6 NICS App. 192, PECK v. TOOKE (October 2004)
IN THE BURNS PAIUTE TRIBAL COURT OF APPEALS
BURNS PAIUTE INDIAN RESERVATION
BURNS, OREGON
Julie Peck, Appellant,
v.
Robert Tooke, Appellee.
No. DO-002-03 (October 19, 2004)
SYLLABUS*
Trial court awarded custody of the parties’ three children to the children’s father based on the best interests of the children. Court of Appeals holds (1) although trial court did not make an explicit finding that a change of circumstances had occurred since the prior custody order, detailed findings of fact made by the trial court did in fact establish that a change of circumstances had occurred, thereby satisfying the code requirement that a petitioner show a change in circumstances; (2) Appellant’s allegations of factual and procedural error by the trial court lacked merit; and (3) substantial evidence in the record supported each of the trial court’s factual findings. Trial court order affirmed.
Before: Robert J. Miller, Chief Justice; James S. Underwood, Jr., Justice; J.D. Williams, Justice.
Appearances: Julie Peck, Appellant, pro se; Robert Tooke, Appellee, pro se.
OPINION
This matter came before the Burns Paiute Tribal Court of Appeals for oral argument on August 27, 2004, pursuant to a Notice of Appeal filed by Julie Peck on April 5, 2004. Ms. Peck appeals from the trial court’s March 8, 2004 Custody Order awarding custody of the parties’ three children to Appellee Robert Tooke. We affirm the judgment of the trial court.
I. Background
On October 5, 2001, the marriage of the parties was dissolved by default decree and the custody of the parties three children was awarded to Appellant Julie Peck, with the father, Appellee Robert Tooke, being ordered to pay $50.00 per child per month in child support. On
6 NICS App. 192, PECK v. TOOKE (October 2004) p. 193
January 13, 2004, the Burns Paiute Tribal Court (trial court) issued a Temporary Custody Order granting custody of the parties’ three children to the father. The trial court heard testimony from both parties, who appeared pro se, as well as Tribal Social Services Director Michelle Bradach at a hearing which commenced on January 13, 2004 and was continued to and concluded on March 2, 2004. The Court also considered exhibits filed by the parties. Finally, the trial court considered the December 18, 2003 hearing testimony from a related juvenile proceeding, Burns Paiute Tribal Court No. JV-005-03.
Citing the mother’s erratic behavior and relationship with a convicted sex offender; the father’s stable employment, home life and provision of daycare and schooling for the children; the totality of the evidence and the best interests of the children, the trial court entered a final Custody Order on March 8, 2004, effective as of March 2, 2004, granting full legal custody of all three children to Appellee Robert Tooke and ordering Appellant Julie Peck, to pay $50.00 per child per month in child support. The trial court granted Ms. Peck visitation rights for the second and fourth weekend of each month and holiday, birthday and summer vacation visitation in accordance with the provisions of the State of Oregon’s Standard Parenting Plan. It is from this order that Ms. Peck 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 I, §§B(1)(b) and E(1) and Chapter VI of the Tribal Code.
III. Scope of Review.
As the Burns Paiute Court of Appeals found in Thomas v. Zacarias, No. DO -001-97, (Burns Paiute Tribal Ct. App., June 2001), this Court’s review is limited to those facts and issues previously raised to the trial court, and that the record of decision of the trial court shall be reviewed for error. See also Burns Paiute Tribal Code Chapter I, §E(1).
IV. Discussion
A. Change in Circumstances
Chapter VI of the Burns Paiute Tribal Code codifies the Family Laws of the Burns Paiute Indian Tribe. Chapter VI, §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. 192, PECK v. TOOKE (October 2004) p. 194
Chapter VI, §C(6)(c) of the Tribal Code grants the Tribal Court authority to order payments by one or both of the parties for the support of their minor children.
Chapter VI, §C(7) of the Tribal Code allows either party to petition the court to change the provisions of a decree of dissolution and gives the court discretion to modify the prior order “[I]f the petitioner can show that the circumstances have changed” since the entry of the prior order.
