16 NICS App. 18, ROBINSON v. WILBUR (April 2018)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Carissa Robinson, Petitioner/Appellant,

v.

Raymond Wilbur, Jr., Respondent/Appellee.

NO.    TUL-CV-AP-2017-0127 (April 19, 2018)

SYLLABUS*

Appellant argued trial court committed errors when it allowed respondent's undisclosed witnesses at trial, refused to consider written witness statements, and failed to consider factors set out in the tribal code for modifying a parenting plan. Court of Appeals found that trial court did not abuse its discretion and affirmed the parenting plan entered by the trial court.

Before:	Daniel A. Raas, Chief Justice; Elizabeth F.M. Nason, Justice; Jane M. Smith, Justice.
Appearances:	Daniel B. Ehrlich, for Appellant; Raymond Wilbur, Jr., pro se.

OPINION

Raas, C.J.:

Appellant Carissa Robinson timely appealed the Tribal Court’s Final Order and Parenting Plan (‘Parenting Plan’) entered on March 3, 2017, governing the care, custody and control of the parties’ daughter. At the Appellant’s request, oral argument was continued until February 9, 2018.

The Parenting Plan was entered after a trial at which both parties appeared without counsel, and examined and cross examined witnesses, and argued their respective positions to the Tribal Court.

Appellant submits three errors committed by the Tribal Court:

16 NICS App. 18, ROBINSON v. WILBUR (April 2018) p. 19

STANDARDS OF REVIEW

TTC 2.20.090 provides these standards for this review of the Tribal Court’s Parenting Plan:

(1) A finding of fact by a Judge shall be sustained unless clearly erroneous;

(2) A factual inference drawn by a Judge or jury shall be reviewed as a finding of fact if more than one reasonable inference can be drawn from the fact;

(3) Any finding by the Judge, whether explicit or implicit, of witness credibility shall be reviewed as a finding of fact;

(8) A matter which is within the discretion of the Tribal Court shall be sustained if it is reflected in the record that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion. A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.

In Parks v. Taylor, -- NICS – (Tulalip, 2018), this Court reaffirmed the following characterization of ”abuse of discretion” first enunciated in Davis v. Tulalip Tribes, 5 NICS App. 11, 14 (Tulalip Tribal Ct. App. 1997):

“When reviewing the findings of fact of the lower court, this Court must find some abuse of discretion on the part of the judge before we may disturb the lower court order. An abuse of discretion does not exist if the findings of the judge are supported by substantial evidence. Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa 1993). Substantial evidence is “evidence which would convince an unprejudiced, thinking mind of the truth of a declared premise.” Lower Elwha v. Elofson, 4 NICS App. 99 (Lower Elwha 1996), citing Freeburg v. Seattle, 71 Wash. App. 367, 859 P.2d 610 (1993).

This factual review is deferential. It requires us to view the evidence and the reasonable inferences drawn therefrom in “the light most favorable to the party

16 NICS App. 18, ROBINSON v. WILBUR (April 2018) p. 20

who prevailed in the highest forum that exercised fact finding authority.” Elofson, NICS 99, 103 (Lower Elwha 1996) (citing Freeburg, 71 Wash. App. at 371).

It is the role of the fact finder to make determinations regarding the credibility of the witness that testifies before him and to weigh the reasonable yet competing inferences which can be drawn from that testimony. It is the role of this Court to support these factual findings unless there has been an abuse of discretion.

A manifest abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. . . 8 NICS App. 8, 11 (Hoopa Valley, 2007), Salem v. United States Lines Co., 370 U.S. 31, 82 S. Ct. 1119, 8 L.Ed.2d 313 (1962), reh. denied, 370 U.S. 965, 82 S. Ct. 1578, 8 L. Ed.2d 834 (1962); Delno v. Market Street Railway Co., 124 F.2d 965 (9th Cir. 1942).

“Abuse of discretion” is synonymous with a failure to exercise a sound, reasonable, and legal discretion. Black's Law Dictionary, 10 (7th ed. 1999).

The abuse of discretion standard, as opposed to the de novo standard, affords appropriate deference to the fact finder, recognizing that she has examined the witnesses first hand and is therefore better equipped to make determinations relative to credibility. Consequently, there may be substantial evidence to support findings for either side of a contested issue yet we should refrain from disturbing the trial court's findings even if, in the balance, we disagree with them. This is why substantial evidence is often defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.”

Fern v. Torres, 6 NICS App. 200, 202 (Chehalis Tribal Ct. App. 2001)”

Each of the assignments of error are reviewed to determine if the Tribal Court abused its discretion under TTC 2.20.090(8). The facts found to support the Tribal Court’s entry of the Parenting Plan are reviewed to determine if the Tribal Court’s findings were clearly erroneous. TTC 2.20.090(1)-(3).

