7 NICS App. 104, IN RE: J.H.A. (July 2006)
IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS
PORT GAMBLE S’KLALLAM INDIAN TRIBE
KINGSTON, WASHINGTON
In Re the Welfare of: J.H.A., an Indian Youth
Dawn Deam, Appellant,
v.
George Sparks, Appellee.
No. POR-J-9/04-151 (July 14, 2006)
SYLLABUS*
Trial court, presiding over a custody dispute between a tribal member and non-member Indian, ruled it had jurisdiction over the non-member Indian because a letter submitted by the non-member seeking a continuance constituted consent to jurisdiction. Court of Appeals holds that the letter in question was submitted in a separate proceeding, that the trial court erred in not distinguishing the two proceedings, and that even if the letter had been submitted in the current proceeding, it constituted neither a general appearance or a responsive document for purposes of establishing consent to personal jurisdiction under the tribal code. Trial court order reversed and case dismissed.
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Edythe Chenois, Chief Justice; Suzanne Ojibway Townsend, Justice; Eric Nielsen, Justice. |
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Dawn Dean, pro se; Randal Brown, for Appellee George Sparks. |
OPINION
Nielsen, J.:
I. Factual Background and Procedural History
J.H.A., an Indian youth, was born August 26, 2004 to Dawn Deam and George Sparks. Deam, J.H.A.’s mother, is a member of the Suquamish Tribe. Sparks, J.H.A.’s father, is a
7 NICS App. 104, IN RE: J.H.A. (July 2006) p. 105
member of the Port Gamble S’Klallam** Tribe. J.H.A., like his mother, is a member of the Suquamish Tribe.
Sparks lives on the Port Gamble S’Klallam Indian Reservation. Deam lives on the Port Madison Indian Reservation. J.H.A. lives with Deam and has lived with her during the course of these proceedings.
On August 27, 2004, one day after J.H.A.’s’ birth, Sparks filed a Parenting Plan, Visitation Schedule and Child Support petition in the Port Gamble S’Klallam Tribal Court. The court scheduled a hearing on the petition for October 19, 2004 and sent notice of the hearing to Deam by regular mail and certified mail, return receipt requested. The notice sent to Deam by certified mail was returned unsigned.
On October 13, 2004 Deam sent a letter to the court. In her letter, Deam requested the court continue the hearing to November 16, 2004. She requested the continuance because she did not receive the notice until October 6, 2004, was still suffering from health issues as a result of J.H.A.’s birth and she wanted time to seek the assistance of legal counsel. Sparks did not object to the request.
On October 19, 2004, the trial court granted the continuance. It also ordered that, “Mr. Sparks can visit his son as this is his right.” It did not, however, specify when, where, or how long such visits were to occur.
On October 20, 2004 attorney Scott Wheat entered a notice of appearance on behalf of Deam. The notice of appearance states in part that Deam was not “waiving any defenses, including but not limited to lack of jurisdiction.” On October 26, 2004 Deam promptly filed a motion to vacate the October 19, 2004 visitation order on the ground the court did not have personal jurisdiction.
On November 16, 2004, before the court ruled on Deam’s motion, the parties filed a Joint Motion to Dismiss. The parties requested the dismissal on the grounds that “[b]oth Mr. Sparks and Ms. Deam (the Parties) stipulate that jurisdiction was perfected in the Suquamish Tribal Court matter, and that the Suquamish Tribal Court is an appropriate forum to resolve issues of paternity, custody, and child support.” That same day the motion was granted and the court dismissed the case without prejudice.
On May 5, 2005, Sparks filed a motion to Set Temporary Visitation Schedule and Set Temporary Child Support and Notice of Hearing. The motion was filed under the same cause number as the case dismissed by the court on November 16, 2004.
7 NICS App. 104, IN RE: J.H.A. (July 2006) p. 106
On June 21, 2005, Deam filed a Motion to Dismiss on the grounds the court lacked jurisdiction and under the doctrine of forum non conveniens. The court held a hearing on the motion and denied the motion from the bench. On September 20, 2005, the court memorialized its oral ruling in a written order.
