In Re: Absher Children Case

• Decision Date: 05 February 2001
• Docket Number: CA2000-03-057,01-LW-0497
• Citation: In Re: Absher Children Case, 01-LW-0497, CA2000-03-057 (Ohio App. Feb 05, 2001)
• Parties: IN RE: ABSHER CHILDREN CASE
• Court: Ohio Court of Appeals

IN RE: ABSHER CHILDREN

No. CA2000-03-057

01-LW-0497 (12th)

Court of Appeals of Ohio, Twelfth District, Butler County.

February 5, 2001

Thomas G. Eagle, 3737 S. Dixie Highway, Franklin, Ohio 45005, for appellant

Mary K Dudley, P.O. Box 1134, Hamilton, Ohio 45012, for appellee

OPINION

WALSH J.

Respondent-appellant, putative father Lloyd Arneach, Jr. filed a motion for reconsideration of our decision rendered on December 4, 2000, contending that this court erred in one of its holdings. We find that Arneach's motion has merit and his motion for reconsideration is hereby granted.

Arneach is an enrolled member of the Eastern Band of Cherokee Indians (the "Tribe") and resides on the Eastern Cherokee Indian Reservation in Cherokee, North Carolina.^[1] The biological mother of the parties' three children (William, born in 1995; Samuel, born in 1997; and Sandra, born in 1998) is petitioner-appellee, Amy Reed, a non-Indian. Arneach and Reed are not married. From March 1997 to February 1998, Reed, William, and Samuel lived with Arneach on the reservation in Cherokee, North Carolina. In February 1998, Reed, then pregnant with Sandra, moved away from Arneach to Butler County, Ohio taking William and Samuel with her. In April 1998, Sandra was born in Butler County.

On June 11, 1998, Arneach filed a complaint in the Tribal Court of Indian Offenses in Cherokee ("tribal court"), identifying the three children, alleging them to be his, and seeking custody of them. Reed was served with summons in Ohio in the tribal court action on June 29, 1998. On July 10, 1998, Reed filed a complaint for custody of the children in the Butler County Court of Common Pleas, Juvenile Division ("trial court"). Reed's complaint listed Arneach as the children's father and referred to a custody proceeding pertaining to the children having been filed in North Carolina.

Arneach moved the trial court to dismiss Reed's case on jurisdictional grounds. By judgment entry filed October 16, 1998, the trial court denied Arneach's motion, finding that it, rather than the tribal court, had jurisdiction over the custody proceedings. The trial court specifically found that "this [was] not a custody proceeding as defined in 25 USC Section 1903(1) [aka the Indian Child Welfare Act (the "Welfare Act")]." In December 1998, the trial court granted legal custody of the children to Reed.

On appeal, Arneach argued, inter alia, that the trial court erred by exercising jurisdiction over the custody proceedings. This court rejected Arneach's argument as follows:

Arneach's complaint in the tribal court was served upon Reed on June 29, 1998, prior to the service of her complaint upon Arneach. This appears to invoke the common law rules concerning whether the pendency of a suit in one state abates an action subsequently brought in another state when the later action is between the same parties and involves the same subject matter. *** However, the enabling legislation [the Welfare Act] under which Arneach commenced his custody action in the tribal court limits the jurisdiction of that court in child custody proceedings to cases involving foster care placement, termination of parent-child relationships, pre-adoptive placements, and adoptive placement. It follows that because this case does not raise issues of foster care placement, termination of parent-child relationships, pre-adoptive or adoptive placement, the tribal court does not have jurisdiction over this matter. We do not, therefore, have a conflicting jurisdiction question. The question that does remain, however, is whether the trial court has jurisdiction.

This court went on to find that the trial court properly exercised jurisdiction over Sandra pursuant to R.C. 3109.21(E) and 3109.22(A), but reversed and remanded the trial court's exercise of jurisdiction over William and Samuel for failing to make the necessary findings as required under R.C. 3109.22(A).

The primary test applied to motions for reconsideration is whether the motion calls to the court's attention an obvious error in its decision or raises an issue for consideration which was either not considered at all or not fully considered when it should have been. Matthews v. Matthews (1981), 5 Ohio App.3d 140, 143.

