9 NICS App. 118, EDMOND L. v. MISTI W. (June 2010)
IN THE PUYALLUP TRIBAL COURT OF APPEALS
PUYALLUP INDIAN RESERVATION
TACOMA, WASHINGTON
Edmond L., Petitioner and Appellant,
v.
Misti W., Respondent and Appellee.
No. PUY-CV-05-365 (June 25, 2010)
SYLLABUS*
Trial court issued order requiring all future per capita payments on behalf of tribal minors to be made to the minors’ custodial parent. Court of Appeals interprets statutory phrase “living with both of his/her biological parents” to require the biological parents to be co-domiciled, and holds that statutory provisions require the minors’ per capita funds to be deposited to the pooled custodial account managed by the Tribe and disbursed to the custodial parent only upon an order of the court authorizing such a disbursement for the needs and in the interests of the minors. Tribal court order reversed and remanded.
Before: Suzanne Ojibway Townsend, Chief Judge; Gregory M. Silverman, Judge; Thomas Weathers, Judge.
Appearances: Kimberly S. Turnipseed for Appellant Edmond L.; David B. Knodel for Appellee Misti W.
OPINION
Weathers, J.:
This case calls on us to harmonize the interplay between Puyallup Tribal Code (“PTC”) 1.08.130 and PTC 1.08.140 with respect to tribal per capita payments on behalf of minors.1 The Tribal Court applied PTC 1.08.130 and ordered all per capita payments issued on behalf of the
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two minors in this case to be made to the mother. We reverse and remand with instructions to order all monthly per capita payments, past, present, and future, made on behalf of the two minors to be issued and transferred to the pooled custodial account managed by the Tribe as provided by PTC 10.08.140.
I. Background
In 2005, the father filed a petition for custody of his two tribal member sons after the mother left the state of Washington with the children. Each parent accused the other of drug and/or alcohol abuse, domestic violence, and neglect of the children. Prior to trial, each parent filed multiple declarations from relatives, friends and employers supporting their accusations against the other parent. It appears that the matter never went to trial.
Instead, the parents entered a “Final Agreed Parenting Plan” and a “Final Agreed Order of Child Support.” The parties agreed that the mother would be the primary custodian with the two boys residing the majority of the time with her and that the father would pay $350 per month to the mother in child support. In addition, the Tribal Court ordered that the “father shall deposit each child’s monthly per capita funds into an interest bearing trust fund via direct deposit from the tribe if possible until each child reaches the age of 18, unless otherwise agreed.” The father complied with the order and set up two trust accounts at Tacoma Narrows Federal Credit Union in the names of the boys with the father’s mother as the apparent trustee. The father then deposited per capita funds paid to the boys into each boy’s account.2
In 2008, the mother asked the Tribal Court to adjust the monthly child support and to redirect per capita payments to her as custodian for the two boys. The father objected. After renewed litigation over custody, child support, and per capita payments – including mutual allegations of substance abuse and child neglect – the Tribal Court entered an order on January 30, 2009. The order (1) declined to change custody or modify the 2005 Parenting Plan; (2) referenced the Tribal Court’s prior directive to the parties to submit the question of appropriate child support payments to the Tribal Child Support Enforcement Office; and (3) held that language in the Tribe’s per capita ordinance that “[a]ny per capita payment issued on behalf of a minor or ward shall be used only for the needs and in the interests of the minor or ward” meant that the payments had to be made available to the custodial parent to use for the needs of the minors at the time the payments were disbursed by the Tribe. The Tribal Court opined that the provisions of the 2005 Agreed Support Order directing the per capita payments to be made to the
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non-custodial parent may have been based on a misunderstanding that tribal law prohibited a minor’s per capita payments from being distributed to a non-Indian parent.
In any event, the Tribal Court ordered that all future per capita payments “be issued to the custodial parent, [the mother], on behalf of the minor children” and that the per capita payments could only be used for their needs and in their interests. The Tribal Court also ordered the father to transfer the minor children’s per capita funds held in their respective accounts with the credit union to the trust fund administered by the Tribe.
Following the Court’s January 30, 2009 Order, the father timely filed a notice of appeal and motion for stay. That notice of appeal was never forwarded to the Court of Appeals, apparently because the clerk had earlier and improperly refused to accept a motion filed by the father seeking reconsideration and revision of the Tribal Court’s ruling.