In its order denying the motion, the court ruled it had personal jurisdiction over Deam under Chapter 21.01.04(c) of the Port Gamble S’Klallam Tribal Code (PGSTC). Order at 7-8. PGSTC 21.01.04(c) provides, in part, that a nonresident consents to personal jurisdiction by “filing a responsive document.” The court reasoned that Deam’s October 13, 2004 letter requesting a continuance was a “responsive document.” Id. The court also opined, but did not decide, that Deam’s sporadic visits to the Port Gamble S’Klallam Reservation for dental care at the clinic located on the Reservation constituted consent to jurisdiction under PGSTC 1.02.03. Id.
On July 11, 2005, Deam timely filed a Notice of Appeal from the court’s order denying her motion to dismiss. On March 7, 2006, this Court entered an order accepting the appeal under PGSTC 7.03.02(b) of the Port Gamble S’Klallam Tribal Code and scheduled a conference.1 The conference was held telephonically on March 27, 2006. Present at the conference were the parties and Sparks’ counsel, Randall Brown. Deam’s counsel, Scott Wheat, was not present and has taken no further part in this case despite never moving to withdraw.2
On March 30, 2006, this Court entered a scheduling order. The parties submitted their briefs and oral argument was held on June 12, 2006 at the Port Gamble S’Klallam Tribal Court.3
The issue in this case is whether the trial court erred in denying Deam’s motion to dismiss for lack of personal jurisdiction. We hold that it did.
II. Standard of Review
The trial court’s findings are reviewed under the clearly erroneous standard. PGSTC 7.03.04. This Court, however, is not required to give any deference to the trial court’s conclusions of law. Id. The trial court’s findings of fact are not clearly erroneous.
7 NICS App. 104, IN RE: J.H.A. (July 2006) p. 107
Based on its findings, the trial court concluded as a matter of law that Deam consented to personal jurisdiction under PGSTC 21.01.04(c) because her October 13, 2004 letter was a “responsive document.” We disagree.
III. Decision
Deam is not a member of the Port Gamble S’Klallam Tribe and she does not reside on the Port Gamble S’Klallam Reservation. Under Chapter 21 of the Port Gamble S’Klallam Tribal Code, the court acquires personal jurisdiction over a nonmember who is not a resident of the Port Gamble S’Klallam Reservation only if the person: (1) is served with a summons on the Reservation; (2) resided on the Reservation with a child who is the subject of the proceeding; (3) engaged in sexual intercourse on the Reservation when the child may have been conceived, or; (4) consents to the jurisdiction of the court by entering a general appearance, filing a responsive document, or participating in the proceeding unless participation is for the purpose of contesting jurisdiction. PGSTC 21.01.04(b-e).4 The only provision of the code that arguably applies is whether Deam consented to jurisdiction under PGSTC 21.01.04(c) by filing a general appearance or responsive document.
At the request of the parties, who agreed the Suquamish Tribal Court was the more appropriate forum to litigate the case, on November 16, 2004, the trial court dismissed the original petition, albeit without prejudice. A dismissal without prejudice means a case is dismissed but the plaintiff is not barred from refiling the suit. Black’s Law Dictionary, 7th Ed. (1999) at 482. Sparks, however, never refiled the petition. Instead, on May 5, 2005, he filed a motion to Set Temporary Visitation Schedule and Set Temporary Child Support and Notice of Hearing under the same cause number as the suit dismissed on November 16, 2004.
Assuming, arguendo, that the May 5, 2005 motion constituted a refiling of the petition, Deam did not appear in that suit until she filed her motion to dismiss for lack of jurisdiction.5 Her October 13, 2004 letter, submitted in the original suit, had no bearing on this second suit. In her first appearance in this suit she contested jurisdiction. Therefore, the trial court’s reliance on
7 NICS App. 104, IN RE: J.H.A. (July 2006) p. 108
the October 13, 2004 letter to find that Deam consented to the court’s jurisdiction was erroneous and its order denying Deam’s motion to dismiss is reversed.
