IN RE THE CUSTODY OF P.M.

12 NICS App. 76, IN RE THE CUSTODY OF P.M. (July 2014)

IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS

PORT GAMBLE S’KLALLAM INDIAN RESERVATION

KINGSTON, WA

In re the Custody of P.M., an Indian minor,

Dawn LaMont-Holman, Petitioner/Appellee,

and

Chris Moyer, Respondent/Appellant.

NO. POR-J-12/04-187 (July 7, 2014)

SYLLABUS^*

Noncustodial parent appealed visitation schedule adopted in trial court custody orders, but did not challenge specific findings of fact made by trial court that formed the basis for the visitation schedule. Court of Appeals determines that the applicable standard of review requires that the trial court orders be affirmed unless it is shown that the trial court abused its discretion. Court of Appeals finds no abuse of discretion occurred. Trial court orders and visitation schedule are affirmed.

Before:	Eric Nielsen, Chief Judge; Jerry R. Ford, Judge; Lauren King, Judge.
Appearances:	Chris Moyer, pro se; Dawn LaMont-Holman, pro se.

OPINION

Per curiam:

Chris Moyer (Moyer), Appellant, appealed the visitation schedule in the parenting plan adopted through Child Custody orders entered by the Port Gamble S’Klallam Community Court on October 16, 2013 and November 1, 2013. Both Moyer and Dawn LaMont-Holman (LaMont), Appellee, filed briefs and presented oral argument on June 12, 2014.

STATEMENT OF THE CASE

This case is an ongoing custody dispute between Moyer and LaMont regarding their daughter that began in 2004. LaMont is the custodial parent. Since 2008 there has been and there continues to be litigation, resulting in numerous hearings regarding visitation by Moyer with his daughter.

12 NICS App. 76, IN RE THE CUSTODY OF P.M. (July 2014) p. 77

On October 16, 2013, following a hearing where the parties were given the opportunity to present witnesses, evidence and argument, the Community Court entered findings of fact and conclusions of law and a Parenting Plan Visitation Schedule. In addition to granting Moyer visitation on certain holidays, the schedule provides Moyer visitation with his daughter every other Sunday and one week in August. Because the schedule was unclear whether the every other Sunday visitations applied to both the school year and summer, on November 1, 2013 the court entered an order clarifying it applied to both.

ISSUE

Moyer had requested visitation every Sunday and every Wednesday. Moyer appeals the Community Court orders. He contends he is being denied visitation with his daughter by the Community Court’s rejection of his requested visitation schedule. Although the parties have argued other issues in their briefs and during oral argument in this Court, we will not address those issues, including the ongoing dispute over enforcement of the Parenting Plan, which remains for the Community Court to resolve. Our review is limited to issues Moyer raises in his Notice of Appeal. Moyer states the issues are: “I want the parenting plan to let me see my daughter on Wednesday after school until 7 p.m. and then every Saturday or Sunday. And one week in the summer, and the scheduled holidays.” Appellant’s Brief ¶ C.

STANDARD OF REVIEW

Our review is limited to issues of law unless we determine the trial court’s findings of fact are clearly erroneous. PGSTC 7.03.04. Under PGSTC 3.06.05, in civil cases, where the Tribe’s laws or custom do not address an issue, its courts look to the law developed by other jurisdictions. Other than PGSTC 7.03.04, our research does not reveal any Tribal law or custom that prescribes the standard of review from an appeal of the trial court’s visitation schedule under a Parenting Plan. Washington State courts will not disturb a trial court’s parenting plan on appeal absent an abuse of discretion. In re Marriage of Katare, 175 Wash.2d 23, 35, 283 P.3d 546 (2012) (en banc). Particularly in matters involving parental visitation, a trial court “must evaluate a considerable amount of information and weigh the credibility of numerous witnesses in order to balance the best interests of a child against a parent’s rights”; therefore, Washington appellate courts place “very strong reliance” upon a trial court’s determination of what course of action will be in the best interest of the child. In re Dependency of T.L.G., 139 Wash. App. 1, 15, 156 P.3d 222 (2007) (citing In re Dependency of K.R., 128 Wash.2d 129, 146, 904 P.2d 1132 (1995)).

We find that reasoning sound. In matters governing visitation we now adopt the abuse of discretion standard.

We have previously held that under the abuse of discretion standard, we will reverse the trial court only if we conclude that no reasonable person could agree with the trial court’s ruling. Decoteau v. Ives, 2 NICS App. 170, 172 (Port Gamble S’Klallam Ct. App. 1992) (citations omitted). The Court abuses its discretion under the “no reasonable person standard” if it commits “(1) a clear error of judgment in its conclusions based on the weight of the relevant factors, (2) applied the wrong law, or (3) its decisions rested on clearly erroneous findings of material fact.” Hoopa Valley Housing Authority v. Doolittle, 7 NICS App. 45, 47 (Hoopa Valley

12 NICS App. 76, IN RE THE CUSTODY OF P.M. (July 2014) p. 78

Tribal Ct. App. 2005) (citing United States v. Washington, 395 F.3d 1152, 1157 (9th Cir. 2005)). This standard is substantially the same as that followed by Washington State courts, which hold that an abuse of discretion occurs when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons. See In re Marriage of Katare, 175 Wash.2d 23, 35, 283 P.3d 546 (2012) (en banc).

CONCLUSION AND ORDER

Moyer does not directly challenge any of the Community Court’s factual findings. Based on those findings, the Community Court concluded its visitation schedule is in the best interest of the child and provides the child with the benefits both parents can provide.

Our review of the transcripts of the hearings, evidence, pleadings filed by the parties, and the Community Court’s orders, clearly shows that the Community Court went to great effort to ensure that Moyer was given every opportunity to present his case and argue for what he believed was the appropriate visitation schedule. Even if Moyer had directly challenged the Community Court’s factual findings, the record shows the Community Court’s findings are supported by substantial evidence and that it applied the relevant factors in determining the visitation schedule. See Transcript of Proceedings (Oct. 4, 2013); Child Custody Final Order and Parenting Plan, Dkt. 161 (Oct. 16, 2013); Order Clarifying Parenting Plan, Dkt. 163 (Nov. 1, 2013); PGSTC 21.05.26 (listing relevant factors). On this record, we cannot find the Community Court’s visitation schedule or failure to adopt Moyer’s requested visitation schedule constitute an abuse of discretion. Therefore, we affirm the Community Court’s orders.

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.