RENEE CLOUD v. ESTATE OF NEIL BUCK CLOUD

16 NICS App. 31, RENEE CLOUD v. ESTATE OF NEIL BUCK CLOUD (September 2018)

IN THE SOUTHERN UTE TRIBAL COURT OF APPEALS

SOUTHERN UTE INDIAN RESERVATION

IGNACIO, COLORADO

Renee Cloud, Petitioner/Appellant,

Estate of Neil Buck Cloud, Respondent/Appellee.

NO. 18-AP-0047 (September 4, 2018)

SYLLABUS^*

Decendent’s sister appealed trial court’s determination of heirs claiming judge erred when he found decedent left two surviving children. Court of Appeals affirmed lower court’s determination of the heirs as there was no definite or firm conviction that a mistake was committed or that the finding of fact was clearly erroneous.

Before:	Gregory M. Silverman, Chief Judge; Eric Nielsen, Judge; Thomas Weathers, Judge.
Appearances:	Renee Cloud, pro se; Rebecca A. Pescador, Attorney for Appellees.

OPINION

Silverman, C.J.:

Renee Cloud appeals an Order on Determination of Heirs (“Order”) pursuant to the Southern Ute Indian Tribal Code ("SUITC") § 9-1-115 issued by the Southern Ute Tribal Court on January 26, 2018.

Neil Buck Cloud ("decedent") was an enrolled member of the Southern Ute Indian Tribe who died on March 29th, 2017. To initiate the probate of the decedent’s estate, Ms. Cloud filed a Petition to Probate Estate (“Petition”) on April 6, 2017. Ms. Cloud's petition claimed she was the decedent's sole heir.

16 NICS App. 31, RENEE CLOUD v. ESTATE OF NEIL BUCK CLOUD (September 2018) p. 32

The Tribal Court found that the decedent died intestate, was not married at the time of his death, that his parents predeceased him, and that Ms. Cloud was his only surviving sibling; however, the Tribal Court also found, contrary to Ms. Cloud's claim that the decedent left no issue, that he had two surviving children, Hanley Cloud and Shirley Cloud-Lane.

Having found that the decedent died intestate, the Tribal Court correctly concluded that the decedent’s property descends under SUITC § 9-1-115,. SUITC § 9-1-115 states, in relevant part, that

[i]n the event there is no will admitted to probate, the estate shall be distributed by order of the court as follows … (3) … If there is no surviving spouse, all [of the decedent’s property] shall go to the surviving issue. … [but] (5) If there are no surviving issue or parent, the issue of the parent … will take equally … .

The court concluded that under SUITC § 9-1-115 decedent’s surviving issue, Hanley Cloud and Shirley Cloud-Lane, were his rightful heirs.

Ms. Cloud challenges the court's finding of fact that the decedent left two surviving children, Hanley Cloud and Shirley Cloud-Lane. Ms. Cloud does not contest that the SUITC § 9-1-115 should be applied to determine the decedent’s heir(s). She claims only that the trial judge erred when he found that the decedent left two surviving children, Hanley Cloud and Shirley Cloud-Lane. She asserts the court should have found that the decedent left no issue and, therefore, that under § 9-1-115, she was the decedent’s only heir.

We review the trial court's findings of fact under the clearly erroneous standard of review. SUITC § 3-1-112(b)(1) (“[a] finding of fact will be sustained unless clearly erroneous.”). Under the "clearly erroneous" standard, the appellate court defers to the trial court's factual findings "because the trial court has the opportunity not only to hear all of the testimony and other evidence, but also to directly observe and determine the credibility of each witness.” Hoopa Valley Tribal Council v. Duane Sherman, Sr., 7 NICS App. 9, 11 (Hoopa Valley Tribal Ct. App. 2005), citing Duenas v. Puyallup Tribe, 1 NICS App. 71, 72 (Puyallup Tribal Ct. App. 1990).

The appellate court, in reviewing findings, obviously does not consider and weigh the evidence de novo. As has been recognized on many occasions, the mere fact that on the same evidence the appellate court might have reached a different result does not justify it in setting the [lower] court's findings aside. Nor can the [lower] court's choice between two permissible ways of viewing the trial evidence constitute clear error. The court of appeals may regard a finding as clearly erroneous only if the finding is without adequate evidentiary support or is induced by an erroneous view of the law.

§ 2585 Findings of Fact—The Meaning of “Clearly Erroneous”, 9C Fed. Prac. & Proc. Civ. § 2585 (3d ed.).

16 NICS App. 31, RENEE CLOUD v. ESTATE OF NEIL BUCK CLOUD (September 2018) p. 33

In U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948), the Court wrote that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” The United States Court of Appeals for the Seventh Circuit has offered its own, more colorful, version of this test: “[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must … strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).

