18 NICS App. 8, MCNABB v. PELTIER (January 2020)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Colton McNabb, Appellant,
v.
Marsha L. Peltier, Appellee.
NO. TUL-CV-AP-2019-0183 (January 10, 2020)
(Reconsideration Denied, January 31, 2020)
SYLLABUS*
Orders on summary judgement and attorney fees appealed in child custody case. Appellant argued trial court made mistake in procedure by failing to comply with statutory requirements to modify final child support order. Court of Appeals found that statutory requirements appellant referenced apply to modifications of the original support obligation; statutory requirements do not apply in this situation as trial court issued the orders to enforce provisions of child custody/parenting plan and not an original support order. Court of Appeals affirmed trial court orders, ruling trial court did not commit any error in interpreting the law or in procedure.
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Before: |
Ric Kilmer, Presiding Justice; Matthew L.M. Fletcher , Justice; Elizabeth F.M. Nason, Justice. |
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Appearances: |
Colton McNabb, pro se; Adam T. Strand, for the Appellee, Marsha L. Peltier. |
OPINION
Kilmer, J.:
Summary of Proceedings
This matter is once again before the Tulalip Tribal Court of Appeals, this time pursuant to a Notice of Appeal filed May 3, 2019—arguing that the Tribal Court again made a mistake in interpreting the law, or a mistake in procedure, that affected the outcome of the proceedings. (This matter has come before this Court of Appeals several times. It first came before this Court
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as In re the Parentage of A.M., TUL-CV-AP-2009-0299, and later as TUL-CV-AP-2016-0020. We declined to accept an appeal in TUL-CV-AP-2019-0073.)
This is a child custody case between parents that began in 2009. On October 15, 2010, the Tribal Court entered an order establishing custody and a parenting plan. That order was modified June 17, 2013. The parenting plan was again modified January 19, 2016. On June 7, 2016, the Tribal Court also entered a companion Child Support Order.
Mr. McNabb appeals two orders issued by the Tribal Court on April 18, 2019: Order on Judgment Summary and Order on Attorney Fees. (In his Notice of Appeal Mr. McNabb also listed a March 21, 2019 Order on Judgment. That order essentially granted the father's motion for mediation and required financial declarations to be filed by the parties to aid the Court in deciding future orders. It was not a final order, as it anticipated a future hearing and orders, which became the April 18 orders at issue here. The provision of that March 21 order that also required $100 monthly healthcare payments arose from an earlier provision in the January 19, 2016 parenting plan.)
Standard of Review
Section 1.11.10 of the Tulalip Tribal Code (TTC) requires that appealed cases be decided on the basis of the trial court record and any written or oral arguments presented by the parties.
TTC 2.20.020(1) provides: “Any party who claims, in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of the case shall have the right to appeal.”
TTC 2.20.070(1)(e) provides in relevant part: “If the appellant fails to brief all the issues cited in the Notice of Appeal, the issues not briefed may be considered waived and the appellant may not be allowed to raise them at oral argument.”
TTC 2.20.090 provides the standard this Court of Appeals is to use when reviewing a decision of the Tribal Court:
(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;
(4) A conclusion of law shall be reviewed de novo, or without deference to the Tribal Court’s determination;
(5) Construction of an unambiguous contract term is reviewed as a conclusion of law;
(6) A matter which is a mixture of law and fact is reviewed by the standard applicable to each element;
(7) A sentence and the imposition of fine, forfeiture, or other penalty, excluding the
18 NICS App. 8, MCNABB v. PELTIER (January 2020) p. 10
assessment of damages, shall be reviewed as a discretionary determination of the Tribal Court;
(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.
Discussion
Colton McNabb is appealing the April 18, 2019 Order on Judgment Summary. That order was issued after the Court had considered whatever financial declarations had been filed by the parties, and assessed unpaid medical expenses of $3,700 and attorney fees of $1,000 against Mr. McNabb. A separate April 18 Order on Attorney Fees spelled out the Court's statutory authority and factual basis for imposing those attorney fees. Mr. McNabb appeals that order as well.
To prevail on appeal, a party must identify a Tribal Court “mistake in interpreting the law or a mistake in procedure which affected the outcome of the case.” TTC 2.20.020(1).
During oral argument, Mr. McNabb confirmed that his one and only argument for appealing the Order on Judgment Summary is described at #6 of his opening brief, pp. 3-4. (See also p. 7, Relief Sought (a).) His argument is that the Tribal Court made a mistake in procedure, in awarding medical support/healthcare cost arrears of $3,700, and $100 a month in future medical support, by failing to comply with statutory requirements for modifying a final child support order. He argues that TTC 4.10.400 requires that certain procedure be followed and certain findings of fact be made before a child support order may be modified. He argues that the April 18 Order on Judgment Summary is a modification of the June 2016 child support order, and that because the Tribal Court did not comply with TTC 4.10.400, that order is invalid.
Appellee, Ms. Peltier, on the other hand, argues that the Order on Judgment Summary arises from the January 2016 child custody/parenting plan order, not the child support order. She argues that the April 2019 order does not modify the child support order.
TTC 4.10.400 applies to modifications of the “original support obligation.” TTC 4.10.220(2) defines “basic child support obligation” as the “monthly child support obligation of a parent calculated pursuant to the Child Support Guidelines, excluding amounts for day care, health care, and extraordinary expenses as set forth in TTC 4.10.250.” (Emphasis added.) TTC 4.20.270(1)-(4) governs the calculation of the basic child support obligation. Subsections (4)-(6) confirm that child care, health insurance (health care expenses) and extraordinary expenses are not considered part of the “basic child support obligation.” They are considered “additions” to the basic child support obligation.
