Weston v. Jones

1999 SD 160

Cynthia WESTON, Cynthia R. R. f/k/a Appellee,

Jоnes, and Plaintiff Shaeffer, Flandreau, A. Da- John South kota, Attorney appellee. and plaintiff Jr., JONES, E. Defendant Gordon Jones, Jr., E. Pro se defendant Appellant. Gordon and appellant. No. 20958. KONENKAMP, Justice.

Supreme Court South Dakota. appeals [¶ 1.] Gordon Jones from an or- 13, Sept. Considered Briefs 1999. denying der his motion to vacate the 22, Decided Dec. court’s and decree of divorce for jurisdiction. lack of For below, affirm. the reasons set forth Facts and Procеdure Cynthia Weston1 and Gordon August Jones were married 1991 in Flandreau, Dakota. South Two children marriage. were born of this parties separated. February On complaint, service of a summons and Weston commenced divorce action against Moody Jones circuit court in County, seeking property, division of child custody, support. and child Jones an- swered, alia, that stating, inter and their two minor children were enrolled tribal members on Flandreau land and that all of Santee trust property was located within these boundaries. He did not pursue dictional issue further in the divorce ac- tion. May entered

into a agreement settlement ad- property, custody sup- dressed their port issues. The circuit court entered a decree divorce on June 10, 1996, incorporating parties’ agree- party appealed ment. Neither from this sought twice judgment. support obligation modification of his child Following hearings in circuit court. motions, separate orders were en- these modifying support. tered name, Cynthia's cree of divorce. "Weston” is maiden which was restored to her in the and de- 707 5, 1999, ex rel. two and one- matter is void. State January On [¶ 4.] ¶ Sadlier, final, 114, 10, Freeman v. the divorce was 1998 SD 586 years half after MA.C, (citing in court to N.W.2d 174 In re 512 a motion circuit Jones filed (S.D.1994)). 152, 154 and decree of di- N.W.2d dismiss the jurisdic- subject lack of vorce for principle, There is another howev- alternative, or, transfer the in the tion er, estopрel, long based on has been Following a hear- matter to tribal court. applied in It divorce actions. holds ing, circuit court denied the motion. the one who obtains a cannot later appeals. Jones collaterally jurisdictional attack Analysis and Decision Clark, Jr., 1 Homer H. grounds. The Law in of Domestic Relations the United States Both Jones and Weston are en- 1987) (2d § 13.3 at n. (collecting ed. cases Flandreau rolled members of the Santee are their two minor chil- Sioux Tribe as form, put principle To the in concise if They dren. reside on Indian trust lands is, in person attacking the their divorce. All of divorce prior and did so to so, doing taking a position inconsistent including their marital property, conduct, past with his or to home, All on tribal trust land. was located divorce, upon the action have relied family monthly receive a four members if, addition, in holding the divorce tribe, from the the children’s allotment upset relationships ‍‌‌​​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​​​​‌‍expec- invalid will or being placed in trust for their ben- monies in tations formed reliance the di- employed efit. The tribe vorce, then estoppel preclude calling will the time of their' divorce. Jones was sec- question. divorce council, retary of the tribe’s executive an dispute position. elected Weston does not (Second) at 744. The Restatement is es- argues these facts but (1971) provides 74 an Conflict Laws attacking parties’ divorce topped from еven broader extension of rule: “A jurisdictional grounds because decree person may precluded attacking be from court he submitted himself if, validity foreign of a divorce decree parties’ divorce diction the time of the circumstances, ineq- it would under be subsequent hearings regarding and at two principle him do is uitable for so.” This modification. support spirit equity founded in and common puts “finality” It for the sake of sense. It that “domestic re recognized is involved аbove the persons among important lations its members is an ” that could have been legal broach obstacles By ‘traditional control.’ area of tribal Finality in raised earlier but were not. Byzewski, zewski v. 399 imperative. particularly divorce cases is (N.D.1988) (citing Three Tribes Affiliated relation- Imagine upheaval familial 877, 889, Engineering, v. Wold 476 U.S. long- ships disrupt should one be able to 2305, 2313, 106 90 L.Ed.2d 881 questions about its rested decree with new Court, (1986); 424 Fisher v. District appeal, in this validity. The narrow issue 947-48, 382, 388-89, 96 S.Ct. thereforе, is not whether the state court (1976); Quiv v. L.Ed.2d United States subject had over the er, 602, 603-04, 36 S.Ct. question The Jones-Weston divorce. (1916); Cohen, F. Handbook 60 L.Ed. 1196 Jones, participant can an active (1982)). Indian Law at 249 See of Federal proponent state divorce action and the Conroy, v. 575 F.2d Conroy also decree, later motions based on the be two (8thCir.l978) (“[T]he of a tribe to power jurisdic- it now on relations of its mem regulate the domestic grounds. tional bers, established, historically well remains undisturbed.”). equitable principle was recognized is further This same Scherer, 405 N.E.2d applied without Scherer that a of a court Scherer, and, verdict, decreed agreed hus- instructed (Ind.Ct.App.1980). had divorced in divorce and the hus- and his wife been both the Mexican band Republic. subsequent the Dominican invalid and marriage band’s in that action personally appeared wife to his that the husband was still married voluntarily appeared by husband while the Ap- first wife. The Texas Court of Civil attorney executed for the special power of peals reversed and remanded the action obtaining a divorce. express purpose of trial, parties noting for a new that both divorce, parties the Id. at Before the in participated had and consented to the drafted the agreement, had an executed divorce and had invoked the Mexican attorney, dividing property their husband’s jurisdiction by participation. court’s their custody, child visitation settling and their express findings The divorce decree made agreement was support issues. This and that the court had of the case. of divorce. incorporated into the decree