Langdeau v. Langdeau

• Decision Date: 11 June 2008
• Docket Number: No. 24593.,No. 24546.,No. 24547.,24546.,24547.,24593.
• Citation: 2008 SD 44,751 N.W.2d 722
• Parties: Deann Leslie LANGDEAU, Plaintiff and Appellant, v. Jeffrey Jay LANGDEAU, Defendant and Appellant. Jeffrey Jay Langdeau, Petitioner and Appellee, v. Deann Leslie Langdeau, Respondent and Appellant.
• Court: South Dakota Supreme Court

751 N.W.2d 722

2008 SD 44

Deann Leslie LANGDEAU, Plaintiff and Appellant, v. Jeffrey Jay LANGDEAU, Defendant and Appellant.

Jeffrey Jay Langdeau, Petitioner and Appellee, v. Deann Leslie Langdeau, Respondent and Appellant.

No. 24546.

No. 24547.

No. 24593.

Supreme Court of South Dakota.

Considered on Briefs February 12, 2008.

Decided June 11, 2008.

Patricia A. Carlson, Pierre, South Dakota, Attorney for plaintiff and appellant.

Jamie L. Damon, Pierre, South Dakota, Attorney for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] This appeal arises from issues related to simultaneous divorce proceedings brought in the South Dakota Sixth Judicial Circuit Court and the Lower Brule Sioux Tribe Reservation Tribal Court. On May 2, 2007, the circuit court entered an order dismissing the divorce complaint (# 24546) and temporary protection order (# 24547) filed by Deann Langdeau (Deann). On June 18, 2007, the circuit court entered an order recognizing tribal court orders dated May 11, 2007, associated with the tribal court divorce petition of Jeffrey Jay Langdeau (Jay). We affirm in part, reverse in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Deann and Jay were married on May 12, 1998. Deann is a non-Indian. Jay is an enrolled member of the Lower Brule Sioux Tribe (LBST). The couple resided together on fee land within the external boundaries of the Lower Brule Sioux Tribe Reservation (the "Reservation") from January 1998 until February 22, 2007. Two children, ages nine years and six years, were born of the marriage and were either enrolled or eligible for enrollment in the LBST.¹

[¶ 3.] Deann left the Reservation with the children on February 22, 2007 and took up residence with her mother in Onida South Dakota. On February 27, 2007, Deann filed a petition for divorce with the circuit court in Lyman County. On the same day, Jay was served with the summons and complaint. On February 28, 2007, Deann filed a petition and affidavit in Sully County for a domestic abuse protection order against Jay. In her affidavit, Deann alleged multiple occasions in which Jay physically abused or endangered her and the children. On the same day, the circuit court signed an ex parte temporary protection order, requiring Jay to have no contact with Deann or the children.² Jay filed for divorce in tribal court on February 28, 2007. Deann received service of Jay's tribal divorce petition on the same day. Additionally on February 28, the tribal court entered an ex parte order on Jay's ex parte motion for interim relief. The order established a visitation schedule with the children for Jay and directed Deann to provide Jay with copies of certain financial documents and to return a specified amount of cash to their bank account.

[¶ 4.] Jay filed a motion to dismiss the circuit court's ex parte temporary protection order for lack of jurisdiction. Following a March 16, 2007 hearing in Sully County, the circuit court denied Jay's motion, but established its own visitation schedule. On April 5, 2007, a second hearing in regard to the temporary protection order was held; after which, the temporary protection order was dismissed in Sully County and reissued in Lyman County. The reissued order was entered in Lyman County on April 6, 2007.

[¶ 5.] Jay filed motions in Lyman County to dismiss Deann's divorce action and the temporary protection order for lack of jurisdiction and to enforce the visitation schedule established earlier by the tribal court. A motions hearing was conducted on April 10 and 11, 2007; after which, the circuit court dismissed the divorce action and the circuit court's ex parte temporary protection order in Lyman County. The circuit court adjudged that under the Uniform Child Custody Jurisdiction Act, the court did not have jurisdiction over the divorce and child custody because for most of the six months preceding Deann's divorce petition, the children had lived within the external boundaries of the Reservation. Further adjudging South Dakota to be an inconvenient forum and thereby declining jurisdiction, the circuit court determined the Reservation to be the home of the parties and therefore, the appropriate forum for the divorce and all related matters. The circuit court's order was entered on May 2, 2007 without memorandum opinion, findings of fact or conclusions of law.

