Edmond L. v. Misti W., (2010)

• Decision Date: 25 June 2010
• Docket Number: PUY-CV-05-365
• Parties: EDMOND L., PETITIONER AND APPELLANT, v. MISTI W., RESPONDENT AND APPELLEE.
• Court: Puyallup Tribal App Court

EDMOND L., PETITIONER AND APPELLANT, v. MISTI W., RESPONDENT AND APPELLEE.

No. PUY-CV-05-365

Puyallup Tribal Court of Appeals Puyallup Indian Reservation Tacoma, Washington

June 25, 2010

SYLLABUS BY THE COURT

SYLLABUS^*fn1

Trial court issued order requiring all future per capita payments on behalf of tribal minors to be made to the minors' custodial parent.Court of Appeals interprets statutory phrase "living with both of his/her biological parents" to require the biological parents to be co-domiciled, and holds that statutory provisions require the minors' per capita funds to be deposited to the pooled custodial account managed by the Tribe and disbursed to the custodial parent only upon an order of the court authorizing such a disbursement for the needs and in the interests of the minors.Tribal court order reversed and remanded.

SYLLABUS^[1]

Trial court issued order requiring all future per capita payments on behalf of tribal minors to be made to the minors' custodial parent.Court of Appeals interprets statutory phrase "living with both of his/her biological parents" to require the biological parents to be co-domiciled, and holds that statutory provisions require the minors' per capita funds to be deposited to the pooled custodial account managed by the Tribe and disbursed to the custodial parent only upon an order of the court authorizing such a disbursement for the needs and in the interests of the minors.Tribal court order reversed and remanded.

Kimberly S. Turnipseed for Appellant Edmond L.; David B Knodel for Appellee Misti W.

Before: Suzanne Ojibway Townsend, Chief Judge; Gregory M Silverman, Judge; Thomas Weathers, Judge.

OPINION

WEATHERS, J.

This case calls on us to harmonize the interplay between Puyallup Tribal Code ("PTC") 1.08.130 and PTC 1.08.140 with respect to tribal per capita payments on behalf of minors.^[2] The Tribal Court applied PTC 1.08.130 and ordered all per capita payments issued on behalf of the two minors in this case to be made to the mother.We reverse and remand with instructions to order all monthly per capita payments, past, present, and future, made on behalf of the two minors to be issued and transferred to the pooled custodial account managed by the Tribe as provided by PTC 10.08.140.

I.Background

In 2005, the father filed a petition for custody of his two tribal member sons after the mother left the state of Washington with the children.Each parent accused the other of drug and/or alcohol abuse, domestic violence, and neglect of the children.Prior to trial, each parent filed multiple declarations from relatives, friends and employers supporting their accusations against the other parent.It appears that the matter never went to trial.

Instead, the parents entered a "Final Agreed Parenting Plan" and a "Final Agreed Order of Child Support."The parties agreed that the mother would be the primary custodian with the two boys residing the majority of the time with her and that the father would pay $350 per month to the mother in child support.In addition, the Tribal Court ordered that the "father shall deposit each child's monthly per capita funds into an interest bearing trust fund via direct deposit from the tribe if possible until each child reaches the age of 18, unless otherwise agreed."The father complied with the order and set up two trust accounts at Tacoma Narrows Federal Credit Union in the names of the boys with the father's mother as the apparent trustee.The father then deposited per capita funds paid to the boys into each boy's account.^[3]

In 2008, the mother asked the Tribal Court to adjust the monthly child support and to redirect per capita payments to her as custodian for the two boys.The father objected.After renewed litigation over custody, child support, and per capita payments -- including mutual allegations of substance abuse and child neglect -- the Tribal Court entered an order on January 30, 2009.The order (1) declined to change custody or modify the 2005 Parenting Plan; (2) referenced the Tribal Court's prior directive to the parties to submit the question of appropriate child support payments to the Tribal Child Support Enforcement Office; and (3) held that language in the Tribe's per capita ordinance that "[a]ny per capita payment issued on behalf of a minor or ward shall be used only for the needs and in the interests of the minor or ward" meant that the payments had to be made available to the custodial parent to use for the needs of the minors at the time the payments were disbursed by the Tribe.The Tribal Court opined that the provisions of the 2005 Agreed Support Order directing the per capita payments to be made to the non-custodial parent may have been based on a misunderstanding that tribal law prohibited a minor's per capita payments from being distributed to a non-Indian parent.