In his motion for reconsideration, Arneach asks this court to reconsider the issue of the tribal court's jurisdiction to hear the parties' custody dispute. Specifically, Arneach argues that it was error for this court to find that the enabling legislation under which Arneach filed his custody action in the tribal court was the Welfare Act because Arneach's custody action in the tribal court neither relied on nor mentioned that act. Rather, Arneach argues that his custody action in the tribal court was based upon the general federal statute relating to Indian affairs, Section 2 et seq., Title 25, U.S.Code, its regulations permitting tribes to create courts and judicial systems, Section 11.100 et seq., Title 25, C.F.R., and the Code of the Eastern Band of Cherokee Indians (the "Cherokee Code"). Arneach argues that as a result, the tribal court acquired proper jurisdiction first, and that Reed's case in the trial court should be dismissed.

"It is a fundamental rule that, as between courts of concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals." State ex rel. Miller v. Lake Cty. Common Pleas Court (1949), 151 Ohio St. 397, 400. "Service of process is *** a condition precedent to vesting of jurisdiction in determining which of two courts has the exclusive right to adjudicate the whole case." State ex rel. Balson v. Harnishfeger (1978), 55 Ohio St.2d 38, 39-40.

Before we address Arneach's arguments, we reiterate our previous holding that the trial court has proper jurisdiction over the parties' daughter. As we stated in Absher I, at the time Reed filed her complaint in the trial court, Sandra, who was born in Butler County, had resided there with Reed since her birth, and was less than six months old. Ohio was thus Sandra's home state for purposes of the custody proceedings. See R.C. 3109.22(A)(1) and 3109.21(E).

We also reiterate for the reasons set forth in Absher I that the Welfare Act does not apply to the custody proceedings at bar. However, this court's finding that Arneach filed his custody action in the tribal court based upon the Welfare Act is erroneous. A review of Arneach's custody complaint shows that Arneach did not refer to or mention the act. The question remains, however, as to whether the tribal court has jurisdiction over the custody proceedings regarding the parties' sons, William and Samuel.

Arneach contends that the general federal statute relating to Indian affairs, Section 2 et seq., Title 25, U.S.Code, its regulations permitting tribes to create courts and judicial systems, Section 11.100 et seq., Title 25, C.F.R., and the Cherokee Code give the tribal court jurisdiction over William and Samuel.

Section 2 of Title 25 of the U.S. Code provides that "[t]he Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, *** have the management of all Indian affairs and of all matters arising out of Indian relations." Section 11.100 of Title 25 of the Code of Federal Regulations establishes a Court of Indian Offenses for the Eastern Band of Cherokee Indians and provides in relevant part that "[t]he governing body of each tribe occupying the Indian country over which a Court of Indian Offenses has jurisdiction may enact ordinances which, when approved *** shall be enforceable in the Court of Indian Offenses having jurisdiction over the Indian country occupied by that tribe ***." Section 11.103(a), in turn, provides that "each Court of Indian Offenses shall have jurisdiction over any civil action arising within the territorial jurisdiction of the court in which the defendant is an Indian, and of all other suits between Indians and non-Indians which are brought before the court by stipulation of the parties."

Chapter 1, Article 1, Section 1-2. of the Cherokee Code, in turn, provides that (b) The Cherokee Court of Indian Offenses *** shall exercise jurisdiction over the domestic relations of all individuals residing on Cherokee trust lands where either spouse, parent or child is a Tribal member, or where a nonmember spouse, parent and child are all living on Indian trust land. Jurisdiction shall be exercised for divorce, separation, child custody, support, alimony, adoption and paternity.

***

(h) The Cherokee Court of Indian Offenses *** shall retain personal jurisdiction over persons or entities resident on Cherokee trust lands for a period of six months after such persons or entities move from Cherokee trust lands.

Thus, pursuant to the Cherokee Code, the tribal court clearly has jurisdiction over custody proceedings regarding William and Samuel. However, in Absher I, this court held that the trial court may also have jurisdiction over the parties' sons. We only reversed and remanded the trial court's exercise of jurisdiction over the parties' sons because of the trial court's failure to make the necessary findings as required under R.C. 3109.22(A). Custody proceedings over the parties' sons thus may involve concurrent jurisdiction between the tribal court and the trial court.

Indian tribes were once considered by the United States Supreme Court as "distinct political entities capable of managing...