Eventually, the clerk did file the motion for reconsideration and the Tribal Court received briefing on the matter, including an amicus brief from the Tribe explaining that it was not possible for the privately held trust funds at the credit union to be transferred into the trust fund managed by the Tribe. According to the Tribe, it automatically deposits approximately two-thirds of every minor child’s per capita payment directly into a trust fund managed by the Tribe and distributes the remaining one-third to the child’s parents or guardian for the immediate use of the child. The Tribe indicated that no other funds can be deposited into the trust fund managed by the Tribe without disastrous tax consequences for all the minors. The Tribe essentially asked the Tribal Court to rescind its order directing the father to transfer the privately held trust funds to the trustee for the tribally-managed trust fund.
On August 18, 2009, the Tribal Court filed its order effectively reaffirming its January 30, 2009 order.3 As with the prior order, the Tribal Court in its August 18 order again directed that
all per capita payments to the minor children, from the date of this order, shall be issued to the custodial parent and care provider, [the mother], on behalf of the minor children and shall be used only for their needs and in their interests[.]
Now, however, in response to the Tribe's concerns articulated in its amicus brief, the Tribal Court, instead of directing that the past per capita payments being held in trust for the children by the father be transferred into the tribally-managed minor’s trust accounts, ordered the father to transfer those funds directly to the mother.
On August 28, 2009, the father filed a timely Notice of Appeal arguing that the Tribal Court “issued an inappropriate decision changing the previous order which directed Appellant's father to receive and deposit the children’s Per Capita payments into an interest bearing trust
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fund until each child reaches the age of 18.” We have jurisdiction and reverse based on error as to interpretation and/or application of the law. See PTC 4.16.290 and 4.16.400; see also Puyallup Tribe v. Van Every, 8 NICS App. 85, 86-87 (Puyallup Tribal Ct. App. 2008) (standards of appellate review).
II. Analysis
A court’s primary duty in interpreting any statute is to discern and implement the intent of the legislative body. Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). “The starting point must always be the statute’s plain language and ordinary meaning.” Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69 (Hoopa Valley Tribal Ct. App. 2005). When interpreting a code provision, a court considers not only the meaning of the critical word or phrase but also its purpose and placement in the statutory scheme. Skokomish Indian Tribe, 8 NICS App. at 70.
“Where two or more existing code provisions appear to conflict, we have a duty to harmonize them to give effect to each code provision, if by doing so we preserve the sense and purpose of the code provisions and the code as a whole.” Ferris v. Hoopa Valley Tribe, 8 NICS App. 1, 5 (Hoopa Valley Tribal Ct. App. 2007). “When two code provisions are capable of co-existence, unless the Tribal Council has clearly expressed its intent to the contrary, it is the duty of this court to regard each code provision as effective.” Id.
The Tribal Court's August 18, 2009 order that the distributions to the father be deposited into a trust account for minors violated PTC 1.08.130. According to that section:
Any per capita payment that is to be made to a minor or ward shall be made to the person’s care provider, and shall be made in accordance with any applicable court order governing custody, guardianship, or other relevant matter. . . . Any per capita payments issued on behalf of a minor or ward shall be used only for the needs and in the interests of the minor or ward.
PTC 1.08.130. Because the per capita payments were not being distributed to the mother, the custodial parent and care provider, to be used for the needs of the children, the Tribal Court concluded that the agreed disposition of per capita payments violated the Tribal Per Capita Ordinance. The Tribal Court reasoned that the parents could not agree to an alternative disposition as they had done in the 2005 Final Agreed Order of Child Support that would provide for the present needs of the children. Accordingly, the Tribal Court ordered all funds, past and present, not placed in the Tribe’s minor’s trust accounts to be distributed to mother.
However, the next code section, PTC 1.08.140, sets forth a process to be followed “in cases where a minor is not living with both of his/her biological parents”. (Emphasis added). As part of this process, Children’s Services and/or the ICW Liaison must provide the Enrollment Department the names of each minor “whose care provider is only one of two living biological
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parents.” See PTC 1.08.140(a). The Enrollment Department must then send the per capita payments for these minors to a pooled custodial account created and maintained by the Tribe (different from the “minor’s trust accounts” already managed by the Tribe). See PTC 1.08.140(b). The care provider may then seek a Tribal Court order to withdraw funds from that pooled account for the needs of the minor. See PTC 1.08.140(c).