The trial court held two evidentiary hearings to determine the decedent’s heirs: the first on July 17, 2017 and the second on January 5, 2018.

At the first hearing, Hanley Cloud and Shirley Cloud-Lane each testified that the decedent was their biological father, that they were raised by their Navajo maternal grandparents in Mesa Verde, and that they had limited contact with the decedent during their childhood. Shirley Cloud-Lane explained that the decedent did not visit them because he had been ostracized by their mother’s family due to continuing distrust between persons of Navajo and Ute descent. Hanley Cloud further testified that when he was 19 years old, he came to Ignacio to find the decedent and when he did, the decedent told him “I always wondered what happened to you.” Hanley Cloud also testified that the decedent tried to get him enrolled as a member of the Southern Ute Indian Tribe, but the Tribal Council denied the request. The decedent’s niece, Danita Baker, testified that Hanley Cloud and Shirley Cloud-Lane were reputed to be the decedent’s children. The tribal court judge found that the testimony of these three witnesses at the hearing was both uncontroverted and credible.

At the hearing, the court admitted without objection an affidavit from Jean Lee Jim, the mother of Hanley Cloud and Shirley Cloud-Lane. Her affidavit corroborates Hanley Cloud's and Shirley Cloud-Lane's testimony, that the decedent was their father, that she and the decedent lived together as a couple, that their relationship ended shortly after the decedent joined the Navy, and that due to cultural differences, the decedent was uncomfortable visiting his children at her family home. Exhibit D attached to the Order.

Hanley Cloud’s birth certificate lists “Neal Cloud” as his father. Ms. Cloud points out that the decedent’s name is incorrectly spelled on this birth certificate (the decedent’s first name is spelled ‘Neal’ instead of ‘Neil’) and that the decedent’s age is listed incorrectly (stating that the decedent was 24 rather than 22). Exhibit A attached to the Order. In her affidavit, Jean Lee Jim, corroborates that the birth certificate contains typographical errors and avers s that the decedent is the person which the birth certificate lists as Hanley Cloud’s father. She also avers that she “never took the time to have the birth certificate corrected” because she “was not aware that it would be of any concern.” Exhibit D attached to the Order.

Ten people testified at the second hearing. Of these, seven testified that the decedent never mentioned that he had any children. The Tribal Court found these

16 NICS App. 31, RENEE CLOUD v. ESTATE OF NEIL BUCK CLOUD (September 2018) p. 34

witnesses credible but noted that it cannot be inferred that the decedent did not have any children merely because he did not mention any children to those witnesses.

Other witnesses testified that Hanley Cloud and Shirley Cloud-Lane are the decedent’s children. Quinton Cloud, the grand-nephew of the decedent, testified that the decedent referred to Shirley Cloud-Lane as his daughter and that when the decedent introduced her to him at the Southern Ute Indian Tribal Museum, he referred to her as his daughter. Quinton Cloud also testified that the decedent mentioned his son Hanley.

Anthony Suina, another grand-nephew of the decedent, testified that the decedent referred to Hanley as his son in stories that the decedent had told him. He also testified that the decedent had introduced Shirley Cloud-Lane as his daughter at Mr. Suina’s high school graduation and that the decedent had referred to Shirley Cloud-Lane and her granddaughter, Savannah, as his family.

Danita Baker expanded on her testimony from the first hearing. She testified that the decedent had a photograph of Shirley Cloud-Lane and her children on the wall at his home and he described them as his daughter and grandchildren. She also testified that the decedent referred to Hanley Cloud and Shirley Cloud-Lane as his children. The trial court also found these three witnesses to be credible.

As noted earlier, with respect to evaluating the credibility and probative value of testimony, a lower court is entitled to significant deference from a court of appeals.

Even if we did not defer to the trial court's factual findings, the evidence supports the court's findings that Hanley Cloud and Shirley Cloud-Lane are the decedent's children. That some witnesses testified the decedent never mentioned to them that he had children does not undermine the substantial evidence that Hanley Cloud and Shirley Cloud-Lane are the decedent’s children. On this record we cannot say that the challenged finding of fact was clearly erroneous.¹ We are not left with the definite and firm conviction that a mistake has been committed.

Accordingly, the Tribal Court’s Order concluding that Hanley Cloud and Shirley Cloud-Lane are the legal heirs of the decedent under SUITC § 9-1-115 is affirmed.

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.

We do not consider Appellate ‘s claim that it was error for the court to grant Hanley Cloud's and Shirley Cloud-Lane's motion to submit DNA evidence because no such evidence was ever admitted and, a fortiori, was not relied upon by the court.