IN THE SUPREME COURT FOR THE STATE OF ALASKA

Transcription

1 IN THE SUPREME COURT FOR THE STATE OF ALASKA ASA'CARSARMIUT TRIBAL COUNCIL, vs. APPELLANT JOHN D. WHEELER III JEANETTE MYRE, APPELLEES. Case No.: S Tral Case No. 3AN APPEAL FROM THE SUPERIOR COURT, THIRD JUDICIAL DISTRICT AT ANCHORAGE THE HONORABLE ANDREW GUIDI PRESIDING BRIEF OF APPELLEE Carl D. Cook AK. Bar No LAW OFFICE OF CARL D. COOK, P 501 West Northern Lght Blvd. SUITE 203 Anchorage, Alaska (907) ATTORNEY FOR APPELLEE JOHN D WHEELER, III Fled n the Supreme Court of The State of Alaska, ths _]_ day of L, 2014 leputy Clerk

2 I I I I I I IN THE SUPREME COURT FOR THE STATE OF ALASKA ASA'CARSARMIUT TRIBAL COUNCIL, vs. JOHN D. WHEELER III, JEANETTE MYRE, APPELLANT, APPELLEES. Case No.: S Tral Case No. 3AN Cl APPEAL FROM THE SUPERIOR COURT, THIRD JUDICIAL DISTRICT AT ANCHORAGE THE HONORABLE ANDREW GUIDI PRESIDING Fled n the Supreme Court of The State of Alaska, ths _ _ day of L, 2014 Marlyn May, Cle: BY : _p Q. / & kv Deputy Clerk BRIEF OF APPELLEE Carl D. Cook AK. Bar No LAW OFFICE OF CARL D. COOK, P.C 501 West Northern Lght Blvd. SUITE 203 Anchorage, Alaska (907) ATTORNEY FOR APPELLEE JOHN D. WHEELER, III

3 TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES... TEXT OF STATUTES AND COURT RULES PRINCIPALLY RELIED UPON... V STATEMENT OF THE CASE... 1 STANDARD OF REVIEW...8 ARGUMENT I. ASA'CARSARMIUT DOES NOT HAVE STANDING TO APPEAL THE TRIAL COURT'S CHILD CUSTODY ORDER IN THIS MATTER... 9 II. THE ASA'CARSARMIUT TRIBAL COURT ISSUED THE INITIAL DETERMINATION...10 A. Asa'carsarmut Trbal Court Proceedngs B. Asa'carsarmut Trbal Court Exercsed Contnung Jursdcton When Mr. Wheeler Pettoned ATC For Increased Vstaton III. UNDER THE FACTS OF THIS CASE IT IS CLEAR THAT THE SUPERIOR COURT ENGAGED IN A COMITY ANALYSIS REGARDING THE TRIBAL COURT'S CUSTODY ORDER...13 IV. THE UCCJEA DOES NOT COMPEL THE CONCLUSION THAT THE TRIBAL COURT HAD EXCLUSIVE JURISDICTION A. The Trbal Court Dd Not Err In Interpretng Alaska's UCCJEA, AS , et. seq. As Excludng Trbal Courts Wthn The Meanng Of "Court" In AS (6) And Dd Not Err In Declnng To Regster The Asa'carsarmut Trbal Court Custody Order In Lght Of The Court's Pror Pror Precedents, Partcularly State v. Natve Vllage of Tanana, 249 P.3d 734 (Alaska 2011) B. The Tral Court Dd Not Err In Concludng That It Had "At Least Concurrent Jursdcton Over The Issue Of Jacob's Custody."... 18

4 C- The Tral Court Properly Had Jursdcton Over The Custody Issues And The Alaska Natve Chld In Ths Matter In Accordance Wth The Requrements of Alaska's Unform Chld Custody Jursdcton and Enforcement Act (UCCJEA), AS , et seq.. And In Lght Of Pror Precedents Includng State v. Natve Vllage of Tanana, 249 P.3d 734 (Alaska 2011) V. THE SUPERIOR COURT PROPERLY HAD JURISDICTION OVER THE CUSTODY ISSUES IN THIS MATTER AND DID NOT ERR BY ENTERING A FINAL CUSTODY DECREE AND FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCLUSION... 27

5 TABLE OF CASES AND AUTHORITIES Cases Federal Cases: Page Flast v. Cohen, 392 U.S. 83 (1968)... 9 Iowa Mutual Insurance Co. v. LaPlante. 480 U.S. 9 (1987)...14 Natonal Farmers Unon Insurance.Co... v. Crow Trbe of Indana, 471 U.S. 845 (1985) Oklahoma Tax Commsson v. Chcksaw Naton, 420 U.S. 425 (1975) Unted States v. SCRAP, 412 U.S. 669 (1973)... 9 State Cases: Alaska Gen. Alarm Inc. v. Grnnell, 1 P.3d 98 (Alaska 2000)..8 Alaskans for a Common Language, Inc. -V. Krz, 170 P.3d 183 (Alaska 2007)..,... 8,16 Atkns v. Vgl. 59 P.3d 255 (Alaska 2002) Beck v. Dept., of Transp. & Publc Facltes., P.2d 105 (Alaska 1992)... TV Glbert M. v. State, 139 P.3d 581 (Alaska 2006) Glaman v. Krk, 29 P.3d 255 (Alaska 2001)... 8 Gun v. H a, 591 P.2d 1281 (Alaska 1979)... 8 Healv Lake Vlage, d/b/a Mendas Cha-ag Trbe v. M t. McKnley Bank and Healy Lake Tradtonal Councl, S (Alaska 2014) Howlett v. Hewlett, 890 P.2d 1125 (Alaska 1995) John v. Baker, 982 P.2d 738 (Alaska 1999)..8,15,17-19,13,22-23 John v. Baker, 30 P.3d 68 (Alaska 2001)... 8

