Marriage of Purnel, In re

• Decision Date: 31 January 1997
• Docket Number: No. E015369,E015369
• Citation: 52 Cal.App.4th 527,60 Cal.Rptr.2d 667
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 812, 97 Daily Journal D.A.R. 1139 In re the MARRIAGE OF Randy and Debrah PURNEL. Randy PURNEL, Respondent, v. Debrah PURNEL, Appellant.

Page 667

60 Cal.Rptr.2d 667

52 Cal.App.4th 527, 97 Cal. Daily Op. Serv. 812,

97 Daily Journal D.A.R. 1139

In re the MARRIAGE OF Randy and Debrah PURNEL Randy PURNEL, Respondent, v. Debrah PURNEL, Appellant.

No. E015369.

Court of Appeal, Fourth District, Division 2, California.

Jan. 31, 1997.

As Modified on Denial of Rehearing Feb. 26, 1997.

[52 Cal.App.4th 528] Alexander & Karshmer, Berkeley, and Richard A. Cross, Los Angeles, for Appellant.

Richard C. Houghton and Virginia Criste, Palm Desert, for Respondent.

OPINION

McDANIEL, Associate Justice ^*.

In a post-judgment proceeding, following an earlier decree of dissolution of the marriage of the parties, the trial court ordered Debrah Purnel (wife), the non-custodial parent of the parties' three minor children, to make payments of $1,063 per month per child, respectively, for their support. Such order reflected a DissoMaster calculation which showed wife's "net guideline income before support" to be $9,888 per month.

Wife does not challenge the DissoMaster figure nor how it was calculated. Neither does she challenge the amount of the support order itself. However, she is unwilling to share the fruits of her affluence with her own children. Hence, the appeal. To characterize wife's attitude, as stated in one of the written filings on her behalf in the trial court, wife "simply does not want to submit to State Jurisdiction in this regard. She is not being obstinate--it is a federally protected right not to have State Courts interfere in allocation of Indian Land Trust monies." As implied by the foregoing, wife is a Native American and a member of the Agua Caliente Band of the Cahuilla Indians. As such, she is the beneficiary of five lucrative leases of her Indian Trust Allotment lands.

Wife's principal position on appeal, as stated in her opening brief, is that the State of California has no jurisdiction "to tax Indian reservation lands or the income earned by Indians from activities carried on within the boundaries of the reservation."

Such contention is not responsive to any issue presented by this record. In our view, there can be no question that the trial court had jurisdiction to make the child support order it made here. Moreover, such order, by its terms, expressly announced that the court was not involving itself in wife's trust allotment or the income therefrom. The minute order preceding issuance of the final written order fixing the amount of child support recited, "[t]he court ... finds that an order for [child] support ... does not violate 25 U.S.C. [section] 410, in that [the] court is merely making a determination as to [wife's] ability to pay child support ... and render[ing] an Order pursuant to such a finding, but is not designating, nor ordering it to be paid from any particular source." Otherwise, the minute order recited that "... there is no interference by the Court with any [Indian] tribal interests in that the Order of the Court ... is not ... against [wife's] Indian Trust Allocations." The foregoing recital by the trial court, as will be more fully discussed (post ), represented a considered resolve by the trial court not to infringe upon any federally protected rights of a Native American.

Under Public Law 280 (28 U.S.C. § 1360, Public Law 280), California is one of six states upon which Congress has conferred "jurisdiction over civil causes of action between Indians or to which Indians are parties...." Pursuant to the jurisdiction so conferred, the trial court here, in a civil action to which an Indian (wife) is a party, issued an order fixing wife's child support obligation. As will be more fully discussed (post ), this Public Law 280 jurisdiction over civil causes of action includes domestic relations matters, at least in cases with facts reflecting those before us. As noted, otherwise, the order literally declined to designate any source of funds to be used in discharging the support obligation. Thus, any contention that this support order is an effort to "tax Indian reservation lands or income earned by Indians" is ill-advised, if not disingenuous.

Because the order here challenged is one which we hold the trial court had jurisdiction to make, and because the propriety of the order is not otherwise questioned by wife, we shall affirm it accordingly.