Our job is to harmonize PTC 1.08.130 and PTC 1.08.140. The Tribal Court erroneously focused on PTC 1.08.130 to the exclusion of PTC 1.08.140. Based on their wording and their location within the statutory scheme, we believe the legislative body intended PTC 1.08.130 to be a general rule and PTC 1.08.140 to be an exception to that rule regarding payments on behalf of minors and wards. Ordinarily, we would agree with the Tribal Court that per capita payments to minors must be made to the care provider for the needs of the minor. However, according to the language of PTC 1.08.140, an exception applies if the minor is not living with both biological parents. In that case, the Tribal Court must follow the procedure set forth in PTC 1.08.140 and require the per capita payments to be deposited into a pooled custodial account managed by the Tribe.
The key phrase in PTC 1.08.140 is “not living with both,” for that phrase triggers the application of PTC 1.08.140. We believe the plain and ordinary meaning of “not living with both” means not residing with the two living biological parents together in the same home. This plain and ordinary interpretation is supported by the language in subsection (a) of PTC 1.08.140 that basically defines a minor “not living with both of his/her biological parents” as a minor “whose care provider is someone other than his/her biological parents or whose care provider is only one of two living biological parents.” See PTC 1.08.140(a)(emphasis added). By adding this latter phrase, the legislative body must have anticipated instances where tribal children would be living with and cared for by one of two divorced or separated parents (as opposed to one living parent when the other parent was dead). In the case of divorce or separation – presumably because both parents would not be present to ensure proper use of the funds – the Tribal Council wanted all per capita payments on behalf of tribal children to be pooled in a custodial account subject to the supervision of the Tribal Court.
This interpretation is also supported by the legislative history behind PTC 1.08.140. The Tribal Council adopted PTC 1.08.140 in Ordinance No. 151003 dated October 15, 2003.4 The Ordinance noted that the Tribal Council had concerns that funds paid on behalf of some minors were not being used for the needs of those minors. To remedy this problem, the Tribal Council adopted a new section of the Per Capita Ordinance for payments to children living with other than both biological parents. In other words, the minors whose funds were not being used for their needs were the minors not living with both biological parents. Again, the assumption must have been that if both parents were living in the home together, one could act as a check on the other and ensure that funds paid on behalf of the children were actually being used for the needs
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of the children. So, “living with both of his/her biological parents” must mean residing with the two living biological parents together in the same home (as opposed to the child living part-time with one parent in his home and part-time with the other parent in her home).
Both the Tribal Court and Petitioner at oral argument on appeal acknowledged that the care provider for the two boys was their biological mother. Because the care provider is only one of two living biological parents (and the parents do not live together in the same home), the two boys are “not living with both” of their biological parents for purposes of the Tribal Per Capita Ordinance. The two boys do not reside in the same household together with the two living parents. Instead, they alternate between parents with mother having custody the majority of the time. Accordingly, the Tribal Court should have applied the exception set forth in PTC 1.08.140 rather than follow the general rule set forth in PTC 1.08.130.
III. Conclusion
Based on the foregoing, the Court of Appeals reverses the Tribal Court and remands with instructions that the Tribal Court order all monthly per capita payments, past, present, and future, made on behalf of the two minors, to be issued and transferred to the pooled custodial account managed by the Tribe as referenced in PTC 1.08.140(b). The Tribal Court shall also address in the first instance the issue regarding deposit of bonus checks. The Tribal Court shall also provide a copy of this Opinion to the Tribe's Enrollment Department, Children's Services Program, Indian Child Welfare Liaison, and Law Office. To minimize the administrative burden on the primary care provider, the Tribal Court shall consider entering a standing order governing withdrawal of funds from the pooled custodial account to be reviewed on a timely basis.
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.
On May 21, 2010, after the briefs were filed in this appeal, the Puyallup Tribe renumbered and published its entire Tribal Code on-line and designated the on-line version of the Code as “the official version of the laws of the Puyallup Tribe of Indians.” This Opinion therefore utilizes the new numbering system of the official code, which, along with a Prior Code Cross-Reference Table, can be viewed at:
http://www.codepublishing.com/WA/puyalluptribe/.
The parties dispute whether bonus checks paid to the father on behalf of the two minors should have been deposited into these per capita accounts. The father argued below that these bonus checks were not per capita payments, but rather gifts from the Tribe; so he did not deposit them. Because the Tribal Court never addressed this issue, we remand with instructions that the Tribal Court rule on this issue in the first instance, giving due consideration to the arguments of the parties and Per Capita Ordinance section 1.08.020(g) , which defines the term 'per capita payment' to mean "a voluntary distribution of Tribal revenue made to the Tribal members."
Oddly, the order is dated August 19, 2009 but filed August 18, 2009.
“Ordinance” 151003 is actually in the form of a Council Resolution adopting amendments to the Per Capita Ordinance and does not appear to have ever been codified as a separate ordinance.