In this case, the trial court made no explicit finding in either its Temporary Order of January 13, 2004 or its final Order of March 2, 2004 that there had been a change of circumstances. However, the specific findings set forth in the trial court’s final Custody Order do in fact establish a change of circumstances since the entry of the decree of dissolution. The trial court specifically found, among other things, that Ms. Peck’s conduct “over the past several months” had been “erratic;” that a stalking protective order based on “alarming or coercive” conduct had been entered against Ms. Peck subsequent to the dissolution; that Ms. Peck had entered into a relationship with a twice convicted rapist subsequent to the dissolution; and that one of the children had recently run away. The trial court also specifically found that, following his default for failure to appear at the dissolution proceeding and a prison term, the conduct of Mr. Tooke has stabilized; that he has been continuously employed; and that he has maintained a home and provided for the daycare and the schooling of the children. While not specifically articulated as a formal finding, the trial court’s orders and the record also point to another significant change in circumstances, which is that at least as early as the January 13, 2004 Temporary Custody Order, the children were actually residing with the father.1
Based on the evidence and record discussed above, this Court finds that the trial court did in fact, if not in explicit legal language, describe a change in circumstances sufficient to satisfy the requirements of Burns Paiute Tribal Code Chapter VI, §C(7). Moreover, while Appellant’s Notice of Appeal, opening brief and reply brief allege a number of procedural and factual errors by the trial court, she raises no argument that a change of circumstances had not occurred, thereby waiving that potential argument.
B. Lack of Trial Court Error
Construed liberally, Appellant’s Notice of Appeal and briefs assert several factual and procedural errors by the trial court. Appellant challenges no specific finding of fact by the trial court, but rather argues variously that the trial court lacked sufficient evidence, relied on incompetent evidence and/or relied on an improper burden of proof. Appellant’s claims of procedural error include the above-cited challenges to the trial court’s factual findings, as well as that the trial court prohibited Appellant from introducing evidence, ignored evidence she did introduce, relied on hearsay evidence, improperly relied on the testimony of the Tribal Social Services Director, otherwise ignored the Rules of Evidence, abused its discretion, and acted in a
6 NICS App. 192, PECK v. TOOKE (October 2004) p. 195
biased and partial manner lacking in integrity. Appellant argues these asserted procedural errors by the trial court deprived her of due process.
This Court has carefully reviewed the record before the trial court, including the tape recordings of the two days of hearing conducted by the trial court. This Court finds Appellant’s contentions regarding factual and procedural error to be without merit. At no time did the trial court prohibit Ms. Peck from introducing evidence or otherwise abuse its discretion or act in a biased manner. Ms. Peck had ample opportunity between the January 13 and March 2, 2004 hearings to gather and then present whatever information and evidence she wished at the March hearing. Instead, on the tape of the March hearing she is heard to explain that she had meant to get that evidence, indicating her failure to present her evidence to the trial court. The tape recordings of the hearing also includes testimony from Michelle Bradach, the Tribe’s Social Services Director, that Ms. Peck had not had any contact with her during the time between the January hearing giving temporary custody to Mr. Tooke and the hearing where the final decision was to be made March 2, 2004. Ms. Peck’s opening brief acknowledges that at least some of the evidence she claims was “not allowed” was “not … even offered.” Similarly, Ms. Peck appears to state in her opening brief that her perception of bias and asserted deprivation of due process were the result of her own ignorance of her legal rights, as opposed to error by the trial court. At oral argument before this Court, Ms. Peck was asked to explain what specific evidence the trial court prohibited her from presenting. While Ms. Peck again made general claims that the Trial Court prohibited her from introducing evidence, she was not able to identify a single pleading, exhibit, witness or other piece of evidence that was not allowed by the trial court.
Clearly, there can be no error where the trial court does not consider evidence that was not even offered. There is no evidence or suggestion in the record that the trial court ignored evidence that was introduced by Ms. Peck. There is substantial evidence in the record to support each of the trial court’s factual findings.2
V. Conclusion and Order
Where sufficient evidence is found to support the trial court’s findings and no error of law or procedure is found, under Burns Paiute Tribal Code Chapter I, §E(1), the Court of Appeals must affirm the decision of the trial court. This Court, finding sufficient evidence in the record and finding no error of law or procedure, hereby AFFIRMS the March 8, 2004 Custody Order 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.
The January 13 Order states that temporary custody shall “remain” with the father.
There is no indication that the trial court relied on hearsay evidence in reaching its factual findings. Appellant’s argument regarding the “burden of proof” for establishing her drug and alcohol abuse was irrelevant. This was a civil, not criminal proceeding. The trial court was free to hear testimony regarding drug and alcohol use and make findings based upon a preponderance of the evidence. Moreover, the trial court’s finding that both parties abused drugs and alcohol was limited to the time period “during the marriage,” and therefore could not form the basis of the court’s modification of the decree of dissolution.