Fern v. Torres, (2004)

• Decision Date: 26 October 2004
• Docket Number: CHE-CIV-5/01-011
• Parties: LINDSEY FERN, APPELLANT, v. VICTOR TORRES, RESPONDENT.
• Court: Chehalis Tribal Court of Appeals

LINDSEY FERN, APPELLANT, v. VICTOR TORRES, RESPONDENT.

No. CHE-CIV-5/01-011

Chehalis Tribal Court of Appeals

October 26, 2004

SYLLABUS BY THE COURT

Trial court granted non-custodial parent's petition for change in custody.Court of Appeals holds (1) failure of trial court to clearly label relevant findings of fact and conclusions of law as such does not require reversal when the relevant findings and conclusions can be found within the court's order; (2) laws of the State of Washington do not apply where, as here, the tribal code directly addresses the issues before the court; and (3) the record contained substantial evidence supporting the trial court's order.Trial court order affirmed.

Before: Katherine M. Eldemar, Chief Justice; Lisa A Atkinson, Justice; Martin C. Bohl, Justice.

OPINION

AppellantMs. Lindsey Fern(Ms. Fern) petitioned the Chehalis Court in June of 2001 for primary residential custody of "B.T.", the biological minor child of RespondentMr. Victor Torres(Mr. Torres).At that time, Mr. Torres agreed to Ms. Fern's proposed parenting plan.However, in September of 2002, Mr. Tories filed a petition to modify the agreed residential schedule and custody decree, specifically requesting in the petition that the court find adequate cause to revisit the residential schedule.While the record is unclear on this point, we accept that the court found adequate cause to revisit the plan.The court appointed a Guardian ad Litem ("GAL") in November of 2002.The record reflects that Ms. Fern failed to participate in the GAL investigation for several months.The court issued several orders directing that Ms. Fern participate or appear and show cause why she should not be held in contempt for her failure to do so.

The GAL submitted a report to the court in May of 2003.In September 2003the court granted a partial amendment to the parenting plan in an order on motion, allowing additional visitation for Mr. Torres.Ultimately, the court set a trial on the merits of the petition and issued Findings of Fact and Conclusions of Law ('Findings of Fact") in this matter on April 1, 2004.This appeal followed on April 15, 2004.

Ms. Fern challenges several findings and conclusions and the parties agree that the Chehalis Tribal Code does not set out a standard for reviewing the trial court's factual findings.This court will review the findings of fact and conclusions of law and define a standard of review for this purpose.We encourage the Chehalis tribe to define appropriate standards in their laws.Until such time, this appellate court shall adopt the standards as set forth herein.

Ms. Fern urges this court to adopt the complex statutory scheme defined by the State of Washington.We recognize that Washington and Chehalis both lend great weight to the principle of custodial continuity; nonetheless, Chehalis has not adopted Washington law verbatim and this court declines to do so.The Chehalis Tribal Council is the appropriate body to adopt or define broad statutory constructs.

We shall work within the framework of the existing Chehalis code and were the code is silent we shall look to common law principles to fill in the gaps.Title 5 of the Law & Order Code, Appellate Rules, section 5.03.030(Scope of the Review) reads as follows:

The Court of Appeals shall limit its review to 1) the record of proceedings from the Chehalis Court of Justice, 2) errors of law and procedure raised by the Ms. Fern in his or her written brief, and 3) oral argument presented at a hearing before the Court of Appeals.

The code sets no standard to review the trial court's factual findings.We deduce, however that this is a mere oversight as the code directs us to review errors of law.A fact finder commits an error of law when she makes findings that are unsupported in the record.Consequently, a review of trial court facts must be anticipated.We believe that any other interpretation of this language would be strained and would place the review of trial court facts beyond our jurisdiction; this interpretation would defy logic.Consequently, we deduce that Chehalis intended this court to review factual findings for accuracy.We shall therefore set a standard to review factual findings until Chehalis clarifies the standard with further legislation.

STANDARD OF REVIEW

We shall examine the lower court's findings to determine whether the court abused its discretion in making a particular finding.Abuse of discretion is àsynonymous with a failure to exercise a sound, reasonable, and legal discretion.It is a strict legal term indicating that the appellate court is of the opinion that there was commission of an error of law by the trial court.It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment—one is that clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law.State v Draper,83 Utah 115, 21 P.2d 39;Ex Parte Jones,246 Ala. 433, 20 So.2d 859, 862.Abuse of Discretion, page 10, Black's Law Dictionary, Sixth Edition, 1990, emphasis added.

In order to determine if the trial court abused its discretion in making a particular finding, we examine the record to determine whether the court's findings are supported by substantial evidence.The substantial evidence test is nearly universally applied in state, federal and tribal courts.It is an acceptable and well reasoned standard for reviewing trial records.The Tulalip Court of Appeals has ruled,

When reviewing the findings of fact of the lower court, this Court must find some abuse of discretion on the part of the judge before we may disturb the lower court order.And abuse of discretion does not exist if the findings of the judge are supported by substantial evidence.Davis v. Tulalip Tribes, 5 NICS 11, 14(August 1997).^[1]

Substantial evidence has been defined in varying ways in many jurisdictions but the essence of the standard is universal.It is "evidence which would convince an unprejudiced thinking mind of the truth of a declared premise."See, Lower Elwha v Elofson, 4 NICS App. 99at 103(Lower Elwha 1996), citingFreeburg v Seattle,71 Wash.App. 367, 859 P. 2d 610(1993).Alternatively, "Substantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion."See, Walker v North Carolina Dep't of Human Resources,100 N.C.App. 498, 503, 397 S.E.2d 350, 354(1990).If substantial evidence is lacking, the fact finder will be deemed to have abused her discretion and committed an error of law.

The abuse of discretion standard, as opposed to the de novo standard, affords appropriate deference to the fact finder recognizing that she has examined the witnesses first hand and is therefore better equipped to make determinations relative to credibility.Consequently, there may be substantial evidence to support findings for either side of a contested issue yet we should refrain from disturbing the trial court's findings even if, in the balance, we disagree with them.This is why substantial evidence is often defined as "evidence which a reasoning mind would accept as sufficient to...