[¶ 6.] On April 11, 2007, Jay filed with the tribal court, a petition and affidavit for ex parte order of protection against Deann. On the same day, the tribal court issued the ex parte order of protection, including notice of hearing to be held April 12, 2007, which was served upon Deann. On April 12, 2007, by way of special appearance, Deann filed a petition and motion contesting the adequacy of service of process and notice for the April 12 hearing. In the alternative, Deann requested a continuance.³

[¶ 7.] On April 13, 2007, the tribal court entered an ex parte temporary order of protection against Deann. The order required Deann to have no contact with Jay. It also reiterated the provisions of the tribal court's February 28, 2007 ex parte order for interim relief pertaining to Jay's visitation with the children and demand for Deann's return of cash and documents. See supra ¶ 3. On April 19, 2007, the tribal court renewed its ex parte temporary order of protection including the provisions from the earlier ex parte order for interim relief. A hearing date on the ex parte order was set for May 2, 2007.

[¶ 8.] At the May 2, 2007 tribal court hearing, Deann appeared through legal counsel and requested a continuance. The tribal court denied Deann's request and proceeded forward by issuing an order of protection and granting in part Jay's earlier motion for interim relief as to visitation. The interim-relief order set out that Jay's visitation should occur each weekend, beginning with 6:00 p.m. on Friday, May 4, 2007. However, while the schedule provided that the oldest child was supposed to be returned to Deann the following Sunday at 4:00 p.m., it required the youngest child to remain with Jay.⁴ According to the order, the remaining issues raised by Jay's ex parte motion for interim relief were scheduled for hearing on May 15, 2007.

[¶ 9.] The tribal court orders directed Deann and Jay to exchange the children in the parking lot of Oahe, Inc. in Pierre, South Dakota. The first exchange did not occur as planned.⁵ The tribal court then entered amended orders on May 11, 2007, which set out the lobby of the Pierre Police Department as the exchange location commencing Friday, May 11, 2007 at 6:00 p.m. Jay alleged that Deann did not show up for this exchange at the appointed time and place.

[¶ 10.] On May 21, 2007, Jay filed with the circuit court a motion to recognize the tribal court's amended orders of May 11 and to obtain authorization to have South Dakota law enforcement enforce the tribal court orders. The circuit court heard the matter on June 4, 2007 and thereafter, entered its order recognizing the tribal court's May 11, 2007 orders. No corresponding memorandum opinion, findings of fact or conclusions of law were entered. Subsequent to the proceedings giving rise to the issues in this case, Jay was granted a default divorce judgment by the tribal court.

[¶ 11.] We consider five issues raised by Deann on appeal:

1. Whether the circuit court erred when it concluded that based on the residency of the parties and the children that it did not have jurisdiction to hear the child custody and divorce proceedings where Deann filed for divorce in Lyman County five days after moving off the Lower Brule Sioux Tribe Reservation, taking up residence in South Dakota.

2. Whether under SDCL 26-5B-204(a), the circuit court is required to exercise temporary emergency jurisdiction as to child custody when a prima facie case has been made that children or a parent have been subjected to abuse or mistreatment.

3. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it declined jurisdiction after Deann alleged abuse and mistreatment as a basis for temporary emergency jurisdiction, pursuant to SDCL 26-5B207(b).

4. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it dismissed its temporary protection order.

5. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it recognized the May 11, 2007 tribal court protection order and order for interim relief.

STANDARD OF REVIEW

[¶ 12.] We review a circuit court's decision whether to exercise jurisdiction over child custody and divorce actions under the abuse of discretion standard. See generally, Regalado v. Mathieson, 2004 SD 87, ¶ 5, 684 N.W.2d 67, 70 (reiterating this Court's application of the abuse of discretion standard to circuit court decisions declining jurisdiction in favor of more convenient forums under the predecessor act to our currently enacted Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)) (citing Ford v. Ford, 2002 SD 147, ¶ 7, 655 N.W.2d 85, 86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 16, 591 N.W.2d 798, 804 (citation omitted)), see also Lustig v. Lustig, 1997 SD 24, ¶ 5, 560 N.W.2d 239, 241 (citations omitted).

Questions of law, including statutory construction, we review de novo. As the questions here are primarily matters of statutory interpretation, we review them under the de novo standard. A court's failure to consider the factors relevant to the principle of inconvenient forum under the [UCCJEA] is an abuse of discretion.

Lustig, 1997 SD 24, ¶ 5, 560 N.W.2d at 241 (internal citations omitted).

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it...