The court stated: later, a the husband filed for Seven months By jointly petitioning Mexican court the property of in the divorce and dissolution divorce, parties for a the thereto neces- the earlier di- claiming state of Indiana sarily represented the that аll court court af- invalid.2 The Indiana vorce was precedent to the exercise of conditions wife, judgment for the summary firmed jurisdiction, including the court’s resi- marriage holding parties “if to a sub- both If requirements, dential were satisfied. another state for mit to the exist, jurisdictional such facts did not they are obtaining divorce purpose perpetrated upon fraud was the Mexican by vir- estopped from the decree court. Id. The court participation.” tue of their Id. at 205-06. was inconsis- position found the husband’s and after tent with his conduct both before The case before this Court shows the divorce. Id. at 46. See Restatement in findings some factual similarities to the (“Such inequity [pre- cmt b supra, Webb, Although Scherer and above. jurisdictional challenge] may cluding a ex- complaint answer his wife’s Jones’ 'to in ist when action has been taken reliance jurisdiction, raised the issue of he did not expectations are based on the divorce оr pursue parties together it further. The on it or when the attack on the divorce is property, support resolved their conduct of the inconsistent with earlier custody agreement issues and their was attacking party.”). The Scherer court not- incorporated into and de- affirming summary judg- ed entry cree. Prior to of the decree di- ment, validity of the did not address parties signed vorce on both June merely Republic Dominican decree but joint and filed with the state circuit court a from held the husband express purpose affidavit “for the of estab- validity. challenging its Id. at 48. jurisdiction and di- lishing grounds for vorce.” The record contains no evidence Webb, In Webb v. 461 S.W.2d 204 makes claim that Weston and Jones (Tex.Civ.App.1970),a husband and wife ob- him into state court. The court ex- lured tained divorce Mexico.. After the hus- and decree remarried, pressly stated complained his band ex-wife personal of divorce that it had both court that did not have the Texas Mexico jurisdiction in this action. the time of Webb, As the Texas court noted in the divorce and therefore the divorce de- judge jurisdiction, court did then the cree was void. The district Although attorney husband told his wife of his band’s three months after the Do- divorce, plans remarry publicly accepted con- Republic attorney minican same friends, gratulations he also indicated to agreement. drafted settlement who their people couple that he had several wished at 46. divorced; never the wife the hus- married MILLER, participation ‍‌‌​​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​​​​‌‍parties, by (concurring active Chief Justice seeking perpe- specially). a divorce from this court upon trated a fraud the court. Although I concur with the ma- Here, too, par- the conduct of the jority opinion, specially I write to react to supports divorce affirmance ties after the the comments in the dissent. The dis- refusing the circuit court’s order to va- senting opinion еspouses bright-line a' cate the and decree of divorce. rule, declaring that the state has no sub- requested and obtained the return Weston ject any case if Al- of her maiden name the decree. Indians on a res- though the record does not indicate that I respectfully suggest ervation. that the remarried, party either has it must be dissent over-simplifies an otherwise com- they assumed have relied plicated legal involving issue difficult and decree, it, expеctations upon formed based important historical considerations. enjoyed and consistent benefits with certainly unmarried status. Jones relied sweeping [¶ 18.] The dissent’s endorse- upon the decree and the bright-line ment of such rule concerning brought separate state when he two mo- simply is not in seeking tions circuit court to reduce his in all appropriate situations. In the recent obligation. child support Two and one-half past, our granted state courts divorces to later, years he seeks to have this hundreds not par- thousands Indian decree, upon parties and which both have ties domiciled on reservations. In so do- relied, fully vacated. Jones was aware ing, the state courts accommodated the that tribal court was to him available and parties Indian because there was no tribal though initially juris- he raised the issue of forum, or because the tribal laws did not court, diction on his own volition grant to the tribal forum over dropped he it and never again raised it blindly such matters. To adopt the dis- long until after the divorce was final. senting opinion tell im- everyone would We find that all [¶ 12.] three factors decrees, pacted by those divorce who have underlying policy precluding at- Jones’ relying been upon state-granted di- tack on present the divorce decree are years, vorce their di- (1) challenge this case: his to the divorce vorces, custody including proper- and conduct, is inconsistent with his prior both issues, ty are void. entered; before and after the decree was Although tribal courts are of (2) upon here have relied “growing significance importance and expectations divorce and formed based throughout country particularly (3) it; upon expectations these would Dakota,” here South Frank Pommer 10,1996 upset if be the June sheim, South Dakota Tribal Court Hand decree of divorce were Like vacatеd. (Rev.Ed. 1992)[hereinafter book 1 Tribal court, Scherer we decline to address the Handbook], they generally Court less validity of the Jones-Weston divorce de- fact, fifty years than at old. Id. 3. because, facts, cree under these Lower Brule Sioux Tribe did not enact a collaterally. divorce code until 1982. Lower Brule 13.] We affirm. [¶ (Jan. Tribe, 7, Sioux Ordinance LB-82-A 1982). Further, in 1980 there were no AMUNDSON and provisions domestic in relations or divorce GILBERTSON, Justices, concur. cluded the Rosebud Tribe’s “Pro Sioux MILLER, Justiсe, Chief concurs posed Revised Tribal Law and Order specially. Code.” Indian Codes: A Microfiche Tribal SABERS, Justice, dissents. Collection of Indian Tribal Law Codes R3 710 1980).3 adoption pro- al. elusive over an et eds.