6 L. Street Investments v- Muncpalty of Anchorage, 307 P.3d 965 (Alaska 2013) Moore v. State, 553 P.2d 8 (Alaska 1976) Natve Vllage of Nenana v. State. Department of Health & Socal Servces. 722 P. 2d 219 (Alaska 1986) Phlbn v. Matanuska-Sustna Borough, 991 P.2d 1263 (Alaska 1999) :...; Puller v. Muncpalty of Anchorage, 574 P.2d 1285 (Alaska 1978) State v. jnfatve.--vllage of Tanana. 249 P.3d 734 (Alaska 2011)... 8,15,17-18,20- State.v. Alaska State Employees A s s'n/. AFSCME Local 52., *923 P.2d 18 (Alaska 1996) f State v. Campbell, 536 P. 2d 105 (Alaska 1975)., Steven D. v.. Ncole J.-, 308 P.3d 875 (Alaska 2013) Trustees _of. Alaska v. State, 736 P.2d 324 (Alaska 1987).,... Wagstaff v. Superor Court. Famly Dvson P. 2d (Alaska 1975) Federal Statutes: 25 U.S.C Legslatve Hstory 20th Alaska Legslature Commttee, House Journal, January 20, th Alaska Legslature Commttee Mnutes House Health Educaton & Socal Servces... 20th Alaska Legslature Commttee Mnutes House Judcary Commttee... 20th Alaska Legslature Commttee Mnutes Senate Health Educaton & Socal Servces th Alaska Legslature Commttee Mnutes Senate Judcary

7 TEXT OF STATUTES AND COURT RULES PRINCIPALLY RELIED UPON 25 U.S.C Defntons For the purposes of ths chapter, except as may be specfcally provded otherwse, the term - (1) "chld custody proceedng" shall mean and nclude - () "foster care placement" whch shall mean any acton removng an Indan chld from ts parent or Indan custodan for temporary placement n a foster home or nsttuton or home of a guardan or conservator where the parent or Indan custodan cannot have the chld returned upon demand, but where parental rghts have not been termnated; () "termnaton of parental rghts" whch shall mean any acton resultng n the termnaton of the parent-chld relatonshp; () "preadoptve placement" whch shall mean the temporary placement of an Indan chld n a foster home or nsttuton after the termnaton of parental rghts, but pror to or n leu of adoptve placement; and (v) "adoptve placement" whch shall mean the permanent placement of an Indan chld for adopton, and ncludng any acton resultng n a fnal decree of adopton. Such term or terms.shall not nclude a placement based upon an act whch, f commtted by an adult, would be deemed a crme or upon an award, n a dvorce proceedng, of custody to one of the parents. AS (c) The court shall determne custody n accordance wth the best nterests of the chld under AS In determnng the best nterests fo the chld the court shall consder (1) the physcal, emotonal, mental, relgous, and socal needs of the chld; (2) the capablty and desre of each parent to meet these needs; (3) the chld's preference f the chld s of suffcent age and capacty to form a preference; (4) the love and affecton exstng between the chld and each parent; (5) the length of tme the chld has lved n a stable satsfactory envronment and the desrablty of mantanng contnuty; (6) the wllngness and ablty of each parent to

8 facltate and encourage a close and contnung relatonshp between the other parent and the chld, except that the court may not consder ths wllngness and ablty f one parent shows that the other parent has sexually assaulted or engaged n domestc volence aganst the parent or a chld, and that a contnung relatonshp wth the other parent wll endanger the health or safety of ether the parent or the chld. (7) any evdence of domestc volence, chld abuse, or chld neglect n the proposed custodal household or a hstory of volence between the parents; (8) evdence that substance abuse by ether parent or other members of the household drectly affects the emotonal or physcal well-beng of the chld; (9) other factors that the court consders pertnent.

9 STATEMENT OF THE CASE On December 3, 2007 the Asa'carsarmut Trbal Court (ATC) ssued an order assumng jursdcton over the partes mnor chld, J.W., solely upon Ms. Myre's petton. (Exc. 71) Ms. Myre and the mnor chld are members of the Asa'carsarmut Trbe and Mr. Wheeler s not. ATC awarded prmary physcal custody to Ms. Myre on February 7, (Exc ) Durng Mr. Wheeler's vstaton wth J.W. n December 2011 Mr. Wheeler became concerned about returnng J.W. to M s. Myre's care. As a result, Mr. Wheeler contacted ATC through Jerry Rechln on December 30, 2011, requestng a hearng to seek full custody of hs son. (Exc 76-78) Mr. Rechln repled on January 3, 2012 and nformed Mr. Wheeler nothng was currently before the trbal court n ther custody matter and that he would need to make any requests n wrtng. (Exc ) On January 11, 2012, Mr. Wheeler fled hs complant for custody n the Anchorage Superor Court. (Exc. 81) Fled wth Mr Wheeler's complant was Mr. Wheeler's chld custody jursdcton affdavt. (Exc ) In Mr. Wheeler's chld custody jursdcton affdavt Mr. Wheeler provded nformaton that J.W and Ms. Myre had resded n Anchorage snce June (Exc. 83) Ms. Myre dd not object to ths nformaton or provde contrary nformaton. Ms. Myre's counsel entered hs appearance nto the custody case on February 3, (Exc. 86)

10 Out of safety concerns for the mnor chld, hmself, and hs famly, Mr. Wheeler fled a petton for a domestc volence protectve order on February 8, (Exc ) In hs petton for a domestc volence protectve order Mr. Wheeler notfed the court of the trbal custody order regardng J.W. (Exc. 93) The court granted Mr. Wheeler's petton for a 20-Day Ex Parte Domestc Volence Protectve Order on February 9, (Exc. 96) The court found that t had jursdcton over the partes and the subject matter. (Exc. 98) Mr. Wheeler's petton for a long-term protectve order was assgned to Judge Gud, the judge presdng over the custody case. (Exc. 97) In response to Mr. Wheeler's custody complant Ms. Myre fled a Moton to Compel Return of Chld and for Wrt of Assstance on February 10, (Exc ) In ths moton Ms. Myre requested the court order Mr. Wheeler to return J.W. or for the court to ssue a Wrt of Assstance. It was also ndcated n Ms. Myre's moton that she would seek modfcaton of the trbal court's custody order. "From that pont, she wll lkely seek correspondng modfcaton of the trbal court order to reflect the need to lmt and supervse Mr. Wheeler's future vstaton and contact wth Jacob." (Exc. 110) Wth her moton to compel Ms. Myre also fled a Moton for Expedted Consderaton of her Petton to Regster Trbal Court Custody Order. (Exc ) In Ms. Myre's moton for expedted

