Purser v. Purser, (2010)

• Decision Date: 28 April 2010
• Docket Number: POR-CI-10/09-187,POR-CI-10/09-188,POR-CI-10/09-190
• Parties: MATHEW PURSER, PETITIONER AND APPELLANT, v. KIMBERLY PURSER, RESPONDENT AND APPELLEE.
• Court: Port Gamble Sklallam Tribal Court of Appeals

MATHEW PURSER, PETITIONER AND APPELLANT, v. KIMBERLY PURSER, RESPONDENT AND APPELLEE.

No. POR-CI-10/09-187, POR-CI-10/09-188, POR-CI-10/09-190

Port Gamble S'klallam Tribal Court of Appeals Port Gamble S'klallam Indian Reservation Kingston, Washington

April 28, 2010

SYLLABUS BY THE COURT

SYLLABUS^*fn1

Trial court issued order dismissing a petition for dissolution of marriage and determination of child custody without hearing because the opposing spouse/parent had previously filed a petition concerning the same subject matter in state court.Court of Appeals holds that trial court erred by failing to conduct an evidentiary hearing failing to rule on the parties legal arguments, and failing to issue written findings of fact and conclusions of law.Appeal accepted and remanded to trial court for an evidentiary hearing.

Before: Eric Nielsen, Chief Judge; Leona T. Colegrove, Judge Lisa M. Vanderford-Anderson, Judge.

OPINION

NIELSEN, C.J.^[1]

This matter comes before the Port Gamble S'Klallam Tribal Court of Appeals("Court of Appeals") pursuant to the Notice of Appeal Filed by AppellantMatthew Purser, a Tribal Member, on December 8, 2009.We accept the appeal and remand the matter back to the Tribal Court for an evidentiary hearing as instructed.

I.Facts

On September 17, 2009, AppelleeKimberly Lynn Purser, a non-member, petitioned the Kitsap County Superior Court for a Dissolution of Marriage and child support and child custody determination, cause no. 09-3-01233-0.On October 15, 2009, Appellant filed a Petition for Dissolution of Marriage and Determination of Child Custody, Case No. POR-CI-10/09-190 in the Port Gamble S'Klallam Community Court("Tribal Court").On October 22, 2009, Respondent requested the Tribal Court honor the determination of the Kitsap County Superior Court because the action she brought in state court predated Appellant's Petition in Tribal Court.

On December 7, 2009, the Tribal Court, without holding an evidentiary hearing, dismissed Appellant's Petition without prejudice.The basis for dismissal was that the Appellee had already filed a petition for dissolution in Kitsap County Superior Court and therefore the principles of comity required that the Tribal Court allow the state court, another court of competent jurisdiction, to issue a ruling before entertaining the same subject matter.

II.Appeal

On appeal, Appellant claims the Tribal Court erred in failing to: 1) establish whether there was subject matter jurisdiction pursuant to section 21.04.02(a) of the Law and Order Code; 2) establish whether there was personal jurisdiction over the parties pursuant to section 21.04.02(b) of the Law and Order Code; 3) establish whether there was personal jurisdiction under section 21.01.04 of the Law and Order Code; 4) establish whether there was continuing exclusive jurisdiction under section 21.01.05 of the Law and Order Code; 5) provide a legal basis for determining lack of jurisdiction; 6) enter a written order outlining analysis or basis for determining lack of jurisdiction under sections 21.03.22and21.03.23 of the Law and Order Code; and 7) ask the parties to provide testimony regarding jurisdictional analysis under the above-mentioned Law and Order code sections.

III.Decision

We have independently reviewed the entire record of the hearing, the court's file and the parties' pleadings.^[2] Based on that review we accept the appeal, as the notice of appeal was timely filed and served and otherwise complies with the filing requirements of the PGST appellate rules.Under PGSTC § 7.08.01, this Court can take any action the merits of the case and interest of justice requires.Therefore, we find, without further briefing, that in this case the interest of justice mandates the matter be remanded to the Tribal Court to allow the parties an opportunity to present their arguments and evidence in a full fact-finding hearing.

Without an evidentiary record, rulings on the parties' legal arguments or written findings of fact and conclusions of law there is no basis for this Court to review the Tribal Court's decision.If the Tribal Court lacked subject matter or personal jurisdiction, then declining jurisdiction on the basis of comity would be clear error, as tribal jurisdiction would have never existed.On the other hand, assuming subject matter and personal jurisdiction, declining...