10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011)

IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS

PORT GAMBLE S’KLALLAM INDIAN RESERVATION

KINGSTON, WASHINGTON

In the Marriage of:

Donald R. McLeod, Plaintiff/Appellee,

and

Jolene M. Sullivan, Respondent/Appellant.

No. POR-CI-8/10-172 (December 08, 2011)

SYLLABUS*

Married couple seeking dissolution of their marriage disputed the husband’s claim of interest in the home formerly shared by the couple, which is located on tribal trust land. Trial court entered findings of fact and decree of dissolution that awarded the home to the wife and ordered the wife to pay the husband a cash judgment in an amount roughly equal to the equity interest claimed by the husband. Because the tribe’s land code provides that only the Tribal Council may make decisions about the alienation of trust land, the Court of Appeals holds that the trial court failed to establish its jurisdiction over the home by failing to make a threshold ruling as to whether the home could be separated from the land. Noting several other infirmities in the trial court’s rulings, the Court of Appeals vacates the trial court’s decree of dissolution and findings of fact pertaining to the division of property, and remands for further proceedings.

Before:

Eric Nielson, Chief Judge; Randy A. Doucet, Associate Judge; Suzanne Ojibway Townsend, Associate Judge.

Appearances:

Steven Tanijo, Attorney for Appellant; Randal Brown, Attorney for Appellee.

OPINION

Ojibway Townsend, J.:

This matter comes before the Port Gamble S’Klallam Court of Appeals pursuant to a Notice of Appeal filed on February 4, 2011 by appellant Jolene M. Sullivan. Appellant

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 45

challenges the Port Gamble S’Klallam Community Court’s award of a money judgment in favor of Appellee, on the basis that the Community Court made no findings of fact or conclusions of law to support the award.

I. FACTS AND PROCEDURAL HISTORY

On August 11, 2010, Mr. McLeod filed a Petition for Dissolution of Marriage (“Petition”) in the Port Gamble S’Klallam Community Court (“Community Court”). Mr. McLeod sought a decree dissolving his marriage; approval of a parenting plan for the minor child of the marriage; determination of child support for the child; a division of the property and liabilities of the parties; and a decision regarding the tax exemptions for the dependent child.1 With respect to division of the property of the parties, Mr. McLeod sought half the equity in the family home; a 2008 GMC Sierra truck; a 2010 fishing boat; and all other personal property then in his possession. Mr. McLeod proposed that Ms. Sullivan be awarded half the equity in the family home; a 2007 Hummer; and all personal property then in her possession. On September 22, 2010, the Community Court, on its own motion, ordered the matter to mediation and appointed a mediator.

On November 1, 2010, Ms. Sullivan made her first appearance, by way of a motion seeking immediate possession and ownership of the family home located at 30683 Bear Ridge Drive NE, Kingston, Washington (“Bear Ridge Drive Property”).2 On November 9, 2010, the Community Court heard Ms. Sullivan’s motion and thereafter entered a restraining order prohibiting Mr. McLeod from entering the Bear Ridge Property without permission. The Court reserved a decision about ownership of the Bear Ridge Property for a later date.

Hearing on the dissolution matter was held on January 18, 2011, at which time both parties presented sworn testimony and provided evidence. At the time of the hearing, the parties had completed court-ordered mediation and were in substantial agreement on all the issues concerning child custody and child support. The parties were not in agreement about how to value and award the equity in their family home and about how to divide other personal property and outstanding debt.

Based on the record of the hearing, the primary disagreement between the parties was how to divide the equity in the family home. Mr. McLeod sought a share of the equity in the home, and testified that he contributed his own funds towards the cost of constructing the home. By motion presented on the day of the hearing, Ms. Sullivan sought a decision that the Bear

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 46

Ridge Drive Property was “not affixed to realty,” was her sole personal property, and that Mr. McLeod had no community property interest in the property. She argued that because the home sits on a lot assigned to her by the Tribe, community property law does not apply to the Bear Ridge Property, and that even if community property law were applied, the mortgage debt on the property exceeds the home’s value, leaving no equity to divide between the parties.

An appraisal of the property was provided to the Court and was filed on the day of the hearing.3 Neither party objected to the value placed on the real property, which was $380,000. Ms. Sullivan testified that the outstanding balance of the mortgage on the property was approximately $330,120. The property appraisal included a value based on both the land and the home.4 The court concluded that the parties had approximately $46,800 equity in the property. Ms. Sullivan testified that she was the only party on the mortgage, and this evidence was not contested. Mr. McLeod testified that he had invested between $15,000 and $20,000 of his separate money into the home when it was being built. Ms. Sullivan argued that Mr. McLeod had been paid for his work on the home through Mr. McLeod’s construction company. Neither party submitted documentary evidence to support their respective claims.