Even if the initial suit had not been dismissed, Deam’s October 13, 2004 letter does not constitute consent to jurisdiction under the Code. In her letter, Deam requested the court continue its scheduled hearing, in part, so she could retain counsel. Deam’s letter did not respond to Sparks’ petition or any of the allegations in the petition. It was not a complaint, an answer, a reply to a counterclaim, a petition, an answer to a cross claim, a third party complaint, or a third party answer. The letter cannot be read as recognizing that the case was properly pending, that the court had jurisdiction, or as a response to any of the allegations in the petition.
The Code does not define “responsive document” and it is unnecessary for the disposition of this case for this Court to attempt to define all those documents that might be considered responsive.6 We only hold that a pro se letter requesting a continuance of a hearing for the purpose of retaining counsel, in the absence of any response to the allegations contained in a petition or motion on the merits of the case, is not a “responsive document” under PGSTC 21.01.04(c). The trial court erred in concluding the October 13, 2004 letter was a “responsive document” under PGSTC 21.01.04(c) for the purpose of consent to personal jurisdiction.7
Additionally, the letter was not a general appearance for purpose of consent to jurisdiction and waiver of the right to challenge the court’s personal jurisdiction. The Code does not define “general appearance.” Again, it is unnecessary to the disposition of this case for this Court to define all those documents that might constitute a general appearance.
Under common-law practice, a general appearance is implied consent to personal jurisdiction and waives the right to challenge personal jurisdiction. A special appearance permits a party to appear for the sole purpose of attacking jurisdiction without thereby subjecting themselves to the power of the court. Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237 (1878); Mexican Cent. R. Co. v. Pinkney, 149 U.S. 194, 13 S.Ct. 859, 37 L.Ed. 699 (1893). There is a split of authority in those jurisdictions that follow the common law practice on whether a motion for a continuance constitutes a general appearance. 5 Am.Jur.2d Appearance §§ 24-25.
Even if PGSTC 21.01.04(c) is interpreted as a codification of the common law practice of distinguishing a general appearance from a special appearance for purposes of challenging personal jurisdiction, we believe those cases that hold a request for a continuance to retain counsel is not a general appearance for implied consent to personal jurisdiction purposes are the better reasoned. See, Pecoraro v. Kesner, 217 Ill.App.3d 1039 (1991) (a general appearance
7 NICS App. 104, IN RE: J.H.A. (July 2006) p. 109
requires more than a pro se defendant's mere request for a continuance to get an attorney); King v. King, 513 A.2d 773 (Del.Fam.Ct., 1985), (a simple request for a continuance is not a general appearance because it may be made for the purpose of obtaining additional time to inquire into the facts and law pertaining to jurisdictional issues); In re Frumkin, 912 S.W.2d 138 (Tenn.App., 1995) (joint motion for a continuance does not waive right to raise personal jurisdiction issue and courts should only find a general appearance waives a defendant's right to contest personal jurisdiction when the defendant has recognized the proper pendency of the cause by making a motion that goes to the merits or by filing an answer, without challenging personal jurisdiction).
It is particularly unfair to assume a lay person has the sophisticated legal knowledge to understand the arcane differences between a general or special appearance.8 Moreover, if a pro se letter to the court requesting time to retain an attorney is considered a general appearance for the purpose of consent to the court’s jurisdiction under PGSTC 21.01.04 (c), it renders that rule nothing more than a trap for the unwary or those unschooled in the “ancient abracadabra of the law.” Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d at 874. We hold that when a lay person sends a letter to the court requesting a continuance to retain the advice and services of counsel, without responding to any allegations in the petition or making a motion that goes to the merits of the case, the letter is not a general appearance consenting to personal jurisdiction under PGSTC 21.01.04(c).9
Under PGSTC 7.08.01, this Court has the authority to "reverse, affirm or modify the Community Court decision being reviewed or take any other action as the merits of the case and the interest of justice may require." Under the facts in this case and for the above reasons, reversal of the trial court’s order denying the motion to dismiss is warranted by the merits and in the interest of justice.10
7 NICS App. 104, IN RE: J.H.A. (July 2006) p. 110
IV. Conclusion
This Court recognizes Sparks’ ability to visit and introduce his child to his family and the Port Gamble S’Klallam community has been limited at best. Our decision should not be construed as condoning the unilateral limitations Deam has placed on Sparks’ opportunity to visit and bond with his child. We likewise agree with the trial court that it is in the child’s interest that he learn about S’Klallam culture and that he have every opportunity to bond with his S’Klallam relatives. The parties confirmed at oral argument that the parenting issues which are the subject of this proceeding are pending in the Suquamish Tribal Court. We are confident that court will give Sparks a fair hearing and recognize it is in this child’s interest to have the opportunity to bond with his father and his S’Klallam relatives and to learn about his S’Klallam heritage.