In any event, the Tribal Court ordered that all future per capita payments "be issued to the custodial parent, [the mother], on behalf of the minor children" and that the per capita payments could only be used for their needs and in their interests.The Tribal Court also ordered the father to transfer the minor children's per capita funds held in their respective accounts with the credit union to the trust fund administered by the Tribe.

Following the Court's January 30, 2009 Order, the father timely filed a notice of appeal and motion for stay.That notice of appeal was never forwarded to the Court of Appeals, apparently because the clerk had earlier and improperly refused to accept a motion filed by the father seeking reconsideration and revision of the Tribal Court's ruling.

Eventually, the clerk did file the motion for reconsideration and the Tribal Court received briefing on the matter, including an amicus brief from the Tribe explaining that it was not possible for the privately held trust funds at the credit union to be transferred into the trust fund managed by the Tribe.According to the Tribe, it automatically deposits approximately two-thirds of every minor child's per capita payment directly into a trust fund managed by the Tribe and distributes the remaining one-third to the child's parents or guardian for the immediate use of the child.The Tribe indicated that no other funds can be deposited into the trust fund managed by the Tribe without disastrous tax consequences for all the minors.The Tribe essentially asked the Tribal Court to rescind its order directing the father to transfer the privately held trust funds to the trustee for the tribally-managed trust fund.

On August 18, 2009, the Tribal Court filed its order effectively reaffirming its January 30, 2009 order.^[4] As with the prior order, the Tribal Court in its August 18 order again directed that

all per capita payments to the minor children, from the date of this order, shall be issued to the custodial parent and care provider, [the mother], on behalf of the minor children and shall be used only for their needs and in their interests[.]

Now, however, in response to the Tribe's concerns articulated in its amicus brief, the Tribal Court, instead of directing that the past per capita payments being held in trust for the children by the father be transferred into the tribally-managed minor's trust accounts, ordered the father to transfer those funds directly to the mother.

On August 28, 2009, the father filed a timely Notice of Appeal arguing that the Tribal Court"issued an inappropriate decision changing the previous order which directed Appellant's father to receive and deposit the children's Per Capita payments into an interest bearing trust fund until each child reaches the age of 18."We have jurisdiction and reverse based on error as to interpretation and/or application of the law.SeePTC 4.16.290 and 4.16.400;see alsoPuyallup Tribe v. Van Every, 8 NICS App. 85, 86-87(Puyallup TribalCt.App. 2008)(standards of appellate review).

II.Analysis

A court's primary duty in interpreting any statute is to discern and implement the intent of the legislative body.Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70(Skokomish TribalCt.App. 2008)."The starting point must always be the statute's plain language and ordinary meaning."Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69(Hoopa Valley TribalCt.App. 2005).When interpreting a code provision, a court considers not only the meaning of the critical word or phrase but also its purpose and placement in the statutory scheme.Skokomish Indian Tribe, 8 NICS App.at 70.

"Where two or more existing code provisions appear to conflict, we have a duty to harmonize them to give effect to each code provision, if by doing so we preserve the sense and purpose of the code provisions and the code as a whole."Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 5(Hoopa Valley TribalCt.App. 2007)."When two code provisions are capable of coexistence, unless the Tribal Council has clearly expressed its intent to the contrary, it is the duty of this court to regard each code provision as effective."Id.

The Tribal Court's August 18, 2009 order that the distributions to the father be deposited into a trust account for minors violated PTC 1.08.130.According to that section:

Any per capita payment that is to be made to a minor or ward shall be made to the person's care provider, and shall be made in accordance with any applicable court order governing custody, guardianship, or other relevant matter. . . .Any per capita payments issued on behalf of a minor or ward shall be used only for the needs and in the interests of the minor or ward.

PTC 1.08.130.Because the per capita payments were not being distributed to the mother, the custodial parent and care provider, to be used for the needs of the children, the Tribal Court...