11 consderaton she notes that "there s not an exstng Alaska statute or court rule on pont that specfes the authorty and procedure for regsterng an Alaska trbal court order n Alaska state court." (Exc. 129) The tral Court dened Ms. Myre's petton to regster the trbal court order because "Alaska dd not nclude the defnton of trbe or adopt secton 104." (Exc. 137) The tral court nterpreted ths excluson as lmtng enforcement to state court chld-custody determnatons. (Id.) The tral court dd note that Washngton dd nclude provsons that related to the enforcement of trbal court custody orders n ther adopton of the UCCJEA. (Exc. 138) The court drected Ms. Myre to pursue enforcement n Washngton. (Id.) Ms. Myre dd not fle a moton to reconsder the court's order denyng her petton to regster the trbal court order, nor was there evdence provded that Ms. Myre sought enforcement of the trbal court's order n Washngton. On February 28, 2012 Ms. Myre's counsel entered nto the domestc volence protectve order proceedngs fled by Mr. Wheeler (3AN /434 Cl) and those fled by Ms. Myre (3AN /468 Cl).(Exc ) Followng a long term domestc volence hearng the court ssued Supplemental Fndngs wth the orders regardng the long term domestc volence pettons fled by the partes. (Exc ) In these supplemental fndngs the tral court acknowledged the trbal custody order. (Exc. 146) The

12 mnor chld was also returned to Ms. Myre's prmary custody as set forth n the trbal court order. Ms. Myre dd not fle a moton to dsmss Mr. Wheeler's complant for custody nor fle any pleadngs n the followng year objectng to the tral court's jursdcton n ths matter. Ms. Myre also partcpated n a custody nvestgaton ordered by the court n ths matter. Tral regardng custody of J.W. was scheduled for Aprl 5, On Aprl 2, 2013, ATC fled ts Moton for Expedted Consderaton and Moton to Intervene and for Deferral/ Dsmssal. (Exc ) In the Affdavt of Samuel J. Forter, submtted n support of ATC's moton, Mr. Forter acknowledged that ATC and the state court had concurrent jursdcton of the subject matter. (Exc. 151) Mr. Forter also stated the request for deferral was based upon the "mmnence of potentally conflctng judgments." (Id.) Mr. Wheeler opposed ATC's moton to ntervene and for deferral/ dsmssal. (Exc ) Mr. Wheeler opposed ATC's moton as t was fled n the eleventh hour before tral. (Exc. 193) Mr. Wheeler also noted that ATC dd not ntervene pror to an earler hearng n ths matter or pror to the earler scheduled tral dates of January 10 and 11th, (Exc ) Mr. Wheeler posted that ATC only sought to ntervene as a result of the factual crcumstances that now exsted whch worked aganst Ms. Myre retanng custody of J.W. (Exc. 195) Mr. Wheeler opposed ATC's nterventon because

13 ther stated nterest n ths case was protecton of ther "nherent soveregnty" whle the subject matter of the case was the custody arrangement that was n the best nterests of the mnor chld. (Exc. 198) Ms. Myre non-opposed ATC's moton to ntervene and for deferral/ dsmssal. (Exc ) Pror to ths non-opposton Ms. Myre dd not ndependently seek deferral or dsmssal of ths matter based upon the trbal court's jursdcton. Ms. Myre's non-opposton also demonstrated that Ms. Myre's attorney had been n communcaton wth Mr. Rechln, the same representatve Mr. Wheeler contacted ATC through. (Exc. 209) Ths communcaton occurred more than a year earler and a day pror to Ms. Myre's attorney's entres of appearance nto the domestc volence proceedngs. Despte ths knowledge ATC dd not seek to ntervene or assert ther subject matter jursdcton over ths case earler. The tral court granted permssve nterventon to ATC for the lmted purpose of defendng ts jursdcton and ordered tral to proceed as scheduled. (Exc ) The tral court ruled that ATC was not granted nterventon as a rght. (Exc. 210) The tral court also stated that the current custody proceedng was not a derogaton of the trbal court's order or ATC's jursdcton. (Id.) The tral court went on to state that these proceedngs were not desgned to set asde or nvaldate ATC's pror order. (Exc. 211) The tral court reasoned that Mr.

14 Wheeler was seekng to modfy the pror trbal court order. (Id.) The tral court further stated that no reason had been shown why t was an napproprate forum for the modfcaton of ATC's pror order. {Id.) The tral court also heard from ATC's attorney pror to commencng tral n ths matter. The tral court noted the only stated nterest of ATC n ths case was the court referrng the matter to ATC. (Tr. Page 7, Lne 9-19) The tral court, notng the tmng of ATC's request, travel of wtnesses to appear, and two tral days beng scheduled, ruled t would proceed wth tral whle takng the oral moton for reconsderaton under advsement. (Tr. Page 7, Lne 16-23) In response to a queston from the tral court ATC stated that t dd not ntend to partcpate n the proceedngs, "Our ntent was to enter a lmted appearance." (Tr. Page 8, Lne 3-4, 6-7) Followng a two day tral, hearng evdence from multple wtnesses and experts, the tral court awarded prmary physcal custody and sole legal custody to Mr. Wheeler wth vstaton to Ms. Myre so long as she mantaned her sobrety. (Exc ) The tral court stated n ts fndngs that the mnor chld had resded n the Thrd Judcal Dstrct for at least sx months pror to the flng of the custody acton. (Exc. 215) Then the tral court went nto a detaled analyss and revew of the partes' hstory and best nterest factors under AS