The trial court issued its Findings of Fact and Conclusions of Law (hereinafter “Findings of Fact”) and a Decree of Dissolution on January 19, 2011.5 The Decree of Dissolution dissolved the marriage of the parties, adopted the parenting plan agreed to by the parties, divided the debts and the real and personal property of the parties and awarded a money judgment to Mr. McLeod in the amount of $20,000.6 Both the Decree and the Findings of Fact divide property between the parties and assign responsibility for the debts of the parties. In the Findings of Fact, the Bear Ridge Drive Property, the riding mower, a Hummer vehicle and “all property in [the] residence except tools for [illegible] business in shop” are designated community property of the marriage, and all are awarded to Ms. Sullivan, except for the tools in the shop. Under the heading “Separate Property,” Mr. McLeod is awarded the “2010 Hewescraft boat and trailer,” “company use of the shop to store tools,” and “art work from his mother, taxidermy and 2011 Sierra GMC.” The Decree of Dissolution contains substantially the same division of property

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 47

and debt, but clarifies that the Court awarded the “real estate” at 30683 Bear Ridge Drive, Kingston, WA” to Ms. Sullivan. Each party was required to pay $250 per month towards a debt to the IRS.7 Mr. McLeod was ordered to make the loan payments on the GMC Sierra and the boat and trailer. Ms. Sullivan was ordered to pay the debts to American Express, Bank of America, and the loan payments on the Hummer and the Bear Ridge Drive property.

The Decree of Dissolution also ordered a judgment in favor of Mr. McLeod and against Ms. Sullivan in the sum of $20,000. This amount is similar to one-half of the equity in the Bear Ridge Drive Property requested by Mr. McLeod. However, the Findings of Fact, the Decree of Dissolution and the record of the hearing are silent regarding how the trial court arrived at the amount of the judgment.

II. APPLICABLE LAW

“The Court of Appeals shall review the record of proceedings from the Community Court, appellate brief and oral argument in rendering its decision.” PGSTC 7.03.03. “The Court of Appeals shall limit its review to issues of law except that the Court of Appeals may review findings of fact in cases tried before a judge sitting without a jury and shall set aside such findings of fact if they are clearly erroneous.” PGSTC 7.03.04.

The Port Gamble S’Klallam Tribe’s Family Code (“Family Code”) governs divorce proceedings in the PGST Community Court. See Chapter 21.04.01. When parties to a divorce proceeding are unable to agree to a division of property and debt, the Community Court has the authority to divide certain types of property and to divide the debts of the parties, guided by the factors set out in the Family Code. Family Code, Section 21.04.22. This section of the Family Code provides, in relevant part:

* * *

a) Property shall be divided with the minor children’s well-being as the first and foremost consideration;

b) Property and debts acquired during the marriage belong equally to the spouses unless the spouses have agreed that certain property or debts are separate. The Court may be guided by, but is not bound by, the principles of community property law;

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 48

c) Neither inherited property nor property held in trust by the U.S. for the individual is subject to property division by the Court;

d) If a party owns or is purchasing a home on land assigned on the Port Gamble S’Klallam Reservation, a copy of the purchase or ownership agreement and a copy of the lot assignment certificate shall be submitted to the Court before the final division of property.

Lot assignment, ownership and occupancy are three different issues. Lot assignment and lot occupancy are within the exclusive authority of the Tribal Council. Decisions regarding home ownership may be within the jurisdiction of the Court if the home can be separated from the lot.

The Court may stay proceedings under this chapter while the Tribal Council makes a decision regarding lot assignment and/or occupancy so that the Court can take the Tribal Council’s decision into account in dividing the rest of the couple’s property and debts.

* * *

PGST Family Code, Section 21.04.22.

