A new case from division I, Stillaguamish Tribe of Indians v. Smale, docket # 6239-4, held that the state, not the tribe, had continuing jurisdiction over a piece of real property, even after the property was deeded to the tribe.
In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.
Monday, July 6, 2009
Ex-Husband Should Have Immediately Informed Ex-Wife that he was Receiving Retirement Benefits
A new case from Division III, In Re Marriage of Buchanan, awarded military benefits to the former spouse and reimbursement for health insurance costs that could have been covered by the military. It also awarded attorney’s fees based on intransigence.
The parties were married for twenty years, during which time the husband accrued medical and retirement benefits from the military. The decree of dissolution awarded the wife half the community interest in the husband’s military retirement.
About three years after the Husband retired, the now ex-wife learned that the now ex-husband was receiving the benefits. Litigation ensued. The trial court awarded the ex-wife the benefits and attorney’s fees.
Benefits included an annuity, payable upon the Husband’s death, and health insurance. To ensure that the ex-wife got the benefits, the trial court ordered the ex-husband to remove his current wife as the designated survivor and replace her with the ex-wife.
The trial court also ordered the ex-husband to reimburse the ex-wife the insurance premiums she paid during the three years she should have been insured by the military.
Finally, the trial court ordered the father to pay attorney’s fees based on intransigence – he should have notified the ex-wife as soon as he began receiving the benefits.
The appellate court affirmed.
The parties were married for twenty years, during which time the husband accrued medical and retirement benefits from the military. The decree of dissolution awarded the wife half the community interest in the husband’s military retirement.
About three years after the Husband retired, the now ex-wife learned that the now ex-husband was receiving the benefits. Litigation ensued. The trial court awarded the ex-wife the benefits and attorney’s fees.
Benefits included an annuity, payable upon the Husband’s death, and health insurance. To ensure that the ex-wife got the benefits, the trial court ordered the ex-husband to remove his current wife as the designated survivor and replace her with the ex-wife.
The trial court also ordered the ex-husband to reimburse the ex-wife the insurance premiums she paid during the three years she should have been insured by the military.
Finally, the trial court ordered the father to pay attorney’s fees based on intransigence – he should have notified the ex-wife as soon as he began receiving the benefits.
The appellate court affirmed.
In a Dependency, Absent a Showing of Actual Harm, DSHS Is Required to Provide Therapeutic Visitation Between the Children and the Mother
A new case from division three, in re Dependency of Tyler L. and Brenden B, No. 27033-5-III and No. 27034-3-III, found that the trial court’s failure to order therapeutic visitation between the children and their mother was an abuse of discretion.
Absent a showing of actual harm, the court reasoned, DSHS was required to provide therapeutic visitation services. Such services would assist with the child’s attachment disorder, help both children deal with stress generated by the visits, and help remedy parental deficiencies.
Absent a showing of actual harm, the court reasoned, DSHS was required to provide therapeutic visitation services. Such services would assist with the child’s attachment disorder, help both children deal with stress generated by the visits, and help remedy parental deficiencies.
Monday, March 16, 2009
In a Custody Dispute Between a Parent and an Indian Custodian, the Child Shall Placed According to State Law
A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.
CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.
The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.
In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.
In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.
I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.
CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.
The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.
In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.
In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.
I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.
Homestead Exemption Includes Contiguous Lot
A new case from the Court of Appeals, Division III, Marriage of Baker, docket # 27242-7 affirms and expands state law regarding the Homestead Act.
Over 100 years old, the Homestead Act was designed to protect the family home from creditors, regardless of financial misfortune. In its modern form, the act shields the first $125,000 of the home from levy and execution.
Thus, if you have a $400,000 home and someone files a lien, they can only expect to take $275,000 from the sale of the house, even if the lien is for more.
The issue here was whether the homestead included the house and the lot the house was built on, or, in addition, another contiguous lot owned by the same person. The creditor levied on the contiguous lot, but not the house and primary lot.
The trial court held that the homestead included the contiguous lot. The court of appeals affirmed.
Over 100 years old, the Homestead Act was designed to protect the family home from creditors, regardless of financial misfortune. In its modern form, the act shields the first $125,000 of the home from levy and execution.
Thus, if you have a $400,000 home and someone files a lien, they can only expect to take $275,000 from the sale of the house, even if the lien is for more.
The issue here was whether the homestead included the house and the lot the house was built on, or, in addition, another contiguous lot owned by the same person. The creditor levied on the contiguous lot, but not the house and primary lot.
The trial court held that the homestead included the contiguous lot. The court of appeals affirmed.
Monday, March 2, 2009
Domestic Violence Statute Doesn't Apply to Persons in Dating Relationship Under Sixteen Years Old
A new case from the Court of Apeals, Neilson ex rel. Crump v. Blanchette, docket # 27066-1 (Division III), holds that the domestic violence statute does not cover acts between individuals in a dating relationship under the age of sixteen. The holding is based on the definition of “family or household members.”
“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”
Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.
The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.
“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”
Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.
The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.
Wednesday, February 25, 2009
Gag Order on Domestic Violence Perpetrator Violates 1st Amendment
A new decision from the court of appeals, Division II, Meredith v. Muriel, Docket No. 37098-1, held that a permanent domestic violence protection order restraining the father from contacting the US Department of Homeland Security regarding the mother’s immigration status violated the first amendment.
The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).
In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.
He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.
Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.
The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).
In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.
He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.
Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.
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