15 (Exc ) The tral court consdered sgnfcant ssues of substance abuse and domestc volence that were not ncluded n the trbal court's fndngs n the 2008 order. The tral court also consdered the change n crcumstances snce the custody acton was ntally fled by revewng Ms. Myre's struggle wth sobrety from December Aprl After recevng the Fndngs of Fact and Conclusons of Law ATC fled a request for opportunty to be heard and moton for stay,(exc ) despte not beng present for or partcpatng n the presentaton of evdence. The tral court granted ATC's request for an opportunty to be heard and dened ther moton for stay. (Exc. 236)

16 STANDARD OF REVIEW The Supreme Court evaluates de novo the scope of trbal court jursdcton and the meanng of federal statutes.1 Under de novo revew the Supreme Court apples "the rule of law that s most persuasve n lght of precedent, reason and polcy."2 Ths s the same standard appled to questons of statutory nterpretaton.3 When revewng a superor court's comty determnaton the Supreme Court apples ts ndependent judgment, smlar to that used when revewng jursdcton or a due process determnaton.4 Whether a court can exercse jursdcton under the UCCJEA s a queston of law, whch the Supreme Court revews de novo.5 1 State v. Natve Vllage of Tanana, 249 P.3d 734, 738 (Alaska 2011) ctng John v. Baker, 982 P.2d 738, 744 (Alaska 1999) 2 State v. Natve Vllage of Tanana, 249 P.3d 734, 738 (Alaska 2011) (ctng Glaman v. Krk. 29 P.3d 255, 259 (Alaska 2001) quotng Phlbn v. Matanuska-Sustna Borough, 991 P.2d 1263, 1266 (Alaska 1999)) 3Alaskans for a Common Language, Inc. v. Krtz, 170 P.3d 183, 189 (Alaska 2007)(ctng Alaska Gen. Alarm. Inc. v. Grnnell, 1 P.3d 98, 100 (Alaska 2000)(quotng' Gun v. H a, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 4 John v. Baker. 30 P.3d 68, 71 (Alaska 2001). 5 Steven D. v. Ncole J., 308 P.3d 875, 879 (Alaska 2013) (ctng Atkns v. Vgl, 59 P.3d 255, (Alaska 2002))

17 ARGUMENT I. AS A'CARSARMIUT DOES NOT HAVE STANDING TO APPEAL THE TRIAL COURT'S CHILD CUSTODY ORDER IN THIS MATTER In order to have standng a person must demonstrate an njury-n-fact.6 The need of njury does not need to be great but "t s necessary to assure the adversty whch s fundamental to judcal proceedngs."7 Ths s referred to as the "nterest- njury" test.8 "Standng questons are lmted to whether the ltgant s a 'proper party to request an adjudcaton of a partcular ssue and not whether the ssue tself s j ustcable.7"9 ATC has faled to demonstrate an njury n fact n ther bref. ATC has not demonstrated how the tral court's rulngs n ths matter wll affect ther ablty to self-govern nternal domestc dsputes between members, to exercse jursdcton n ICWA defned chld custody proceedngs, or to obtan full fath and credt for ther orders ssued wthn ICWA defned chld custody proceedngs. The specfc facts of ths case support the 6 Wagstaff v. Superor Court, Famly Dvson. 535 P.2d 122 0, 1225 (Alaska 1975)(ctncr Unted States v. SCRAP, 412 U.S. 669, 689 n. 14 (1973)). 7 Id. 8 Glbert M. v State, 139 P.3d 581, 587 (Alaska 2006)(ctng Trustees of Alaska v. State. 736 P.2d 324, 327 (Alaska 1987)). 9 Moore v. State, 553 P.2d 8, n. 25 (Alaska 1976) (quotng Flast v. Cohen, 392 U.S. 83, (1968)).

18 tral court's rulngs regardng jursdcton, nterventon, regstraton of trbal court orders and ts ultmate custody determnaton. ARGUMENT II. The Asa'carsarmut Trbal Court Issued the Intal Determnaton A. Asa'carsarmut's Trbal Court Proceedngs The partes submtted ther ntal custody proceedngs to ATC n Ms. Myre s an enrolled member of the Trbe, and therefore, the partes mnor chld, J.W., s a member of the Trbe. (Exc. 71) A custody hearng was held on December , and as a result, on February 8, 2008, ATC ssued a custody order through applcaton of ther codfed chld custody factors. (Exc ) The custody order awarded physcal and legal custody to Ms. Myre, wth vstaton rghts to Mr Wheeler. (Id.) B. Asa'carsarmut Trbal Court Exercsed Contnung Jursdcton When Mr. Wheeler Pettoned ATC For Increased Vstaton. Mr. Wheeler pettoned the Trbal court to ncrease hs vstaton n 2008 and Durng J.W.'s 2011 Chrstmas vstaton wth Mr. Wheeler n Washngton t became apparent to Mr. Wheeler that Ms. Myre was on a drnkng bnge and ncapable of carng for Jacob. Ms, Myre also clamed to be n hdng from George Johnson, the father of her other two chldren, due to domestc volence ssues. Mr.