So, although a child support order might include provisions for child care, health care, and extraordinary expenses (see TTC 4.10.350(1)(a)(iv) and (v)), those expenses are not considered part of the basic child support obligation. Therefore, the provisions of TTC 4.10.400 pertaining to modifications of the original basic child support obligation do not apply. The Court was not required to make any findings of fact that are required for modifying the basic child
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support. And there was no requirement that a motion to modify child support be filed. Therefore, the Tribal Court did not make any mistake in procedure when it did not apply TTC 4.10.400.
Instead, as Ms. Peltier argues, the determination of $3,700 of arrears in health care expenses was made pursuant to the January 19, 2016 child custody/parenting plan order (Attachment A, #7). The Court was enforcing provisions of that order, which had required the father to pay $100 per month. (That $100 figure complies with TTC 4.10.220(10).) Ms. Peltier argues that the Court was exercising its “continuing jurisdiction” over its previous order requiring payment of health care costs. We agree. TTC 4.20.310 provides in relevant part: “The Court has exclusive continuing jurisdiction over any child custody proceeding for which it has issued a judgment.” (See, April 18, 2019 Order on Attorney Fees, footnote 2, where the Court cites its “continuing jurisdiction” authority. See also, the Feb. 14, 2019 Order on Health Insurance, where the Court references its enforcement of the January 2016 Parenting Plan Order's provisions regarding healthcare reimbursements.)
The Tribal Court did not commit any error in requiring Mr. McNabb to pay the $3,700 of arrears. (We note, however, that Section 3.3 of the June 2016 Child Support Order, entitled “Healthcare, Childcare, and Extraordinary Expenses,” and Section 3.4, “Medical Support,” seem to indicate that any healthcare costs from then on were to be governed by that child support order, and no longer by the January 2016 parenting plan order. But subsequent orders indicate that the court is enforcing the healthcare cost provisions of the Parenting Plan.)
Mr. McNabb also appeals the April 18 order that awarded $1,000.00 in attorney fees. He argues that this award was erroneously made pursuant to a provision of the Domestic Relations Code (TTC 4.20.480) and not pursuant to the Child Support Code.
He argues that an award of attorney fees under TTC 4.20.480 is not appropriate in this case because this is a “child support” case under Chapter 4.10 and not a “domestic relations” case under Chapter 4.20. (Opening Brief, p. 4, #1 and page 7, #2; Reply Brief, p. 3, #10.) TTC.4.20.480 provides:
The Court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party for maintaining or defending any proceeding under this code and for reasonable counsel or attorney’s fees or other professional fees in connection therewith, including sums for legal services rendered and costs.
However, this case falls under both codes/chapters. Therefore, an award of attorney fees pursuant to TTC. 4.20.480 was appropriate. The Tribal Court did not make any mistake in interpreting the law. An award of attorney fees is discretionary with the Court. We do not find any abuse of discretion, and as TTC 2.20.090(8) mandates: “A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.”
Appellee's Request for Costs and Attorneys Fees. Appellee Peltier filed a Motion for Costs and Fees, requesting that this Court award her costs and attorneys fees.
18 NICS App. 8, MCNABB v. PELTIER (January 2020) p. 12
Costs: TTC 2.20.100(2) states that the prevailing party “shall be entitled to costs.” Ms. Peltier is the prevailing party. She is entitled to costs—the exact amount to be determined by the Tribal Court upon remand by this Court.
Attorney Fees: TTC 2.20.100(3) states that attorneys fees “may only be awarded in accordance with Chapter 2.05.” TTC 2.05.030(11) provides that “Attorneys fees are not awardable unless otherwise provided by contract, ordinance, statute, or other law.” Ms. Peltier has cited TTC 4.20.480 of the Domestic Relations Code in support of her motion, which we have quoted earlier.
Per TTC 4.20.020(5): “'Court' means the Tulalip Tribal Court, unless context indicates otherwise.” Taking together the context of TTC 2.20.100(3) of the Appeals Chapter, TTC 2.05.030(11) of the Tribal Justice System Code, and TTC 4.20.480 of the Domestic relations Code, we conclude that the Court of Appeals is a “court” within the meaning of TTC 4.20.020(5) that has authority to award attorney fees in this circumstance. And we conclude that Ms. Peltier was “maintaining or defending” a proceeding under the Code: provisions of the child custody order.
Counsel for Ms. Peltier provided persuasive evidence (Exhibit A) with her motion that was not rebutted by Ms. McNabb. In fact, he made no argument whatsoever against this motion for costs and attorney fees, other than to make a generic request that the motion be denied. Reply Brief, p. 4, #12. The motion was for $810.00. During oral argument, appellee's counsel requested an additional amount above the $810.00 because oral argument had been continued and he had to prepare for the continued oral argument hearing. However, Mr. McNabb bore no responsibility whatsoever for the continuance of the oral argument, so he should not be assessed any costs or attorney fees associated with the continuance. This Court awards counsel for Ms. Peltier the originally requested $810.00.
Conclusion and Order
This Court concludes that the Tribal Court did not commit any mistake in interpreting the law and in procedure that affected the outcome of this case, with respect to either April 18, 2019 order.
The two April 18, 2019 orders of the Tribal Court are AFFIRMED. This case is remanded for further proceedings consistent with this Opinion and Order. The Tribal Court shall determine the exact costs to be awarded to Ms. Peltier, and determine an appropriate payment schedule for all costs and attorney fees previously awarded by the Tribal Court ($1,000) and today ($810) by this Court.
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.