2 NICS App. 166, Wells v. Wells (June 1992)

IN THE NISQUALLY TRIBAL COURT OF APPEALS

NISQUALLY INDIAN RESERVATION

OLYMPIA, WASHINGTON

William Wells, Jr. v. Jeanne Wells

Nos. NIS-CIJ-11/88-205, 206 (June 27, 1992)

SUMMARY

On February 21, 1989, William Wells, Jr., a member of the Nisqually Indian Community, was awarded custody of his two children, M. and K.^* Jeanne Wells, the children's mother and a member of the Quinault Tribe, petitioned unsuccessfully for modification of custody in 1989 and 1990. In a third modification hearing held November 26, 1991, the Nisqually Tribal Court changed custody of the youngest child, K., to her mother. During the hearing the judge spoke with both girls separately but failed to make a record of the interviews. Mr. Wells appealed the change in custody.

The trial court had found that allegations of physical abuse of the children, the father's threat to commit suicide, and his moving the children to Yakima without notice either to the court or to the mother all added up to a substantial change in circumstances. However, the court's modification order included no findings as to whether modification would be in the best interest of the child. The trial transcript was also devoid of evidence that the best interests of the child had been considered, since the judge's interviews with M. and K. were not included. Due to what it considered to be the lack of an adequate factual basis in the record, the Tribal Court of Appeals concluded that the trial judge had abused her discretion in modifying custody. The decision was thus reversed and K. was returned to her father's custody.

FULL TEXT

Before:	Chief Justice Charles R. Hostnik, Associate Justice Elizabeth Fry, and Associate Justice Rose E. Purser.
Appearances:	William Wells, Jr., appeared both pro se and through his attorney, Anita Estupinan Neal; Respondent Jeanne Wells appeared pro se.

2 NICS App. 166, Wells v. Wells (June 1992) p. 167

MEMORANDUM OPINION

FRY, Associate Justice:

This matter came before the Nisqually Tribal Court of Appeals for hearing on June 1, 1992, and June 8, 1992. The court, having reviewed the case records and files, having heard the arguments of the parties, and being fully advised of the premises, issues the following Memorandum Opinion.

FACTUAL SUMMARY

This custody case has a long history of court intervention. The matter began when the Nisqually father filed for temporary custody on November 22, 1988. A mediation was held between the parties which was partially successful. A permanent amended order of custody was entered on February 21, 1989, incorporating their agreement that the father would be awarded permanent custody of both Nisqually children, M. K. Wells, currently age 16, and K. A. Wells, currently age 9--the latter child being the child at issue in this appeal.

The Quinault mother has petitioned for modification of custody three times: in 1989, 1990, and 1991. Custody was retained in the father at the first two hearings. At the last modification hearing on November 26, 1991, the trial court changed custody of the youngest girl to the mother. During that hearing the trial court judge spoke with both girls separately in chambers but did not make a record of the interviews.

The father was held in contempt of court twice within three years for denying visitation to the mother.

ISSUES

DISCUSSION

1. Modification of Custody

There is no direct provision of the Nisqually Tribal Code which governs our analysis in this appeal. The trial court utilized Revised Code of Washington, Section 26.09.260 for "guidance and consistency" while holding that it was not bound by it. This court agrees that we may look to the statutes of the state of Washington for guidance. Moreover, in this case both parties agree that RCW 26.09.260 is the applicable statute. Additionally, in our view, the Washington State case law construing the statute is also relevant.

2 NICS App. 166, Wells v. Wells (June 1992) p. 168

RCW 26.09.260 provides as follows:

(1) Except as otherwise provided in subsection (4) of this section, the court shall 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 substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.

(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless ...

* * *

(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, or the parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070.

Changes of custody are viewed as highly disruptive to the child. Anderson v. Anderson, 14 Wn. App. 366, 541 P.2d 996 (1975). Therefore, there is a strong presumption that the initial custody arrangements should be maintained unless the moving party can show a substantial change in the circumstances of the child or the custodial parent such that it would be in the best interests of the child to require the modification. George v. Helliar, 62 Wn. App. 378 (1991); In Re Marriage of Roorda, 25 Wn. App. 849, 611 P.2d 794 (1980). The noncustodial parent has the burden of proving that the custodial environment is detrimental. Helliar, 62 Wn. App. at 383.

A parent's violation of a court order does not control as to the issue of custody, and it will only be considered a factor in determining the best interest of the child. Marriage of Murphy, 48 Wn. App. 196, 737 P.2d 1319 (1987); Anderson, 14 Wn. App. at 369. Wrongful removal of a child from the state in violation of the dissolution decree should also not be the sole basis upon which a modification is made. Rather, the modification should, in addition, be based upon a material change in conditions demonstrated to be detrimental to the child's welfare. Christopher v. Christopher, 62 Wn.2d 82, 381 P.2d 115 (1963).

2 NICS App. 166, Wells v. Wells (June 1992) p. 169

An appellate court, in reviewing a modification of a dissolution decree, must determine only whether such a modification constitutes a manifest abuse of discretion. Selivanoff v. Selivanoff, 12 Wn. App. 263, 529 P.2d 486 (1974). In this case, the trial court did find a sufficient basis to hold that there was a substantial change of circumstances due to the alleged threat of suicide by the father, the allegations of physical abuse of the child, and the father's move to Yakima without notice of his move or location to either the court or the mother.

However, under RCW 26.09.260(1), the court is required to determine not only the existence of a substantial change of circumstances, but also whether the best interest of the child would be served by a change in custody. We do not find where the trial court inquired into whether the best interest of the child would be served by a change in custody. This court reviewed the modification order to determine whether there was an implied analysis of best interest and found none. The trial court's only factual discussion pertained to bases for a substantial change in circumstances.

The modification might have been appropriate if the trial court had applied the best interest test, and if the outcome had favored the mother, since evidence exists to support that Section (2)(d), and possibly Section (2)(c), of the statute had been met. However, without a review of whether the proposed change was in the best interests of the child, this court is unable to affirm the trial court's decision.

2. Record on Review

This court was unable to discern an application of the best interest test from the trial transcript since it did not include the vitally important information from the interviews with the daughters. It may very well be that the trial court engaged in this inquiry. But neither the parties nor the reviewing court are able to uphold the decision of the trial judge without an adequate factual basis in the record. We find that failure to make a recording of the testimony received in chambers with the children constitutes a manifest abuse of discretion requiring reversal.

CONCLUSION

Therefore, this court can only conclude that the trial court did abuse its discretion in changing custody to the mother without application of the "best interest" test and in failing to keep a record of the in-chambers conversations with the minors.

REVERSED, and the custody of K. Wells is returned to the father. This matter is remanded for further proceedings consistent with this opinion.

HOSTNIK, Chief Justice, and PURSER, Associate Justice, concur.

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