19 Wheeler contacted counsel for the Trbal Court wth hs concerns about returnng J.W. to M s. Myre's care n an emal dated December 30, 2011, ttled Jacob Wheeler's Emergency Custody Stuaton. (Exc. 76) In the emal Mr. Wheeler requested a hearng before ATC seekng full custody of J.W. due to the domestc volence and alcohol abuse n Ms. Myre's home. (Id.) Jerry Rechln of Forter & Mkko, counsel for ATC, nformed Mr. Wheeler that ATC would not get nvolved because there was no pendng ssues before the Trbal Court. (Exc. 79) In her February 10, 2012 affdavt, Ms. Myre also spoke wth the Trbal Court n January n an effort to seek assstance n havng J.W. returned to Alaska. (Exc. 117) The Trbal Court representatve, Joshua/ told her that they could not help her. (Id.) Ms. Myre and Jacob moved to Anchorage n June (Exc. 33) In an effort to expedte a change of custody Mr. Wheeler fled a Complant for Custody n the Anchorage Superor Court on January 11, (Exc. 81) He then fled a Petton for an Ex Parte Domestc Volence Protectve Order, on behalf of hmself and Jacob. (Exc ) In hs Ex Parte Motons he admtted that ATC had ssued a prevous Custody Order. (Exc. 93) Hs Ex Parte motons were granted on February 9, 2012, (Exc ) Ms. Myre fled a two Motons for an Ex Parte Protectve Order on February 10, 2012, one for her, and one on behalf of

20 J.W. (Exc. 141) Both motons were dened and long-term hearngs were scheduled n the Superor Court custody matter. She also fled her opposton to Mr. Wheeler's Complant for Custody, thru her attorney apponted by the Alaska Natve Justce Center. (Exc ) She dd not move to have the matter dsmssed. Both partes attempted to utlze ATC to address the concerns for J.W.'s well beng pror to Mr. Wheeler flng a Complant for Custody n the Superor Court, and pror to both partes flng Pettons for Ex Parte Protectve Orders n the Anchorage Dstrct Court. Nether party sought further assstance from the ATC wth regard to custody of J.W. Whle ATC may have concurrent jursdcton over a custody matter, there jursdcton only arses when a party fles a competng moton n the Trbal Court. In ths matter, both partes chose to ltgate there ssues n the Anchorage Superor Court, a choce both partes clearly made due to the absence of any competng motons beng fled n the Trbal Court. Therefore ATC's jursdcton to decde the custody ssues was not trggered.

21 ARGUMENT III. UNDER THE FACTS OF THIS CASE IT IS CLEAR THAT THE SUPERIOR COURT ENGAGED IN A COMITY ANALYSIS REGARDING THE TRIBAL COURT'S CUSTODY ORDER. The Superor Court dd conduct a comty "analyss". The court receved a copy of the Trbal Court's 2008 Custody Order and held that t was rendered thru applcaton of the same factors used by the Superor Court n custody matters. (Exc. 136) The Anchorage Superor Court then enforced the Trbal Court Order upon ssung the order requrng Mr. Wheeler to return JW to the custody of Ms. Myre. (Exc ) The Trbal Custody Order remaned n place untl the Anchorage Superor Court modfed the order thru ssuance of the Fnal Custody Decree dated May 2, (Exc. 212) Further proof of the Superor Court's grant of comty to the Trbe's Custody Order s set forth n Court's order dated Aprl 5, 2013, n whch the Superor Court states that Mr. Wheeler "s seekng to modfy the earler custody decson n lght of the substantal crcumstances of the partes that have occurred over the years snce the Councl's order was ssued." (Exc. 211) As stated n the Court's Aprl 5, 2013 order, the custody orders of every court n ths state are subject to modfcaton. ATC would have the Supreme Court fnd that a modfcaton of a prevous order, that does not mrror the modfed order, has faled to grant the prevous ssung court order comty. When a

22 substantal change of crcumstances occurs the Superor Court completes an analyss to determne f modfcaton of the prevous custody order s n the best nterest of the mnor I I I chld. The court s not requred to wegh one parents' hertage over the other parents. The Superor Court provded Ms. Myre wth a vstaton schedule whch allowed her to enjoy tme wth J.W. and travel to her natve vllage f she chose to do so. (Exc ) ATC clams that the Superor Court should have abstaned from hearng the partes custody matter, but fals to dscuss the fact that nether party fled a competng custody acton n Trbal Court. ATC ctes Natonal Farmers Unon Insurance. Co. v. Crow Trbe of Indan10 and Iowa Mut. Ins. Co. v LaPlante11, two cases nvolvng cvl actons arsng out of vehcle accdents wthn an Indan Reservaton. In Iowa Mut. Ins. Co., the party ATC refers to as a non* Natve defendant, was requred to exhaust all remedes n Trbal Court pror to seekng relef n Federal Court.12 In contrast, ths case does not nvolve any acton by ether party wthn Indan Terrtory, or a matter where a party fled an acton n Trbal Court. Ths s a custody matter where nether parent U.S. 845 (1985 " 480 U.S. 9 (1987). 12 Id. at a n

23 pursued moton practce wth the Trbe, n a State where the Superor Court has concurrent jursdcton over custody matters, at a mnmum. ATC beleves the Superor Court should have abstaned upon Ms. Myre's presentaton of the Trbal Court order, although she presented the order merely for the purpose of regstraton. (Exc ) Applcaton of that reasonng would then requre the Alaska Superor Court to abstan from a matter upon presentaton of a custody order from Kentucky, an order whch would be recognzed under the UCCJEA. Comty s mutual respect for an order13, t does not grant any court nherent soveregnty over a custody matter n perpetuty, and surely does not allow ATC to force partes to return to ther court when both have fled and submtted themselves and ther custody matter to the Supreme Court. ARGUMENT IV. The UCCJEA DOES NOT COMPEL THE CONCLUSION THAT THE TRIBAL COURT HAD EXCLUSIVE JURISDICTION. A. The Tral Court Dd Not Err In Interpretng Alaska's UCCJEA, AS ,et. seq., As Excludng Trbal Courts Wthn The Meanng Of "Court" In AS (6) And Dd Not Err In Declnng To Regster The Asa'carsarmut Trbal Court Custody Order In Lght Of The Court's Pror Precedents, Partcularly State V. Natve Vllage of Tanana, 249 P.3d 734 (Alaska 2011) 13 John v. Baker, 982 P.2d 738, 762 (Alaska 1999)