The Family Code requires that two separate court orders be entered after a divorce hearing, one entitled “findings of fact, conclusions of law and order on property and debts” and another entitled “decree” of divorce. Family Code, Section 21.04.25. The code specifies what information must be included in each of the two orders. Id.8

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 49

With respect to a home on a lot on the Reservation that is assigned to a party by the Tribal Council, the Tribal Lands Code also governs treatment of the lot. A tribal member assigned a parcel of tribal trust land does not take ownership of the land, but receives only the “permissive right of occupancy.” Tribal Lands Code, Section 10.01.05. Title to the land remains in the United States, in trust for the Tribe. Id. Only the Tribal Council has the authority to control alienation, transfer, lease, inheritance or devise of the assigned property. Id. Houses and other structures placed on the assigned lot by anyone other than the Tribe are “designated as personal property, not real property, and shall not be deemed affixed to the realty.” Tribal Lands Code, Section 10.01.07. Title to such improvements “remain in the person or entity which placed it on the assigned lot and shall not pass to the Tribe, unless otherwise agreed in writing ….” Id. It is the responsibility of the owner of the improvement to remove or sell such improvements when the person no longer holds the assignment on which the improvements are located. Tribal Lands Code, Section 10.01.08.

Every court has an independent obligation to confirm its own jurisdiction, even when the issue of jurisdiction is not raised by the parties.9 See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

[T]he law is well settled that where constitutional or statutory provisions limit the jurisdiction of a court, … objections to jurisdiction cannot be waived. Indeed, the rule is “inflexible and without exception” and requires the Court to deny its own jurisdiction even when not asked to do so by the parties and even when doing so

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 50

will result in hardship to a party as a result of the opposing party’s failure to raise the objection.

In the Matter of S.T., 8 NICS App. 81, 83 (Squaxin Island Tribal Ct. App. 2008), citing Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 70 (Hoopa Valley Tribal Ct. App. 2005).

A court’s primary duty in interpreting any statute is to discern and implement the intent of the legislative body. Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). “The starting point must always be the statute’s plain language and ordinary meaning.” Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69 (Hoopa Valley Tribal Ct. App. 2005). When interpreting a code provision, a court considers not only the meaning of the critical word or phrase but also its purpose and placement in the statutory scheme. Skokomish Indian Tribe, 8 NICS App. at 70.

III. DISCUSSION

This case requires the Court to determine the appropriate treatment of a family residence as part of the property and debt division in a dissolution of marriage proceeding when it is alleged that the residence is located on a lot assigned to a party by the Tribe.

In the proceeding below, both parties agreed that the family residence was located on a lot assigned to Ms. Sullivan by the PGST. Given this, the parties were required to submit “a copy of the purchase or ownership agreement and a copy of the lot assignment certificate” to the Court “before the final division of property.” Family Code, Section 21.04.22(d) (emphasis added). Neither party submitted the required documents for review by the Court, and neither did the Court require their submission, in violation of the Family Code. In the absence of the required documentation, the Court had no way to determine whether the documents, assuming they do exist, included requirements or restrictions about removal of the home from the lot, or specific provisions regarding the sale or division of the property in the event of a divorce.

The only evidence in the record about the value of the home is contained in a private appraisal, which valued the home as part of the real estate on which it sits and clearly assumed that the home and land were owned in fee simple.10 The appraisal describes the home as 3,907 square feet, consisting of two stories, an attached garage and decks and a separate shop, and sitting on 0.63 acres. Because the parties appear to agree the home is situated on tribal trust land, and because tribal trust land is not owned by the lot assignee in fee simple, the assumption in the appraisal that the land is owned in fee simple appears incorrect. Rather, the land is tribal trust land. Tribal Lands Code, Section 10.01.05.

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 51

The PGST Family Code reserves to the Tribal Council exclusive jurisdiction over decisions regarding assignment of lots on the Reservation and occupancy of lots on the Reservation. Family Code, Section 21.04.22(d). As discussed above, pursuant to the Tribal Lands Code, only the Tribal Council may make decisions about the alienation of such land. With respect to decisions about the ownership of a home or other improvement on assigned reservation land, the Family Code provides that the Community Court “may” have jurisdiction to decide home ownership “if the home can be separated from the lot.” Id. The Family Code is silent regarding whether it is the Court or the Tribal Council that makes the decision about whether the home can be so separated.

We interpret the intent of the provisions of the Family Code relating to homes situated on tribal trust land, in combination with the provisions of the Tribal Lands Code, to reserve to the Tribal Council the exclusive jurisdiction to make decisions regarding occupancy and assignment of lots located on the Reservation and exclusive jurisdiction regarding the ownership of improvements to the land that cannot be separated from the land. In these areas, the Community Court is without jurisdiction. In a divorce proceeding, the Court’s jurisdiction to determine ownership of a home situated on a lot assigned to a party on the Reservation arises only if the home can be separated from the land. We further interpret this code provision to include a condition precedent to the Court’s jurisdiction in this regard, which condition is set out in the phrase “if the home can be separated from the lot.” Thus, the Court may establish its jurisdiction to convey ownership of an improvement on a lot assigned to a tribal member on tribal trust land only by first making a finding that the improvement can be separated from the real property on which it sits.

