In re Marriage of Candace Pease Not Afraid, (2001)

• Decision Date: 14 March 2001
• Docket Number: CIV. APP. 97-011
• Parties: IN RE MARRIAGE OF: CANDACE PEASE NOT AFRAID, PETITIONER/APPELLANT, v. WAYNE R. NOT AFRAID, RESPONDENT/APPELLEE.
• Court: Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana

IN RE MARRIAGE OF: CANDACE PEASE NOT AFRAID, PETITIONER/APPELLANT, v. WAYNE R. NOT AFRAID, RESPONDENT/APPELLEE.

CIV. APP. No. 97-011

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

March 14, 2001

(Tribal CourtCiv. No. 96-416)

OPINION

¶1 This is an appeal by Candace Pease Not Afraid from the Findings of Fact, Conclusions of Law, and Decree entered by the Tribal Court(Stewart, J.) on February 20, 1997, in the matter of the dissolution of her marriage to Wayne Not Afraid.

¶2 For the reasons explained in this Opinion, this court must remand this case to the Tribal Court to determine the amount that Wayne's estate or heirs shall pay to Candace for her equitable share of the parties' home.Facts and Course of Proceedings

¶3The parties were married in 1964, and their children were grown up when this action was filed.The only issue in the Tribal Court dissolution proceedings was the division of property, specifically the parties' home.According to the pleadings and the documents filed by the parties, the home was purchased through the Crow Tribal Housing Authority pursuant to a Homebuyers Ownership Agreement for HUD Turnkey III Project dated July 1, 1971.

¶4 That agreement was signed by Wayne as "Homebuyer" and Candace as "Homebuyer's spouse."The parties resided there and raised their children in the home from the time it was built in 1971.

¶5 The home is located on an approximately 1-acre tract within a 5-acre homesite on trust land owned by Wayne and Cyril Not Afraid.The homesite was leased to Wayne under a 25-year lease dated May 18, 1971, with all rental fees waived.The land, and later the house, were also used in the Not Afraid family's cattle ranching business.

¶6 Candace filed her petition for dissolution of marriage on December 3, 1996, requesting that the house be awarded to her.In her petition, verified under oath, Candace stated that the house was valued at approximately $18,000.Wayne 's answer requested that the house be awarded to him because it was located on his trust land and was the headquarters of his family's ranching business.

¶7 The Tribal Court held a hearing on January 29, 1997, which was attended by both parties and their lay counselors.The husband's counsel argued that the established procedure for homes on which there was still an outstanding debt to the Housing Authority was to award the home to the landowner.Under this procedure, according to the husband's counsel the house should be awarded to the husband in this case, and the husband could be ordered to pay the wife for her share of the home.The wife's counsel disputed whether this was the preferred procedure, and argued that the wife's 33 years of contributions to the marriage could not be overlooked pursuant to Crow Tribal Code§ 10-1-120, so the home should therefore be awarded to the wife.The wife's counsel also reserved the question of maintenance (alimony) payments to the wife pending disposition of the home.At the close of the hearing, the Tribal Court granted the dissolution of marriage and took the parties' dispute over the award of the house under advisement.

¶8 The Tribal Court issued its findings, conclusions and decree on February 20, 1997, awarding the home and the household furnishings to Wayne.The court's findings of fact and conclusions of law did not specifically address or explain why the home and all the furnishings were awarded to the husband.The decree did not award anything to Candace.

¶9 Candace immediately filed a motion for disqualification on the grounds of ex parte contacts between the court and Wayne's mother.That motion was denied by Chief Judge White on February 21, 1997.Candace filed her Notice of Appeal on March 5, 1997.On March 10, she filed a motion requesting an order allowing her to remain in the home while the appeal was pending.The Court of Appeals entered an Interim Order^[1] on March 11, 1997, directing Candace to pursue her motion as a motion for stay of the decree with the Tribal Court pursuant to Rule 18(b) of the Crow Rules of Civil Procedure.The Tribal Court denied the motion for stay on March 14, 1997.

¶10 On appeal, Candace's objection to the substance of the Tribal Court's decree is that it failed to award Candace a fair share of the value of the parties' home in light of the parties' 33-year marriage.Candace also argued that the Tribal Court erred by awarding the household furniture to Wayne, because she paid for it and was still making payments.Wayne never filed a brief or statement in response, and no further proceedings have taken place in the Court of Appeals.

¶11The court takes judicial notice that Mr. Not Afraid passed away on January 17, 2000.Discussion

¶12 The division of property acquired during a marriage when no minor children are involved is governed by Section 10-1-120(1) of the Crow Tribal Code, which provides in pertinent part (emphasis added):

In a proceeding for a dissolution of a marriage . . . , the court without regard to marital misconduct, shall . . . finally equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both[.][I]n making the apportionment, the court shall consider the duration of the marriage, and prior marriage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and source of income, vocational skills, employability, estate liabilities and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income.The court shall also consider the contribution or dissipation of value of the respective estates, and the contribution of a spouse as a homemaker or to the family unit.

This Tribal law was apparently based on the Uniform Marriage and Divorce Act (the "UMDA").It is similar to the law in many States, and nearly identical to the Montana law as originally adopted in 1975.SeeMontana Code Annotated Section 40-4-202;see also, Clark, Homer H., The Law of Domestic Relations in the United States§ 15.1 at p. 591 n.12.Thus, in interpreting Section 10-1-120 of the Tribal Code, this court will seek guidance in the general American domestic relations law as developed by the state courts including Montana Supreme Court,^[2] to the extent that is does not conflict with Crow customs and tradition.

¶13 The preferred approach under the UMDA, and followed in the Tribal Code, is to provide for the financial needs of the spouses after dissolution primarily by the division of property rather than by awarding alimony (or "maintenance").Id.§ 16.1at p. 621;see also, Crow Tribal Code§ 10-1-121(court may award maintenance only if certain conditions are met).Trial courts generally have broad discretion in deciding how to equitably apportion property between the spouses, and their decisions will not be reversed on appeal unless there was an abuse of that discretion or an erroneous application of the law.Clark, supra,§ 15.3at p. 600.

¶14 Based on the record in the present case, it appears that the Tribal Court's decree awarded essentially all the disputed marital property to the husband.Such a disposition of marital property does not appear to be "equitable" in the circumstances shown on the record of this case.The record does not reflect how the parties contributed to the property during the marriage, or their economic prospects following the dissolution, which are two factors that the court is directed to take into account pursuant to Section 10-1-120(1) of the Tribal Code, quoted above.However, the same Code section also directs the court to take a spouse's contribution into account regardless of whether she earned income by working outside the home, or instead contributed to the marriage as a homemaker.

¶15 In addition, the factors mentioned in the Code that are clear from the record – the long duration of the marriage and the lack of any maintenance or alimony award – further support an award of some property to the wife.As for the first of these factors, the parties were married when they were 17 and 18 years old, and were married for almost 33 years.They built their home together and occupied it for more than 25 years before the dissolution.As for the second factor, i.e., the possibility for compensating Candace by monthly payments of maintenance, Candace's claim for a share of the home is supported by the fact that no maintenance was awarded.

¶16 The Tribal Court undoubtedly decided to award the home to the husband because it was located on his family trust land and used for his ongoing cattle business.The Tribal Court clearly had the discretion to decide who should keep the home, and the Tribal Court's acceptance of the husband's arguments in this regard was not an abuse of its discretion.However, just because it was appropriate for...