SYNOPSIS OF THE TRIAL COURT PROCEEDINGS

At the instance of Randy Purnel (husband), who is not a Native American, a judgment of dissolution of marriage of the parties was obtained in 1992. To that judgment was attached an extensive (16 pages) marital settlement agreement from which it appears that the parties had been married for over 10 years and that they have had 3 minor children. Paragraph 21 of this agreement provided for joint legal and physical custody of the children with no specified times for respective visitation by the parties. Paragraph 22 provided that "neither party shall be required to pay child support to the other." However, it provided further that wife would "continue" to pay all expenses for the children's tuition, clothing and unreimbursed medical expenses. As of this writing, these children are aged 12, 9 and 8, respectively. Otherwise, included among the 13 items awarded to wife from the parties' community property or confirmed as her separate property by the agreement, were: (a) the family residence located at 68-320 Bahada Road, Cathedral City, California; (b) a 23 foot Rollalong motor home; (c) a residential lot located on Milo in Palm Springs, California; (d) a residential lot located on Bahada in Palm Springs; (e) a residence located in Jackson Hole, Wyoming; (f) an I.D.S. annuity; (g) a 1975 Porsche; (h) a 1990 BMW.

In the course of the dissolution proceeding, wife filed a declaration to which she attached a copy of a letter addressed to her by the director of the Bureau of Indian Affairs' Palm Springs office. That letter included a tabulation of the lessees of wife's allotted trust lands and the annual income derived therefrom as follows:

1. Royal Palms Mobile Park $22,280.73

2. DeAnza Corporation $89,235.85

3. Palm Tennis Club $16,349.34

4. Falcon Lakes Properties $81,186.92

5. Sports Arena, Inc. $29,057.00

The aggregate annual rental from these five leases amounts to $238,109.84.

A year and several months after entry of the judgment of dissolution, for reasons which appear to have been related to wife's alcoholism, husband obtained issuance of an order to show cause re modification of: (1) child custody; (2) child support; (3) child visitation; and (4) attorney fees. In support of this endeavor, husband filed the requisite income and expense declaration. At the initial hearing of the matter, the parties stipulated to a so-called parenting agreement. They further stipulated to undergo counseling with Dr. Patricia Marzicola. The stipulation "contemplated" that wife would "enter a dual-diagnosis in-patient treatment program at Capistrano By the Sea, or a similar facility."

Otherwise, in the court-recited stipulation, wife was recognized as not conceding "that this Court has exclusive or concurrent jurisdiction over the Native-American children of the parties."

Concurrently, the parties entered into a so-called "Supplemental ... Custody/Visitation Agreement."

Anticipating a court review of the counseling results and further hearing of the order to show cause, husband executed and filed a further declaration.

Otherwise, husband filed an updated income and expense declaration.

For her part, also anticipating a further hearing of the order to show cause, wife filed an extensive "reply brief" devoted to an effort to show that the state court had no jurisdiction to rule on the issues raised by the order to show cause. More particularly, the entire thrust of this 15-page filing was to demonstrate that any effort to reach the income from wife's allotted trust lands was illegal under federal statutes and the cases interpreting them. As part of the "Conclusion" to this commentary, the author also stated, "[i]t also follows [from] the above authorities that there is no State Court jurisdiction over attorneys fees and costs herein out of Indian Lease Land allocation/allotments to be received by [wife]."

Husband submitted a reply memorandum of points and authorities to wife's filing above noted. Such reply concluded with the observation that "[husband] is not seeking an assignment of Indian trust property or monies. When [wife] receives her monies [from BIA], she deposits them in a bank account at a banking institution just like any other person. [Husband] requests that [wife] pay child support ... out of monies that she has received from her leasing of Indian Land."

With these filings before it, the trial court proceeded to a further hearing of the order to show cause regarding modification. One of the items received in evidence at this hearing was a letter addressed to the Court Mediator, serving in the Family Conciliation Court, from Dr. Patricia F. Marzicola. Such letter reported on the results of her counseling with the parties and included a recommendation concerning custody and visitation.

About three months after the hearing, the trial court issued and filed its "findings and order after hearing." Such order awarded legal custody jointly to both parties with physical custody to husband. Wife was ordered, as earlier noted, to pay $1,063 per month per child as and for their respective support, together with $2,500 in attorney fees. The order also contained specific conditions concerning wife's rights of visitation. They were as follows:

"A. Mother shall have open but supervised visitation with the children as long as the person supervising can establish that she is not under the influence of drugs or alcohol.

"B. Visitation shall be supervised by the maternal grandmother, maternal grandfather or any other person the parents mutually agree upon.

"C. Children shall not be removed from the State of California without the...