DISCUSSION

This was not the first time that the Tribal Court had considered a parenting plan, modifications to a parenting plan, alleged violations of a parenting plan or similar disputes between the parties. The Tribal Court record begins in 2013 and contains over 555 pages. Contentious hearings regarding the care, custody and visitation for this child were held approximately every year since 2013. The Tribal Court Judge who presided over the March 3, 2017, hearing had been responsible for this case for several motions and hearings over at least the fourteen months prior to the hearing on the Parenting Plan, and had presided over at least one contested proceeding prior to the trial that resulted in this appeal of the Parenting Plan.

16 NICS App. 18, ROBINSON v. WILBUR (April 2018) p. 21

Tribal Court Judges are charged with administering justice “To secure the just, speedy, and inexpensive determination of every civil action.” TTC 2.05.030(a). Included within that mandate is the ability, absent an abuse of discretion, to control the presentation of witnesses and the admissibility of evidence at trial.

On February 17, 2017, the Tribal Court ordered that the parties exchange witness lists by February 24, 2017, prior to the trial scheduled on March 3, 2017. Each party filed a witness list, but the discussion with the Tribal Court is unclear as to whether or when the respective witness lists were mailed to the opposing party or when the witness lists were actually received by the opposing party. Appellant told the Court that she had not received Respondent’s witness list until the day of the hearing. Respondent told the Court that he had received Appellant’s witness list the afternoon before the hearing. In any event, neither witness list complied with Court Rule 2.4.1which requires that a witness list that include a summary of the substance of the witnesses’ testimony. Rather than postpone the hearing, which would have necessitated rescheduling the witnesses who were present, the Tribal Court chose to proceed with the trial. The transcript of the subsequent examination and cross-examination shows that both Appellant and Respondent were acquainted with the other side’s witnesses and, indeed, had no trouble in cross-examining the opposing witnesses regarding their direct testimony.

Given the history of this litigation, the record before the Tribal Court and the examination and cross-examination of the witnesses, the Tribal Court did not abuse its discretion by holding the long scheduled hearing and taking testimony from the witnesses who were present.

The Tribal Court excluded declarations offered by Appellant. The declarant witnesses were not present. As opposed to arguments on motions, where sworn affidavits are required, Civil Rule 3.4, there is no provision of the Tulalip Code that requires the Tribal Court to admit declarations instead of live testimony at trial. An exception to the rule requiring physical presence of a witness is Court Rule 3.13(D) which allows the Tribal Court to permit telephonic testimony at the Judge’s discretion. Without Court Rule or Code provision, the decision to allow the declarations into evidence is at the discretion of the Tribal Court. Each party is responsible to make sure that the witnesses supporting that party are present or telephonically available at the time for hearing.

The Tribal Court did not abuse its discretion by excluding the declarations offered by Appellant.

16 NICS App. 18, ROBINSON v. WILBUR (April 2018) p. 22

This issue raises issues of fact, reviewable under the substantial evidence standard, and reliance upon the facts and the inferences from these facts by the Tribal Court in arriving at its discretionary ruling on modifications of the Parenting Plan.

The Tulalip Tribal Code section dealing with modification of parenting plans is TTC 4.20.420, and not TTC 4.20.340, as Appellant argues. TTC 4.20.420 envisions two types of modification of parenting plans, major, TTC 4.20.420(1), and minor, TTC 4.20.420(2). Appellant sought a major modification of the Parenting Plan as shown by her Proposed Parenting Plan which proposes a change of residential placement. TTC 4.20.430(2)(b) and (c). Pursuant to TTC 4.20.430(1), the Tribal Court may not

“…modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the Court at the time of the prior decree or plan, that a change has occurred in the circumstances of the child or his or her custodian and that the modification is necessary to serve the best interests of the child….In applying these standards, the Court shall retain the residential schedule established by the decree or parenting plan unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the custodian in substantial deviation from the parenting plan;

(c) The child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

(d) The Court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan.”

Only (c) is relevant to Appellant’s Motion to modify the Parenting Plan. The Tribal Court carefully reviewed the evidence before it and its Findings of Fact are incorporated in the changes from the prior parenting plan to the Parenting Plan which Appellant challenges. To the extent that the factors of TTC 4.20.340 are relevant in this modification, a reading of the entire record shows the Tribal Court considered these factors. Each fact found or inference drawn from these facts is supported by substantial evidence and were not clearly erroneous in light of the entire record. The Tribal Court’s conclusion that the best interests of the parties’ child are served by the new Parenting Plan are well within the discretion of the Tribal Court and will not be disturbed.

CONCLUSION

The Parenting Plan entered by the Tribal Court is AFFIRMED.

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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.