13 NICS App. 25, MOSES v. FLEEK (June 2015)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Monique Moses, Petitioner/Appellee,

v.

Matthew Fleek, Respondent/Appellant.

NO.    TUL-CV-AP-2014-0348 (June 23, 2015)

SYLLABUS^*

Trial court issued a temporary domestic violence protection order ex parte, followed by a permanent order of protection after a hearing. Court of Appeals holds trial court erred by (1) failing to conduct a proper evidentiary hearing on the petition for a permanent order, and (2) failing to enter findings of fact establishing that each statutory element required for a permanent order had been met. Permanent order vacated, temporary order reinstated with modifications, and matter remanded for further proceedings.

Before:	Daniel A. Raas, Chief Justice; John C. Sledd, Justice; Jane M. Smith, Justice.
Appearances:	Matthew Fleek, pro se; Christina Parker, Tulalip Office of Civil Legal Aid, for Appellee.

OPINION

Raas, C.J.:

BACKGROUND AND PROCEDURAL HISTORY

Monique Moses, a member of the Tulalip Tribes, and Matthew Fleek, a non-Indian, met while they were serving together in the Marine Corps, married, had a child, and dissolved the marriage in the Tulalip Tribal Court in 2013. A parenting plan was entered as part of the dissolution. However, on July 1, 2014, Appellee Moses (“Appellee”) sought and obtained an ex parte Temporary Order of Protection against Appellant Fleek (“Appellant”).

There were problems with service of the Temporary Protection Order and, after four hearings relating to jurisdiction of the Tribal Court and other matters, a hearing on the merits was

13 NICS App. 25, MOSES v. FLEEK (June 2015) p. 26

held on August 13, 2014. At that hearing, the trial judge began by announcing that a Protection Order would be issued against Appellant containing most of the provisions of the Temporary Protection Order. The trial judge then proceeded to discuss the terms of this Protection Order with the parties, and the final Protection Order issued by the court contained additional provisions allowing the Appellant to own and possess firearms so that he could fulfill the requirements of his service in the Marine Corps Reserve. Neither at that hearing, nor at any of the prior hearings, was live testimony of any witness adduced, nor was any witness subject to cross examination. Neither did the trial judge enter written findings of fact, although his oral discussion referred to certain “facts” that he concluded from the declarations, affidavits and argument adduced during the hearings.

Appellant timely appealed.

STANDARD OF REVIEW

Findings of fact are to be sustained unless clearly erroneous. TTC 2.20.090(1). Since there were no written findings of fact, review of the trial court’s findings of fact is difficult, at best. See TTC 2.10.160(1). Conclusions of Law are reviewed de novo, giving no deference to the trial court. TTC 2.20.090(4).

DISCUSSION

Issuance of a Domestic Violence Protection Order is governed by TTC 4.25.500. Promptly after a Petition for a Protection Order is filed, the court is directed to issue an ex parte Temporary Protection Order if it finds that the requirements of TTC 4.25.500(1) are met. A Temporary Protection Order in this matter was issued on July 1, 2014. The court is also required to set a hearing to be held within 14 days of the Temporary Protection Order in order to determine whether the ex parte Order should be made permanent, modified or dismissed. TTC 4.25.500(4). While such a hearing was timely scheduled, it was not held until August 13, 2014. The form and procedure of such a hearing are not set out in TTC 4.25, Domestic Violence, so the Civil Rules of Tribal Court, TTC 2.10, apply. In particular, TTC 2.10.150(4) is applicable here: “(4) Testimony. In all trials, the testimony of witnesses shall be taken orally in Court, unless otherwise provided by rule or statute.”

The record in this case does not demonstrate that the testimony of any witness was taken orally. Indeed, counsel for the Appellee agreed in oral argument before this Court that one of the critical findings necessary to support the issuance of a Domestic Violence Protective Order - that there is the “infliction of the fear of imminent physical harm”, TTC 4.25.100(1), see TTC4.25.470 (“…to prevent further violence”) - was supported only by the affidavits filed in order to obtain the Temporary Protection Order of July 1, 2014. As another example, the trial court relied upon a police report that concluded that the Appellant exercised a “continuation of power and control” over the Appellee. The officer did not testify.

The lack of explicit written or oral findings of fact regarding all of the statutory elements constituting the elements of domestic violence needed to support an Order for Protection – Domestic Violence, see, e.g. TTC 4.25.100(1), (11), and (29), and TTC 4.25.490(1), makes

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meaningful appellate review of the Trial Court’s Permanent Protection Order impossible under any standard. In re: Custody of Aaliyah McLean-McNabb, 13 NICS App. 1, 3-4 (2015).

The failure to hold a hearing at which the Appellant and Appellee had the opportunity to examine and cross-examine witnesses requires that the Order for Protection (Domestic Violence) issued August 13, 2014, be vacated and this matter be remanded to the trial court for further proceedings. The failure to make statutorily required findings of fact supported by proper evidence is an independent basis upon which to vacate the August 13, 2014, Protection Order. However, vacating the August 13, 2014, Protective Order would reinstate the Temporary Protective Order of July 1, 2014, which does not contain the provisions permitting Appellant to comply with the requirements of serving in the Marine Corps Reserve. Since the Appellee has agreed that allowing Appellant to have firearms to allow him to comply with Marine Corps Reserve requirements is appropriate, that part of the August 13, 2014, Protection Order shall be included as part of the reinstated Temporary Protection Order.

CONCLUSION

It is hereby ordered that:

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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.

18 U.S.C. 922(d) states in relevant part:

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person —

(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that —

(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

(B)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) has been convicted in any court of a misdemeanor crime of domestic violence.