24 Ths court construes a statute n lght of ts purpose.14 When ths court s tryng to determne legslatve ntent t consders the statements by a bll's sponsor relevant evdence.15 In contrast, f the court statutes meanng s plan and unambguous the party assertng a dfferent meanng bears a heavy burden of demonstratng a contrary legslatve ntent.16 "However, we may not read nto a statute that whch s not there, even n the nterest of avodng a fndng of unconsttutonalty, because 'the extent to whch the express language of the provson can be altered and departed from and extent to whch the nfrmtes can be rectfed by the use of mpled terms s lmted by the consttutonally decreed separaton of powers whch prohbts ths court from enactng legslaton or redraftng defectve statutes.'"17 There s a canon of statutory constructon, expresso unus est excluso alterus, that establshes where certan thngs are desgnated wthn a statute all omssons should be understood as 14 Alaskans for a. Common Language, Inc. v. Krtz. 170 P.3d 183, 192 (Alaska 2007) ctng Beck v. Dep't of Transp. & Pub. Facltes, 837 P.2d 105, 117 (Alaska 1992). 15 Id. 16 Id. ctng State v. Alaska State Employees Ass'n/ AF5CME Local 52, 923 P.2d 18, 23 (Alaska 1996). 17 d. (quotng State v. Campbell. 536 P.2d 105, 111 (Alaska 1975), overruled on other grounds by Kmoktoak v. State, 584 P.2d 25, 31 (Alaska 1978)).

25 exclusons.18 The court n John v. Baker stated, "n the absence of proof that the Alaska legslature specfcally ntended the UCCJA to nclude Indan trbes, we follow the prncple of statutory nterpretaton nstructng that all omssons be treated as exclusons. We therefore conclude that the UCCJA does not apply to trbal judgments."19 As wth the adopton of the UCCJA there s no evdence that the Alaska legslature specfcally ntended the UCCJEA to nclude Indan trbes. In fact, the ssue of trbal court orders was never mentoned.20 ATC s requestng ths court to read somethng nto the legslatve ntent that s not there and effectvely redraft the legslaton to nclude Alaska Natve Trbes. Case law s clear n regards to an omsson n a statute. The court n State v. Natve Vllage of Tanana concluded that the specfc facts of the case precluded the court from 18 L. Street Investments v. Muncpalty of Anchorage, 307 P.3d 965, 970 (Alaska 2013)(ctng Puller v. Muncpalty of Anchorage, 574 P.2d 1285, 1287 (Alaska 1978) quotng 2A C. SANDS, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION 47.23, AT 123 (4th ed. 1973) ) P.2d 738, 762 (Alaska 1999). 20 see 20th Alaska Legslature Commttee, House Journal, January 20, 1998; 20ch Alaska Legslature Commttee Mnutes House Health Educaton & Socal Servces; 20th Alaska Legslature Commttee Mnutes House Judcary Commttee; 2 0th Alaska Legslature Commttee Mnutes Senate Health Educaton & Socal Servces; 2 0th Alaska Legslature Commttee Mnutes Senate Judcary.

26 defnng the standards for determnng whch judgments would be enttled to full fath and credt by the state.21 The court held that ICWA defned proceedngs may be enttled to full fath credt by the State under ICWA.22 As clearly set forth above, ths s not an ICWA matter B. The Tral Court Dd Not Err In Concludng That It Had "At Least Concurrent Jursdcton Over The Issue of Jacob's Custody," The court n John v. Baker held that Alaska's state courts retan concurrent jursdcton over chld custody dsputes.23 The court reasoned that all dsputes arsng wthn the state fall wthn the state's general jursdcton, trbal or not.24 The court states both the trbe and state courts can adjudcate custody dsputes.25 "A trbe's nherent jursdcton does not gve trbal courts prorty, or presumptve authorty, n dsputes nvolvng trbal members."26 The court went on to address concerns rased n the dssentng opnon that state court's would be closed to trbal members P.3d 734, 736 (Alaska 2011) 22 Id P.2d 738, 759 (Alaska 1999).

27 4 "Natve parents who lve n Anchorage and do not wsh to aval themselves of a dstant trbal forum wll stll be able to resolve ther custody dsputes n Anchorage Superor Court. Indeed, Alaska Natves who for any reason do not wsh to have ther dsputes adjudcated n a trbal court wll retan complete and total access to the state judcal system. Because state courts retan concurrent jursdcton, there s no 'mandatory trbal court jursdcton.'"27 In ths matter, nether party fled a competng moton to modfy custody n the trbal court. Ms. Myre faled to fle the trbal custody order n Washngton despte beng nstructed to do so by the Anchorage Superor Court. (Exc. 138) Instead, both partes fled competng Pettons for Protectve Orders n the Anchorage Court, and ltgated Mr. Wheelers' Complant for Custody n the Anchorage Superor Court for a year before ATC fled a moton to ntervene n an effort to protect the ntegrty of ts prevous custody order. Clearly, the Anchorage Superor Court had at least concurrent jursdcton over the ssues of decdng custody of the mnor chld. The chld was a resdent of the State of Alaska, as was Ms. Myre, and both partes not only submtted to the Anchorage Superor Courts' jursdcton, but actvely chose to fle motons n the Anchorage venue. 21 Id. (guotngr Oklahoma Tax Commsson v. Chcksaw Naton, 420 U.S. 425, (1975)). 19

28 C. The Tral Court Properly Had Jursdcton Over The Custody Issues And The Alaska Natve Chld In Ths Matter In Accordance Wth The Requrements of Alaska's Unform Chld Custody Jursdcton and Enforcement Act (UCCJEA), AS 25.30,300, et seq., And In Lght of Pror Precedents Includng State v. Natve Vllage of Tanana, 249 P,3d 734 (Alaska 2011) Ths court n State v. Natve Vllage of Tanana concluded that the specfc facts of the case precluded the court from "defnng the extent of any ndvdual Alaska Natve Trbe's nherent soveregn jursdcton to ntate 'chld custody proceedngs28 The court dd conclude the Alaska Natve Trbes were not necessarly precluded from exercsng ther nherent soveregnty to ntate "chld custody proceedngs" as defned by ICWA.29 The Natve Vllage of Tanana specfcally noted to the court that '>ths case does not present the ssues the State rases concernng trbal jursdcton over non-members.30 In ts decson the court n State v. Natve Vllage of Tanana revewed precedent regardng ICWA and Alaska Natve Trbal Soveregnty from n Natve Vllage of.nenana31 v. State. DHSS through John v. Baker I.32 The court held, P.3d 734, 736 (Alaska 2011). 29 Id. 30 Id. at P.2d 219 (Alaska 1986).

