE, APPELLANT v. SCOTT MILLER, RESPONDENT

Nos. NOO-Y-592-014, 015

Nooksack Tribal Court Of Appeals Nooksack Indian Reservation Deming, Washington

October 17, 1996

Tami Cline, appellant; Kathleen Hathaway, attorney for appellant Scott Miller, respondent; Robert Och, Attorney for respondent.

Before: Elbridge Coochise, Chief Justice; Douglas W Hutchinson, Justice; and Rose E. Purser, Justice.

SUMMARY

Appeal of trial court denial of petition for custody. Trial Court's denial was based on previous trial court order which purported to change a guardianship proceeding into a custody proceeding. We find the earlier order was invalid because the change from guardianship to custody was neither explicit nor authorized. The trial court order is in error. We reverse and remand.

This matter came before the Nooksack Tribal Court of Appeals pursuant to Appellant Tami N. Cline's Notice of Appeal filed on May 29, 1996. Ms. Cline appeals the Order of the Nooksack Tribal Court, dated May 16, 1996, denying her petition for custody of the parties' two minor children C.M. and K.M.

I. JURISDICTION

This Court has personal jurisdiction over Appellant Tami N. Cline because she is a member of the Nooksack Indian Tribe and resides on the Nooksack Indian Reservation. This Court has personal jurisdiction over Respondent Scott Miller and the parties' two minor children because they reside on the Nooksack Indian Reservation. The act which is the subject of this appeal occurred within the exterior boundaries of the Nooksack Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this appeal pursuant to § 15.03.020 of the Nooksack Youth Code.

II. STATEMENT OF FACTS

On May 8, 1992 Scott Miller petitioned the Nooksack Tribal Court for custody of his two minor children, C.M. and K.M. Pursuant to a hearing which the children's mother, Tami Cline, did not attend, Judge E. Dulik issued a Guardianship Order. The June 18, 1992 Guardianship Order made C.M. and K.M. wards of the Nooksack Tribal Court and appointed Mr. Miller their general guardian "until otherwise ordered by [the] Court." The court also granted visitation rights to Ms. Cline.

On October 12, 1993, Ms. Cline moved the court to dissolve the guardianship. On October 21, 1993 Judge M. Pearson held a review hearing pursuant to that motion and issued an Order on Motion to Dissolve Guardianship (hereinafter, October 1993 Order). The actual order of the court set a hearing on the matter for November 18, 1993. There is nothing in the record that indicates whether the hearing ever took place.

The children resided with Mr. Miller, with visitation by Ms. Cline on alternating weekends, until the summer of 1995. At that time, Mr. Miller and Ms. Cline agreed that the children would reside with Ms. Cline until the end of the 1995-1996 school year.

On April 17, 1996 Ms. Cline filed a Motion to Dissolve Guardianship. On April 19, 1996 Ms. Cline petitioned the court for custody of C.M. and K.M. The trial court heard the matter on May 16, 1996. In a May 16, 1996 Order (hereinafter May 1996 Order) the trial court, relying on the October 1993 Order, denied Ms. Cline's Petition for Custody.

Ms. Cline timely appealed from the May 1996 Order. This Court accepted the appeal on May 31, 1996. Oral arguments were held on August 26, 1996.

III. ISSUE ON APPEAL

In her Notice of Appeal and subsequent supporting brief, Ms. Cline alleges a number of trial court errors, including several alleged violations of due process. For reasons we will discuss in the following section, we need not reach those assignments of error. The sole issue on appeal is whether there was prejudicial error which warrants reversal of the May 1996 Order.

IV. DISCUSSION

Ms. Cline cites several grounds for her appeal. Most of those are based on Nooksack Youth Code § 15.09 and allege that the trial court deprived her of due process during the May 16, 1996 hearing. This Court need not address those assignments of error because it finds that the trial court, in rendering its May 1996 Order, relied upon and upheld an invalid order.

Judge Pearson's October 1993 Order purports to change the status of the proceedings from a guardianship, as ordered in 1992 by Judge Dulik, to a custody:

The guardianship was entered by the Honorable Emma Dulik on June 18, 1992. Ordinarily, a guardianship is established when the custodial person is not a parent. This Court, however, will treat the Guardianship Order of June 18, 1992, as an Order for Custody and the Motion being filed by Tami Cline as a Motion for Modification of Custody.

October 1993 Order at 1, lines 17-21. These statements, however, are included in the text of the document as part of the discussion concerning the background of the case. The actual order of the court merely provides for a hearing on the matter to be held on November 18, 1993.^[1] There is nothing in the record that specifically and formally orders such a change; furthermore, there is no code provision which authorizes the court to do so.

Nevertheless, pursuant to its expressed intent to treat the proceedings as custody proceedings, the trial court instructed the parties:

The Court will expect the Petitioner to show that...