In re Custody of R.W.O.E., (2001)

• Decision Date: 25 May 2001
• Docket Number: CIV. APP. 98-377
• Citation: In re Custody of R.W.O.E. (Crow Ct. of App. in And For the Crow Indian Reservation Crow Agency, Montana 2001)
• Parties: IN RE THE CHILD CUSTODY OF: R. W. O. E. ESLEY OLD ELK, PETITIONER/APPELLEE, v. MARY MATT, RESPONDENT/APPELLANT.
• Court: Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana

IN RE THE CHILD CUSTODY OF: R. W. O. E. ESLEY OLD ELK, PETITIONER/APPELLEE, v. MARY MATT, RESPONDENT/APPELLANT.

CIV. APP. No. 98-377

Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency, Montana

May 25, 2001

OPINION

¶1 This is an appeal by the mother, RespondentMary Matt, from the Order of the Tribal Court(Stewart, J.) entered on June 11, 1999, awarding permanent custody of the parties' child to his father, Petitioner Esley Old Elk.Under the Tribal Court's Order, the mother is entitled to visitation on alternating weekends and holidays and for two weeks during the summer.

¶2 After a careful review of the record in this and related cases, we hold that the Crow Tribal Court properly exercised jurisdiction of the father's custody petition, and affirm its order granting permanent custody to the father.A.Facts and Course of Proceedings

¶3 The facts recited in this Opinion are the undisputed facts as set forth in the parties' pleadings, videotape testimony at the hearing held on April 16, 1999, and the statements of proceedings filed by the parties pursuant to Rule 7(b) of the Crow Rules of Appellate Procedure.This court has also examined the documents on file in CauseNo. 98-369, in Mary's Petition to Register and Enforce Foreign Order which was granted by the Crow Tribal Court on December 11 1998, as discussed more fully below.Because of the jurisdictional issue involved in this case, we will review the previous custody proceedings in some detail.

¶4Petitioner Esley Old Elk is a member of the Crow Tribe.At all pertinent times, he resided in Lodge Grass on the Crow Reservation, and is a truck driver by occupation.

¶5RespondentMary Matt is a member of the Northern Cheyenne Tribe.During the proceedings in this case, she resided in Ronan, Montana on the Flathead Reservation, and was studying nursing at the Confederated Salish and Kootenai College in Pablo.

¶6The parties' child whose custody is at issue in this appeal was born on September 30, 1994 while the parents resided together in Billings.He is an enrolled member of the Crow Tribe.When the petition was filed in this case, he was with his mother and his older brother(who has a different father) in Ronan.

¶7 The first court case involving the custody of the parties' child was a proceeding in the Crow Juvenile Court begun in 1996.Following a hearing attended by both parents and both grandmothers, and with the agreement of all involved, the Crow Juvenile Court(White, C.J.) concluded that proceeding by ordering that the child be returned to his natural mother in Billings.In re.Matter of R.O.E.,(DOB 9/30/94), Juv.No. 96-313, Findings of Fact, Conclusions of Law and Order (Crow Juv. Ct., March 7, 1997).After July 1, 1997, the child began residing primarily with Esley and his family in Lodge Grass.

¶8 In October 1997, Mary planned to enlist in the Army.A custody agreement was reached whereby Esley had "joint custody" with the child's maternal grandmother who resided in Busby, Montana, on the Northern Cheyenne Reservation.According to the agreement, Esley had "primary physical custody commencing October 1 1997," and the maternal grandmother was to have custody for six weeks in the summer, one week around Christmas, and two weekends per month.Esley's signature on the agreement was notarized on October 23, 1997.The next day the maternal grandmother petitioned the Northern Cheyenne Tribal Court to recognize the custody agreement.Following a hearing attended by Mary and her mother, with Esley appearing only by way of his notarized statement, the Northern Cheyenne Tribal Court entered an order granting joint custody of the child pursuant to the parties' agreement "until he reaches the age of majority or until emancipation occurs[.]"In re.Matter of C.M.B. and R.W.O.E Joint Custody Order, JC97-309(N. Cheyenne Tribal Ct., Oct. 24, 1997).Pursuant to this joint custody arrangement, Esley had primary physical custody of the child until shortly before Esley filed his petition in the present case.