29 "that federally recognzed Alaska Natve Trbes that have not reassumed exclusve jursdcton under 1918(a) stll have concurrent jursdcton to ntate ICWA-defned chld custody proceedngs, both nsde and outsde of Indan country. Necessarly, federally recognzed Alaska Natve Trbes are enttled to all of the rghts and prvleges of Indan trbes under ICWA, ncludng procedural safeguards mposed on states and 1911(d) full and fath and credt wth respect to ICWA-defned chld custody orders to the same extent as other states' and foregn orders."33 The court specfcally dd not address the extent of trbal jursdcton over non-member parents of Indan Chldren and "extent of jursdcton over Indan chldren or member parents who have lmted or no contact wth the trbe."34 The goal of State v. Natve Vllage of Tanana's decson was to clarfy jursdcton that may be held by federally recognzed Alaska Natve trbes to ntate ICWA-defned chld custody proceedngs.35 ICWA defnes a "chld custody proceedng" to nclude foster placement, termnaton of parental rghts, preadoptve placement, and adoptve placement.36 ICWA excludes from ts defnton of "chld custody proceedng" an award of custody to one of the 33 Id. at Id. at Id U.S.C (1) () - (v).

30 parents.37 In John v. Baker, the court consdered ths excepton to ICWA defned chld custody proceedngs.38 The court reasoned that n a custody dspute between two parents nether of the concerns ICWA addresses were rased, because the mnor chldren would spend tme n both parents homes and ther respectve vllages.39 The court n Healy Lake Vllage, d/b/a Mendas Cha-ag v. M t. McKnley Band and Healv Lake Tradtonal Counsel, was tasked wth determnng f state court jursdcton was approprate n a trbal electon and membershp dspute.40 The court compared the queston before t to the queston of jursdcton n chld custody cases. The court reasoned that state court jursdcton s approprate n chld custody dsputes, such as John v. Baker, because the jursdcton "furthers the state and federal laws desgned to protect Alaska Natve chldren wthout nterferng wth trbal self-governance."41 In contrast the state has no nterest n determnng the outcome of the trbal electon and 37 d. See also 249 P.3d at 752 n P.2d 738, 747 (Alaska 1999). 39 d. The court also noted legslatve ntent supported the dvorce excepton to apply to any parental custody dspute, referencng statements made by the Department of the Interor to Congress and the conclusons of the Bureau of Indan Affars. 40 Healv Lake Vllage, d/b/a Mendas Cha-ag. v. Mt... McKnley Band and Healv Lake Tradtonal Counsel, S (Alaska 2014).

31 membershp dspute.42 The court concluded that the state court dd not have subject matter jursdcton because t lacked an nterest, and as result the dspute remaned "wthn 'the trbe's retaned nherent soveregn powers.'"43 The facts of ths case are dstngushable from the facts n State v. Natve Vllage of Tanana and John v. Baker. Both of the partes before the court n John v. Baker were members of two dfferent Alaska Natve Trbes.44 Approxmately sx months after flng a custody acton n trbal court Mr. Baker fled a custody complant n state court.45 Subsequently, Ms. John fled a moton to dsmss the state court acton ctng the trbal court proceedngs, ths moton was dened and Ms. John appealed.46 In ths matter Ms. Myre s the only parent that s a trbal member. Another mportant fact that dstngushes ths matter s that Mr. Wheeler dd not fle n state court wthn a few months of the trbal courts rulng. The trbal court ssued ts order on February 7, (Exc. 75). Mr. Wheeler dd not fle hs complant for custody n the state tral court untl January 11, 42 Id. 43 Id. (ctng John v. Baker, 982 P.2d 738, 751 (Alaska 1999)) P. 2d at Id. 46 Id. 23

32 2012, (Exc ) almost four years later. At the tme of flng there weren't any current moton before ATC. (Exc. 79) ATC's bref repeatedly hghlghts that Mr. Wheeler dd not dsclose the exstence of the trbal court order n hs chld custody jursdcton affdavt. ATC fals to acknowledge that Mr. Wheeler dd nclude nformaton regardng the trbal court case n hs petton for a domestc volence protectve order fled less than a month later. (Exc ) Mr. Wheeler was not attemptng to hde the trbal court rulng from the state tral court. Moreover, the tral court specfcally stated that the proceedngs fled by Mr. Wheeler were not desgned to set asde or nvaldate the trbal court's order. (Exc. 211) Another key dstngushng fact s that unlke Ms. John, Ms. Myre dd not fle a moton to dsmss ctng the trbal court proceedngs n response to Mr. Wheeler's custody complant. Ms. Myre fled a petton to regster the trbal court order (Exc ). Ms. Myre also fled separate two domestc volence protectve proceedngs n the state tral court. (Exc. 141). Ms. Myre dd not fle her own moton seekng dsmssal of the state court proceedng, nor dd she fle a competng moton n the trbal court. Both partes submtted to the jursdcton of the state tral court n ths matter. 24 I I I I 1 l 0 1 n