For the above reasons, the tribal court’s September 20, 2005 Order denying appellant’s motion to dismiss is reversed. Because we hold that Deam did not consent to personal jurisdiction under PGSTC 21.01.04(c), and because there is no other legal basis for finding personal jurisdiction, the case is dismissed.
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.
Publisher's note: In the original opinion, there were a number of instances where the first "l" in "S'Klallam" was omitted. The editors of this reporter have chosen to use the correct spelling in these instances.
The inordinate delay between the court’s June 21, 2005 oral ruling denying the motion to dismiss, its entry of the written order on September 20, 2005 and this Court’s acceptance of the appeal on March 7, 2006, were the result of an inadequate tape recording of the June 21, 2005 hearing and administrative issues related to the courts. The delays were not the fault of either party.
It is this Court’s opinion that Mr. Wheat’s failure to move to withdraw or participate in this appeal on behalf of his client is nothing short of unprofessional conduct.
At oral argument the parties informed this Court that the Suquamish Tribal Court stayed the case pending in that court until this appeal is decided.
The trial court’s suggestion that Deam consented to jurisdiction under PGSTC 1.02.03 is curious. First, this case is brought under Chapter 21 and therefore the procedural rules under that Chapter apply. PGSTC 21.01.06. Second, the parties all agree that Deam came onto the Reservation only sporadically for dental appointments at the clinic pursuant to contract between the Suquamish Tribe and the Port Gamble S’Klallam Tribe. The clinic, located on the Port Gamble S’Klallam Reservation is the authorized health clinic for Suquamish members. See Brief of Respondent at 15 n. 48. It is unfair to Suquamish tribal members to force them into the Hobson’s choice of receiving medical care and thereby submit to the personal jurisdiction of the Port Gamble S’Klallam Tribal Court, or forego medical care to avoid submitting to the jurisdiction of the court. Moreover, Deam asserted at oral argument that her last visit to the Port Gamble Clinic had been two years prior to J.H.A’s birth.
Because the original action was dismissed, it is doubtful Sparks’ motion can be construed as a refiling of the suit. The motion was filed under the same cause number as the original suit and specifically requests a hearing on the original petition. See Motion to Set Temporary Visitation Schedule and Set Temporary Child Support and Notice of Hearing at 2.
Responsive pleading is defined as “a pleading that replies to an opponent’s earlier pleading.” Black’s Law Dictionary, 7th Ed. (1999) at 1173.
Mr. Sparks’ counsel also acknowledged at oral argument that in his opinion Ms. Deam’s October 13, 2004 letter did not constitute a responsive document.
The Federal Rule of Civil Procedure 12 abolished the distinction between general and special appearances. S.E.C. v. Wencke, 783 F.2d 829, 832 n.3; Martens v. Winder, 341 F.2d 197, 200 (9th Cir. 1965). The federal rules abolished,
the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the court's jurisdiction over him. He is no longer required at the door of the . . . courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within. He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse door which he possessed before he came in. This, of course, is not to say that such keys must not be used promptly.
Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944), quoted in 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1344 (1990) at 171.
Our holding should not be construed to apply to a letter or motion to continue or notice of appearance by counsel as that issue is not before us in this case. If Deam’s counsel had not reserved the right to challenge jurisdiction in his notice of appearance, the notice of appearance would have arguably constituted a general appearance and implied consent to jurisdiction under PGSTC 21.01.04 (c).
Because we decide the trial court did not have personal jurisdiction under tribal law, we do not reach the due process “minimum contacts” or forum non conveniens issues.