¶9 After Mary was unable to enlist in the Army due to medical reasons, she decided to go to back to school.In June 1998, Mary requested the Northern Cheyenne Tribal Court to modify the joint custody order entered the previous October, and to give her sole custody.By affidavit, she stated that child was being cared for primarily by Esley's relatives, that they interfered with the maternal grandmother's visitation rights, and that she was concerned that the child was being neglected.On July 13, 1998, the Northern Cheyenne Tribal Court entered an order granting temporary custody of the child and his brother to Mary, "until the Court notifies the fathers and schedules and [sic] hearing on this matter."In re.Matter of C.B. and R. W.O.E., No. JC97-309(N. Cheyenne Tribal Ct., July 13, 1998).The language quoted from the order confirms Esley's contention that he never received notice of Mary's modification request before the temporary order was issued.

¶10 On December 11, 1998, Mary petitioned the Crow Tribal Court to recognize the Northern Cheyenne Tribal Court's temporary custody order.In re.Matter of R.W.O.E., No. 98-369.Mary stated in her affidavit that she had established residency in Ronan to attend school, and that Esley and his family were refusing to allow her and her mother to see the child or to honor the modified court order.Mary also filed copies of the custody agreement and orders from the Northern Cheyenne Tribal Court, and a letter from her mother stating that the child needed to be with his mother.The same day, the Crow Tribal Court(Birdinground, C.J.) entered an Order granting Mary's petition and recognizing the Northern Cheyenne Tribal Court's order of July 13, 1998.The Crow Tribal Court's order also directed the Crow Tribal Police to assist Mary in regaining physical custody of the child until the Northern Cheyenne Tribal Court could conduct further proceedings.In re.Matter of R.W.O.E., No. 98-369, Order to Register and Enforce Foreign Order (Crow Tribal Ct., Dec. 11, 1998).The file in that case indicates that no prior notice was given to Esley and no hearing was held before the Tribal Court granted Mary's petition.On the basis of the Tribal Court's order, it appears that Mary took the child back to Ronan with her.

¶11 Esley filed his Petition for Child Custody in the present case, Civil No. 98-377, on December 15, 1998, four days after the Tribal Court's order in No. 98-369 was served on him.In the jurisdictional allegations of his petition, Esley stated under oath that the child had resided with him in Lodge Grass for approximately the past 2 years, and that the child was currently absent from the Reservation because of his removal by the person claiming custody.

¶12 Mary immediately moved the court to dismiss Esley's petition based on the Crow Tribal Court's Order of December 11, 1998 in Case No. 98-369, recognizing the Northern Cheyenne Tribal Court's order that awarded temporary custody to her.See Motion to Dismiss dated January 22, 1999.After giving notice to the parties, the Tribal Court(Gros-Ventre, J.) held a hearing on Mary's dismissal motion on February 19, 1999.Mary failed to appear at the hearing.Esley appeared with his lay counsel, and argued that the Crow Juvenile Court's 1996 order established the Crow courts' exclusive jurisdiction over the child's custody.Following the hearing, the Tribal Court denied Mary's motion to dismiss, vacated the Tribal Court's recognition order in No. 98-369, granted temporary custody to Esley, and ordered Mary to show cause at a hearing on March 10 why permanent custody should not be awarded to Esley.See Temporary Custody and Order to Show Cause, February 19, 1999.

¶13 At Mary's request, the March 10 hearing was continued until April 16, 1999 because of her final exams.Mary appeared with counsel via telephone at the April 16 show cause hearing, and Mary's mother and Esley were present to give testimony.At the close of the hearing, the Tribal Court(Stewart, J.) continued the hearing until May 5, ordered Mary to appear personally for that hearing, and ordered the parties to file their briefs by April 30.

¶14 After the parties filed their briefs, Mary personally appeared with her counsel and gave testimony at the final hearing on May 5.In her brief and in her testimony, Mary expressed a preference for sole custody of the child, but offered a joint custody parenting plan as an alternative.Under Mary's proposed plan, she would have primary physical custody.The father would have custody on alternating holidays during the school year and for six weeks during the summer.The father would be allowed liberal visitation during the weekends, or the option of sole custody during alternating weekends.See Parenting Plan filed with Mary's Brief in Support of Joint Custody dated April 30, 1999.

¶15 The Crow Tribal Court(Stewart, J.) entered its final order on Esley's custody petition on June 11, 1999.The court ordered that it was in the child's best interest for Esley to have custody.The Tribal Court also ordered that Mary have visitation on alternating weekends and holidays, and for two weeks during the summer.It is from this order that Mary here appeals.B.Jurisdiction

¶16 In the first issue she raises on appeal, Mary argues that the Tribal Court's order was made on unlawful procedure because the custody dispute was already conclusively settled by the Tribal Court's previous order in JuvenileCase No. 98-369, which recognized the Northern Cheyenne Tribal Court's temporary custody order, and which Esley did not appeal.In response, Esley argues that the Crow Tribal courts assumed original jurisdiction in the matter of the child's custody when the...