(Ralph W. Johnson Moreover, 1992 Indians recently ceeding, as as there were where all were 4 Fisher, on reservations two “CFR” courts 424 still on a reservation. at Court Dakota. Tribal Handbook 389, 948, South at at 96 at 47 L.Ed.2d U.S. S.Ct. years amended the CFR was six Until overruling Supreme Montana agо, these courts did jurisdiction, the Court Court’s assertion relations, probate proceed over domestic adoption inter- stated inter alia is an (guardian ad or matters ings, children’s nal matter and that exercise of state litem, neglect proceedings).5 abuse and infringement an diction would be (1992) § 25 11 with 25 Compare CFR self-governance. inherent tribal (1994); Fed.Reg. § 11 also 58 see CFR Fisher, 947, at 96 47 424 U.S. S.Ct. (1993) regulations to re (proposed 54406 Lee, L.Ed.2d at 112. Accord Williams courts; proposals laws in CFR wеre vise 269, 271, 79 3 S.Ct. ultimately adopted and codified 25 CFR (1959); v. Dis- Kennerly L.Ed.2d Montana, 423, 426- trict Court does not dissent address L.Ed.2d (or a tribe cannot could (1971) curiam). situation where (per Because the tribal not) judicially its exercise which authorized the creation of ordinance (was) there is internal affairs because §by 16 of tribal court sanctioned court or the tribal court has tribal because Act, Reorganization the 25 USC Indian (had not) jurisdiction granted by not been 476, court that the Fisher reasonеd cases, government. such its own un- system such of a tribal creation court only but it is only permissible, appro- “clearly der direction ade- federal was just accept state courts priate for to quate jurisdiction defeat state over liti- jurisdiction. Otherwise, a le- and exercise gation involving reservation Indians.” the significant vacuum exist to gal would Fisher, 390, 948, 96 47 424 U.S. at S.Ct. Dakota citi- of our South Indian detriment L.Ed.2d at 113. The Court further sur- who are on the reserva- zens domiciled mised, Mon- “evеn we assume that the tions. properly adoption tana courts exercised the jurisdiction prior organization The Supreme 21.] United States [¶ of Tribe, decide, we question a do not such a with- acknowledged Court situation jurisdiction that now preempt- has been deciding handle it in v. out how to Fisher added). Thus, (emphasis ed.” Id. District Court the Sixteenth Judicial of District, 382, 943, contemplated that if did not 424 96 S.Ct. 47 Court a tribe U.S. (1976). Fisher, court, organized per- 106 have an tribal then L.Ed.2d the Su- haps the tribe to ex- was preme proper. Court found 1980, relatively Sioux Tribe 5.That courts new insti- 3. Since Rosebud has enact- tribal code, but ed a domestic relations the exact justice recognized by tution of has also been date of is unclear. Tribal enactment Indian Supreme the United States Court. See Iowa A Codes: Microfiche Collection of Indian LaPlante, 9, Co. v. U.S. 14- Mutual Ins. 480 (Ralph Law W. et al. Tribal Codes R3 Johnson 15, 975-76, 10, 971, 107 S.Ct. L.Ed.2d 19 94 1988). eds. (1987) (federal government consistently has courts); development encouraged the of tribal Regu- Code of "CFR” stands for the Federal Martinez, 49, v. Santa Clara Pueblo 436 U.S. governed by CFR lations. courts are Title 25 1670, 65, 21, 21, 1681, n. 98 S.Ct. n. 56 CFR, and are direct successors to 106, (1978) (of 21 287 L.Ed.2d 120 n. federally created Courts of Offenses operation governments tribal United in the prevalent were late on reservations in the States, operating 117 had tribal courts early nineteenth and twentieth centuries. 1976); Wheeler, and United States 435 CFR courts are more restricted much 25, 25, 1079, 1088, S.Ct. n. 55 n. 98 authority pursu- than courts established tribal 303, (1978) (Navajo 25 tribal L.Ed.2d 315 n. authority. ant to tribal Tribal Court Hand- 2 courts book at n. 10. were established