In the proceeding below, the Court was not asked to determine lot assignment or lot occupancy. The Court was asked to determine ownership of the home, in that Mr. McLeod sought an equity interest in the home. In its Decree of Dissolution, the Court awarded the “real estate [located at] 30683 Bear Ridge Drive, Kingston, WA 98346” as part of the division of property of the parties. In its Findings of Fact, the Community Court assigned the Bear Ridge Drive Property as community property of the parties, thus granting to Mr. McLeod an ownership interest in the property. At the hearing in this matter, the Court speculated on the record that it might be possible for any home to be physically moved by the mortgage company in the event of default on the mortgage, but the Court made no clear finding in this regard and no finding regarding whether this specific home can be “separated from the lot” such that the Court might have jurisdiction to determine ownership.11 Because a finding that the home could be removed from the lot is a prerequisite to the Court’s jurisdiction, the Court failed to establish its jurisdiction to award the home as part of the division of property of the parties. In addition, the

10 NICS App. 44, IN THE MARRIAGE OF McLEOD AND SULLIVAN (December 2011) p. 52

Court made no distinction in its award between the improvements to the lot (i.e. the home and outbuildings) and the real estate on which it sits, and as noted above, awarded the real property as part of the Decree of Dissolution.

As described above, neither party sought a determination about the right to occupy or the assignment of the lot on which the Bear Ridge Drive Property sits. If that had been an issue, the Court would have been required to submit the matter for the decision of the Tribal Council. Family Code, Section 21.04.02(d). In such a case, the Court would be able to stay the proceedings until the Tribal Council decided the issue, and would then be able to take the value of the lot assignment and/or right of occupancy into account when dividing the property of the parties. See Family Code Section 21.04.022(d) (“The Court may stay the proceedings under this chapter while the Tribal Council makes a decision regarding lot assignment and/or occupancy so that the Court can take the Tribal Council’s decision into account in dividing the rest of the couple’s property and debts.”). Given that the Family Code anticipates that rights of lot occupancy and lot assignment may have a value, and that value may be taken into account when dividing the remaining debts and property of the parties, it follows that even if the Court determines that it does not have jurisdiction to determine ownership of the improvements on the lot (for example, if the Court finds that the home cannot be removed from the lot), the Court may still take the values of the improvements on the lot, and the values of the lot assignment/right to occupancy into account when dividing the personal property and debts of the parties.12 See, Family Code, Section 21.04.22(d) (“the Court may be guided by, buts is not bound by, the principles of community property law.”) (Emphasis added).

For the reasons set out above, we hold that the Community Court lacked jurisdiction to determine and award ownership of the Bear Ridge Drive real property, and also lacked jurisdiction to award or determine ownership of the improvements on the property, absent a finding that the improvements can be separated from the land. In addition the Community Court failed to comply with the provisions of the Family Code requiring the submission of the purchase or ownership agreement and a copy of the lot assignment certificate before it made a final division of property, evidence of which is required in order for the Court to determine its jurisdiction or lack thereof.

Although our holding is that the Community Court lacked jurisdiction only with respect to the award and division of the real property and improvements discussed above, this Court recognizes that the entirety of the Community Court’s division of the property and debts of the parties is likely to be impacted by this decision. For this reason, it is appropriate that all orders

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regarding the division of property and debt, including the award of the judgment in favor of Mr. McLeod, be vacated so that the entire division of property and debt can be reconsidered in light of this opinion.

IV. CONCLUSION

The provisions of the Decree of Dissolution and the Findings of Fact pertaining to the award of or division of the property and debts of the parties, including the award of the judgment in favor of Mr. McLeod, are VACATED. This matter is REMANDED to the Community Court for further action in accordance with this opinion.

*

The syllabus is not a part of the Court’s Opinion.  The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader.  Therefore, the syllabus should not be cited in whole or part as legal authority.  Only the Opinion, which follows the syllabus, may be cited as legal authority.


1

Pursuant to the PGST Family Code, Mr. McLeod consented to the personal jurisdiction of the Community Court by filing the Petition. PGST Family Code, Section 21.


2

The motion included a copy of the Settlement Agreement that resulted from the mediation proceeding. The Settlement Agreement provided that certain actions would be taken to determine outstanding tax liabilities and to locate and select a real property appraiser; set out a proposed parenting plan; and included an agreement regarding tax credit for the child. The parties had not reached an agreement about division of property and debt.


