6 NICS App. 56, THOMAS v. ZACARIAS (June 2001)
IN THE BURNS PAIUTE TRIBAL COURT OF APPEALS
BURNS PAIUTE INDIAN RESERVATION
BURNS, OREGON
Dionne Marie Thomas, Appellant,
v.
Alroy Teeman Zacarias, Respondent.
No. DO-001-97 (June 22, 2001)
SYLLABUS*
Trial court denied non-custodial parent’s request for a change in custody of the parties’ minor daughter based on a finding that there had not been a sufficient change of circumstances to justify a change in custody. Court of Appeals holds that its authority is limited to a review for error by the trial court and, finding none, affirms the order of the trial court.
Before: Robert J. Miller, Chief Justice; Volney Cothran, Justice; Darwin S. Long Fox, Justice.
Appearances: Dionne Marie Thomas, Appellant, pro se; Alroy Teenian Zacarius, Respondent, pro se.
OPINION
This matter came before the Burns Paiute Tribal Court of Appeals for oral argument via telephonic conference on June 21, 2001 pursuant to a Notice of Appeal filed by Dionne Marie Thomas on April 5, 2001. Ms. Thomas appeals from the trial court's March 6, 2001 order denying her request for a change in custody of the parties' minor daughter. We affirm the judgment of the trial court.
I. Background
On April 27, 1998 the Burns Paiute Tribal Court (trial court) granted full legal custody of J.T.Z., born March 6, 1991, to her father, Respondent herein, Alroy Teeman Zacarias. J.T.Z. has resided with her father since that date. J.T.Z.'s mother, Dionne Marie Thomas, has had liberal visitation rights with her child.
6 NICS App. 56, THOMAS v. ZACARIAS (June 2001) p. 57
On January 11, 2001, Ms. Thomas petitioned the trial court for a change in legal custody with regard to J.T.Z. The trial court held a hearing on February 26, 2001, during which both Mr. Zacarias and Ms. Thomas appeared pro se. Each party also called witnesses to testify on his or her behalf.
On March 6, 2001 the trial court issued its written Findings of Fact, Conclusions of Law and Judgment. Reviewing the testimony and facts presented before it within the context of the best interest of the child, the trial court found "there has not been a sufficient change of circumstances to justify changing custody of the parties' minor daughter from [Mr. Zacarias] to [Ms. Thomas]." Based on this finding, the trial court left J.T.Z. in the legal custody of Mr. Zacarias. It is from this order that Ms. Thomas appeals.
II. Jurisdiction
This Court has personal jurisdiction over the parties to this matter pursuant to Chapter I, §B(1)(b)(1) and (2) of the Burns Paiute Tribal Code. This Court has subject matter jurisdiction pursuant to Chapter 1, §§B(l)(b) and E(l) and Chapter VI of the Tribal Code.
III. Scope of Review
This Court's scope of review is limited to those facts and issues previously raised to the court below. Chapter I, §E(1) of the Tribal Code provides:
The Court of Appeals shall have jurisdiction to review final orders, commitments and judgments of the Trial Court. On appeal, the record and decision of the Trial Court shall be reviewed for error .... [Emphasis ours].
Keeping this limitation in mind, this Court did not consider any new evidence in rendering its decision.
IV. Discussion
Chapter VI of the Burns Paiute Tribal Code codifies the Family Laws of the Burns Paiute Indian Tribe. Section C(6)(b) confers upon the tribal court the authority to:
provide for the care and custody of the minor children of the parties and for the visitation rights of the parent not having custody. The Court shall decide the issues of custody and have visitation of the minor children based on what is best for the children ….
6 NICS App. 56, THOMAS v. ZACARIAS (June 2001) p. 58
Further, chapter VI, §C(7) allows either party to petition the court to change the provisions and gives the court discretion to modify its judgment "[i]f the petitioner can show that the circumstances have changed since the time of the final judgment.".1 [Emphasis ours]
Ms. Thomas, as the petitioner for a custody change in the court below, bore the burden of showing that, in fact, there had been a significant change in circumstances since April 27, 1998 to warrant removing J.T.Z. from Mr. Zacarias' custody and placing her in Ms. Thomas' custody. The trial court found that she had not met this burden and left J.T.Z. in Mr. Zacarias' custody.
Upon review of the record below and consideration of the parties' written and oral arguments on appeal, it is this Court's opinion that sufficient evidence exists to support the trial court's findings of fact. We agree with the trial court that Ms. Thomas did not show a sufficient change in circumstances to warrant a change in custody. Moreover, Ms. Thomas does not allege, nor do we find, that the trial court made an error of law or procedure requiring reversal or remand. This Court, however, would remind the parties that this decision does not preclude the parties from bringing a future action in trial court, pursuant to chapter VI, §C(7), for a change in custody when there has been a significant change in circumstances.
V. Conclusion and Order
Therefore, based on the foregoing, we hereby affirm the March 6, 2001 Findings of Fact, Conclusions of Law and Judgment of the trial 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.
Chapter VI, §C(6)(b) applies to child custody situations regarding unmarried persons. Chapter VI, §C(9)