7H long been the rule in Supreme The Montana Court ad has this state the court no directly in In re ‘where has the issue more dressed subject-matter action, juris- of the Marriage 195 636 Limpy, Mont. (1981). by given diction cannot be to such court There, 266 the court held P.2d parties, any by joint act of even .a tribe had established because function ’ State, stipulation.... In Honomichl v. adjudicate forum to issues of child ing (S.D.1983), 799 re- 333 N.W.2d custody, there was no basis for state to ‘subject general stated the rule that custody over a child assume cannot be conferred involving on a action two Indians ‍‌‌​​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​​​​‌‍consent, by agreement, or waived.’ However, the court .theorized reservation. forum, “if-there no it is were Tribal Sasse, Guardianship In re jurisdic (S.D.1985) (internal to see how exercise difficult 209, 212 citations omit- infringe ted). tion State would judg- This court concluded that “[a] self-government.” Id. at 269. Tribal a court had ment which Lim/рy court cited another Montana case pronounce may is void and be attacked statement, support collaterally.” of this Little Horn any directly time or either (citations omitted). Bank v. 170 Mont. Stops, State (1976), denied, cert. P.2d Wells, In Wells v. N.W.2d (1977). 53 L.Ed.2d 238 (S.D.1990),the wife left the reser- Horn, of a state Little state enforcement in Rapid City vation she to reside where upheld on a reservation was filed for divorce. We set forth the test for of enforcing had no means where tribe may determining whether a state court Horn, Id. at 214. In Little the same. involving assume claims allowing for state enforcement rationale question always Indians: “the has been that in mecha the absence of a tribal infringe] state action [would whether the there enforcing judgment, a state nism of reservation Indians to make self-govern no infringement on tribal Id. by their own laws be ruled them.” Id. ment. Lee, (quoting Williams 251, 254 3 L.Ed.2d (1959)). on the fact that the wife Based SABERS, (dissenting). Justice prior filing moved off the reservation The holds thаt majority opinion [¶23.] divorce, found that we state court’s though not have even the state court did beyond exercise of went reser- divorce, par- jurisdiction over Jones’ affairs; fact, that recognized vation we ties, by seeking a participation active. solely ... operative “all facts did not occur divorce, on the reservation.” Id. We noted: jurisdictional grounds. divorce Dakota does not Just as South retain marriage jurisdiction over the we the issuе of exclusive addressed subject of Dakota citizens who leave a state court has matter South whether state, tribe does not retain exclusive a matter in- guardianship over jurisdiction over its marriage of volving enrolled an Indian members of leave the holding After that state court members who reservation. tribe. subject jurisdiction, matter we stat- had Therefore, Id. the Wells court concluded ed: spouse one is domiciled off “when a may a state court entertain reservation decision, reaching our trib- infringing upon divorce without action the argument [defen- overlooked Id. at al sovereignty.” right dant] waived his to contest to the The Wells court also distin- or consented many by guished enter- cases cited the husband: the state court one a “all of cases differ from