3

The appraisal is included in the record below and is date-stamped as filed on January 18, 2011. The exhibit was not formally offered into evidence and the Court did not mark it as an exhibit. The record is clear that the Court did review the appraisal, and a discussion of the appraisal occurred during the hearing. It is unclear whether the appraisal report contained in the record is the entire report of the appraiser. The appraisal document several times includes the phrase “See Text Addendum”. No document titled “Text Addendum” is attached to the appraisal report in the record below.


4

The appraisal notes that the property is on the Port Gamble S’Klallam Reservation, but describes the rights appraised as “fee simple.” The appraisal includes a description of the lot size.


5

Both the Decree of Dissolution and the Findings of Fact and Conclusions of Law were signed on January 19, 2011 and filed on January 20, 2011.


6

The Decree of Dissolution in the record below has an attachment entitled “Property shall be divided as follows.” This attachment was not incorporated into the Decree. The document appears to have been drafted by Mr. McLeod, but it is not marked as an exhibit and does not have a filing date stamp. For purposes of this appeal, this document is not considered part of the Decree.


7

The Decree of Dissolution is inconsistent regarding the description of the liabilities of the parties. Paragraph 2.10 of the Decree lists all the debts of the parties under the heading “Community Liabilities.” In paragraph 2.11 of the Decree, some of the same debts are listed under the heading “Separate Liabilities.” The Decree is also inconsistent with the Findings of Fact, in that the Decree orders Ms. Sullivan to pay $250 per month to Mr. McLeod to be used to pay the IRS lien, while the Findings of Fact order Mr. McLeod to pay $250 per month towards the IRS lien to Ms. Sullivan. The Decree is consistent regarding which party is responsibility for payment for the remaining liabilities.


8

Family Code Section 21.04.25 provides, in relevant part:

* * * The findings of fact and conclusions of law must include:

a)    

The basis for the Court’s jurisdiction over the case;

b)    

The address of each party;

c)    

The date the marriage occurred;

d)    

A statement indicating when the petition was filed and when and how the respondent was served;

e)    

A statement as to whether or not the respondent is in the military;

f)    

A statement as to whether or not the woman is pregnant;

g)    

A statement as to whether the parties entered into a written separation agreement, the date of any agreement and a finding as to whether the agreement was fair or unfair;

h)    

A statement that the marriage of the parties is irretrievably broken; or the basis for the invalidity of the marriage; and

i)    

A statement regarding any name change that is applicable.

The order on property and debt shall include:

j)    

A statement describing any property that should be awarded to each party free from claim of interest of the other party; and

k)    

A statement describing any debts that should be paid by each party.

PGST Family Code, Section 21.04.25.

The decree of divorce must include the following;

a)    

A statement that the Court has jurisdiction over the case;

b)    

The date the marriage occurred;

c)    

Any name change that is applicable;

d)    

A statement that the marriage is dissolved or invalidated or that the parties are legally separated; and

e)    

A statement that the property and debts shall be divided as provided in the order on property and debts.

Family Code, Section 21.04.26.


9

The Port Gamble S’Klallam Tribal rules for civil actions provide that “In deciding civil actions, the Community Court shall first look at the written laws, codes, ordinances and resolutions of the Port Gamble S’Klallam Tribe,” and “may then look to any other laws which may be applicable and may be guided by the law developed by other jurisdictions including other tribes.” PGSTC 3.06.05. Therefore, it is appropriate for the Court of Appeals to also be guided by the laws of other jurisdictions.


10

The appraisal also describes the home as located on the Reservation.


11

The Tribal Lands Code appears to anticipate that even permanent structures may be removed from an assigned lot on tribal trust land once the assignment of the lot is terminated. See, Tribal Lands Code, Section 10.01.08. (“It shall be the responsibility of the owner of improvements to arrange for their removal or sale when he or she, for whatever reason, no longer holds the assignment on which it is located.”)


12

Despite the restriction on the Court’s jurisdiction contained in the Family Code, the Tribal Lands Code does not appear to limit ownership of improvements on an assigned lot to the holder of the assignment. See Tribal Lands Code, Section 10.01.07. Despite the fact that the Tribal Lands Code may allow an ownership interest in the improvements by a non-assignee of the lot, the Family Code is still specific about the lack of jurisdiction for the Court to determine that ownership as part of a divorce proceeding.