33 ARGUMENT V. THE SUPERIOR COURT PROPERLY HAD JURISDICTION OVER THE CUSTODY ISSUES IN THIS MATTER AND DID NOT ERR BY ENTERING A FINAL CUSTODY DECREE AND FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Superor Court dd not abuse ts dscreton or commt error when ssung the Fnal Custody Decree whch n effect modfed the Trbal Court order. ATC reles on Howlett v. Howlett to demonstrate the Superor Courts' error n ths matter. In Howlett, the court faled to set forth n the fndngs whether a substantal change of crcumstances had occurred or provde an analyss of the best nterests of the chld.47 In contrast to Howlett, the Superor Court n ths matter ssued an order on Aprl 5, 2013 whch acknowledged Mr. Wheeler's Complant for Custody as a moton "seekng to modfy the earler decson n lght of substantal changes n the crcumstances of the partes that have occurred over the years snce the Councl's order was ssued." (Exc. 211) The court clearly accepted Mr. Wheeler's complant as a moton to modfy the Trbal order. The court also noted that the Councl faled to assert exclusve jursdcton. (Exc. 211) The court n ths matter had clearly determned, and held that a substantal change of crcumstances had occurred. All P.2d 1125, (Alaska 1995).

34 partes were made aware of the fndng thru ssuance of the Aprl 5, 2013 order. (Exc ) The fact that the Fndngs of Fact and Conclusons of Law faled to ncorporate the court's determnaton of the court's earler fndng that a substantal change of crcumstances had occurred s merely clercal error, and does not rse to the level of reversble error. The court dd make a best nterest analyss regardng J.W. n the fndngs. (Exc ) In the Fndngs of Fact the court held that t dd not address every factor on the record because t beleved the Custody Investgator dd an excellent job addressng the applcaton of the standard factors. (R ) The court then expressly adopted the Custody Investgator's analyss of the standard factors, as well as the concluson. (Exc. 224) ATC states that the court faled to consder that ltgaton had occurred and was ongong n Trbal Court. In fact, there was no ongong ltgaton n the Trbal Court. Nether party had fled any motons n Trbal Court. The Superor Court dd not commt reversble error byfalng to nclude earler fndngs n t's fnal fndngs n ths matter.

35 CONCLUSION Ths matter evolves from a custody case between two parents. It does not nvolve the adopton, foster placement, or termnaton of parent rghts. Therefore, ICWA does not apply to these proceedngs. ICWA specfcally carves out an excepton for dvorce proceedngs or ntra-famly dsputes. One parent s a trbal member and one parent s a non-trbal member. These partes were nvolved n a trbal court proceedng over sx years ago, and almost four years pror to the flng of the superor court custody case. Furthermore, the mnor chld had resded n the Thrd Judcal Dstrct for at least sx months pror to the flng of the custody acton and contnued to resde ther untl tral n ths matter. ATC has not demonstrated that the tral court was an napproprate forum to hear the evdence presented n ths case. Both partes wllng partcpated n the state tral court proceedng. Nether party fled a moton to dsmss or a competng moton n the trbal court. Both partes avaled themselves to the state tral court n domestc volence protectve order proceedngs, whch were consoldated wth the Superor Court custody matter. Mr. Wheeler mantans that n the context of these facts ATC does not have standng to brng ths appeal. Alaska would not have permtted the State of Kentucky to ntervene n a custody proceedng or for Kentucky to fle a

36 moton to defer/ dsmss the case to ts jursdcton f nether party resded n that State and the mnor chld and the custodal parent were resdents of Alaska, and both partes wllngly sought out the jursdcton of the Alaska Superor Court. Kentucky would also not be able to fle an appeal for the denal of such motons. It would have been approprate for one of the partes to rase the objecton to the jursdcton of ths court or sought, through ther own moton, to defer/ dsmss. It s not approprate for a trbal court to do so on ther own when nether party had prevously objected to the tral court's jursdcton. To permt such an acton by a trbal court would effectvely close the doors to the state courts for partes n non-icwa proceedngs, because a trbal court could ndependently object to any custody or dvorce proceedng fled n state court. ATC n the eleventh hour before tral sought to defer/ dsmss the state tral court proceedngs. Pror to ths moton nether party had sought to end the state tral court's jursdcton over the matter. ATC clams ther nherent soveregnty and the dgnty of ther orders s beng dmnshed by the tral court's actons n ths matter. Mr. Wheeler dsagrees. The tral court consdered Ms. Myre's petton to regster ATC's order from February 7, The tral court determned that the defnton of trbe and Secton 104 of the model act had

37 not been enacted by the state legslature. Instead of gong outsde the bounds of the plan language of the statute the tral court correctly dened the petton and drected Ms. Myre to regster ATC's order n Washngton. Ms. Myre, who was represented by counsel, chose not do so. The tral court dd not err n ts nterpretaton of the statute or precedent. Ths s not an ICWA proceedng where ICWA specfcally provdes for full fath and credt of trbal court orders, nor should the tral court have read language nto the statue that was prevously omtted. Under the separaton of powers ths s not a power afforded to the judcary. ATC also overlooks that the tral court dd afford "dgnty" to ther pror custody order. The tral court specfcally stated t was a lawful order and that Mr. Wheeler was seekng to modfy based upon a substantal change of crcumstances. The pror custody order for ATC was not gnored by the tral court as they argue n ther bref. Ms. Myre dd not mantan custody as awarded by ATC due to the evdence presented at tral and the best nterest factors consdered by the court. The facts of ths case are easly dstngushable from the precedent hghlghted by ATC. ATC has faled to demonstrated how the state tral court's actons under these partcular facts nfrnges on ther future ablty to govern domestc relatons between the trbal members or have ther custody orders granted

38 full fath and credt under ICWA. The tral court properly had jursdcton over the chld custody ssue n ths matter and dd nor err n ts nterpretaton of precedent or the UCCJEA enacted by the Alaska Legstlature. Mr. Wheeler respectfully requests the court affrm the tral court's conclusons of law regardng jursdcton n ths matter. Dated ths 29th day of Aprl 2014, n Anchorage, Alaska. LAW OFFICE OF CARL D. COOK, P.C. Attorney's for Mr. Wheeler Carl D. Cook ABA#