ing general appearance. these Wells - power people govern parties right and Indian way all the Indian significant themselves? Id. at on a reservаtion.” were domiciled original). “Unquestion- (emphasis cite majority opinion The fails to a state court ably, in a situation such estoppel pre- where was invoked to case jurisdiction, but subject matter would lack an Indian tribal member domiciled on vent the case here.” such is not raising Indian land from the defense of subject jurisdiction. matter Nor lack of concurred in Henderson Justice [¶27.] any. estoppel am I aware of is true insightfully He in the Wells case. result used to sоme extent when out of state or noted: foreign proceedings divorce are involved. often, pay courts seem to little ‘All too However, be- given unique situation right to the lip more than service courts, it is tween the state and tribal govern them- power peoples of Indian estoppel here inappropriate to use as subject not have matter selves.’ We do impede upon mechanism to tribal sover- disputes domestic re- eignty. and we рeople of Indian lation cases case, parties this any type of zealously guard against must their children are enrolled members thereon. creeping encroachment They are Flandreau Santee Sioux Tribe. (Henderson, J., concurring in Id. at 407 land, on Indian trust as the all domiciled (citations omitted). result) “State court prior to their divorce. Their parents were authority actions which undermine land, property is located on tribal trust infringe- impermissible tribal cоurts are an they monthly receive allotments from the govern- ment of tribal self they on the tribe and were domiciled res (Henderson, J., ment.” Id. at 409 concur- before, during ervation and after the di result) Williams, (citing ring in Clearly, a divorce be proceedings. vorce 255.) 3 L.Ed.2d at 79 S.Ct. tween these two is a “reservation case, Shortly after the Wells “Unques matter.” As stated in Wells: custody dispute court addressed a between tionably, in such a ‘all the [where situation father and an Indian mother. non-Indian were ‍‌‌​​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​​​​‌‍domiciled on a reser We stated: lack a state court would vation’] gen- Dakota has no [S]tate South Wells, jurisdiction....” eral civil over Indians on “[S]ubject jurisdic N.W.2d at 406. Clearly, reservations within its borders. by agreement, tion cannot be conferred custody dispute this were a between consent, Guardianship or waiver.” In re two enrolled members tribe domiciled Sasse, (quoting 363 N.W.2d at 212 Ho reservation, juris- subject matter nomichl, To conclude 333 N.W.2d diction the tribal court would be ex- arguing is from clusive. subject juris matter lacked imper- the divorce proceeding 144 diction over Young, Harris v. omitted) (em- (S.D.1991) (internal missibly infringes upon right of tribal citations words, added). government. estoppel self In other phasis (or “creeping leaping) constitute a would clear that this court has is encroachment” the tribal court’s exclu consistently recognized that a tribal court American Indi govern sive Native subject would exclusive matter ans on the reservation. diction if to a suit were domi- case, addressing one of the ciled on Indian land. Presented now with majority opinion’s prevent concerns was to pattern, majority opinion such a fact jurisdiction Native American Indi- the “bus loads” of circumvents law who obtained divorces state court through estoppel. past For at least the 19 ans years ago thwarting those divorce years, lip was this mere service to My response simply decrees. is that that 1999 SD 157 pattern fact not now and before us Lonny Jeanny C. PARMELY and ruling should reserve on that matter until Parmely, E. Plaintiffs and it is. This divorce was entered on June Appellants, 1996, day age clearly where law v. provided that tribal courts have exclusive Tom HILDEBRAND and Glenda Hilde jurisdiction matter over two Native brand, Appellees, Defendants and American Indians domiciled on Indian Party Plaintiffs, and Third land. years, [¶ 33.] For the law was that: Estate, Walt Simons Real Third

Subject jurisdiction matter can not be Party Defendant. by conferred consent. No. 20892. Subject mattеr can not be Supreme Court ‍‌‌​​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​​​​‌‍of South Dakota. by agreement. conferred Sept. Considered on Subject Briefs can not be by stipulation. conferred Decided Dec.

Subject can not be

conferred waiver. fact, because can

not be waived:

The lack of can be raised at

any time. time,

By anybody, any any place. fact, recently as May as this court claimed that sponte.6

must be raised sua But, anymore, because now jurisdiction by

we have estoppel. I

[¶ 37.] dissent. Brethren, deficiencies, presented by Decker v. Tschetter Hutterian tional whether ¶62, 14, SD opinion by (plurality ....”) (quoting Phipps, or not State v. J., joined by Gilbertson Miller C. (S.D.1987) (citations 406 N.W.2d omitted)). J., J., Konenkamp stating "this court is required sponte jurisdic- sua to take note of

Case Details

Case Name: Weston v. Jones

Court Name: South Dakota Supreme Court

Date Published: Dec 22, 1999

Citation: 603 N.W.2d 706

Docket Number: None

Court Abbreviation: S.D.