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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John v. Baker (12/16/2005) sp-5965

John v. Baker (12/16/2005) sp-5965

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ANITA JOHN, )
) Supreme Court No. S- 11176 Appellant, )
) Superior Court No.
v. ) 4FA-95-3103 CI
)
JOHN BAKER, ) O P I N I O N
)
Appellee. ) [No. 5965 - December 16, 2005]
)
Appeal    from     the
          Superior Court of the State of Alaska, Fourth
          Judicial  District, Fairbanks, Mark I.  Wood,
          Judge.

          Appearances:  Andrew  Harrington   and   Mark
          Regan,  Alaska  Legal  Services  Corporation,
          Fairbanks,   for   Appellant.     Diane    L.
          Wendlandt,  Paul  R.  Lyle,  and  Robert   C.
          Nauheim,    Assistant   Attorneys    General,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General,  Juneau, for State of Alaska,  Child
          Support Enforcement Division.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.

I.   INTRODUCTION
          In  2002,  after  multiple appeals to this  court,  the
superior  court  referred a child custody dispute  between  Anita
John  and  John  Baker to the Native Village of  Northway  tribal
court.    After  the  referral,  the  Child  Support  Enforcement
Division  asked  the  superior court whether its  standing  child
support order  which had been issued early in the course  of  the
proceedings  and well before any of the appeals   remained  valid
and enforceable.  The divisions simple inquiry mushroomed into  a
wholesale  battle  over the reach of tribal  court  jurisdiction.
The trial court ultimately determined that only child custody and
not  child  support had been referred to the tribal  court.   The
trial  court  therefore concluded that its  child  support  order
remained valid and that the division had authority to enforce the
order.   The  court then considered the jurisdictional  issue  at
some  length  and  concluded that the  courts  of  Alaska  Native
villages  lack  jurisdiction  over child  support  disputes.   We
conclude  that  the  superior court correctly  ruled  that  child
support had never been referred to the tribal court and that  the
division  could  enforce the courts child  support  order.   This
disposes  of  the case and makes it unnecessary  to  resolve  the
additional jurisdictional issues.
II.  FACTS AND PROCEEDINGS
          Anita John1 and John Baker are Alaska Natives.  John is
a member of the Native Village of Mentasta.  Baker is a member of
the  Native Village of Northway. Although never married, John and
Baker lived together in a marriage-like relationship from 1991 to
May  of  1993.  During their relationship, they had two children,
John  Malone Baker II (born in 1991), and Emmanuel Kenneth  Baker
(born in 1992).  After the parties separated in 1993, they shared
custody  of the children under an informal arrangement  with  the
children residing primarily with John.
          In  July  of  1995, after difficulties arose concerning
their  custody  arrangement, Baker petitioned for custody  before
the  Native  Village of Northway Tribal court.  The tribal  court
awarded the parents shared custody, with each parent keeping  the
children  for alternating months.  The tribal court also directed
the  parties  to help each other financially.  Baker claims  that
the court also told them orally that neither was to hit the other
with child support.
          Shortly  after  the tribal court issued  its  decision,
Baker  petitioned the Fairbanks superior court  for  custody  and
child  support.  John moved to dismiss, arguing that  the  tribal
court  had  already issued a decision on the matter and  that  it
retained  jurisdiction.  The superior court  denied  her  motion,
and,  in  April 1997, awarded full custody to Baker  and  ordered
John to pay child support.
          John  appealed.   In John v. Baker I, this  court  held
that  tribal and state courts share concurrent jurisdiction  over
child custody disputes where the child is eligible for membership
in  the  tribe.2  We remanded the case to the superior  court  to
determine whether, under principles of comity, the tribal  courts
resolution of the custody dispute . . . should be recognized.3
          On remand, the superior court declined to extend comity
to  the tribal court. John again appealed.  In John v. Baker II,4
we  reversed and remanded the case with instructions to the court
to refer the action to the tribal court.  On October 4, 2001, the
superior  court referred the matter to the Northway Tribal  Court
to conduct further child custody proceedings.5
          One  week  later, Johns attorney sent a letter  to  the
Child  Support Enforcement Division (the division)  informing  it
          that the case had been transferred to the tribal court.  He
requested  that  the  division cease attempting  to  collect  any
ongoing  support  pursuant to the superior courts  child  support
order(s).
          The  division filed a motion before the superior  court
asking it to clarify whether, given the referral of the matter to
the  tribal court, the division could enforce the superior courts
child support order.
          The  divisions motion proved to be the beginning of  an
escalating  exchange  of  voluminous  and  detailed  briefs   and
supplemental briefs between the parties.  Over the course of this
briefing  John argued that this courts holding in  John  I   that
tribal courts have jurisdiction over child custody disputes  also
encompassed  jurisdiction over child support.   She  also  argued
that  the  superior  court  referred the  case  in  its  entirety
including  both child custody and child support   to  the  tribal
court,  and  that  the superior courts child  support  order  was
therefore  no  longer binding.  In addition, she maintained  that
Northways  child support proceedings were entitled to full  faith
and  credit:  she contended that the land on which  the  relevant
acts  occurred qualified as Indian Country, and she reasoned that
because  federal law requires full faith and credit to be granted
to child support orders that issue from courts of Indian Country,
Northways order merited full faith and credit.
          For  its  part, the division argued that  the  superior
court  referred only custody and not support to the tribal court.
It  also  argued that Alaska Native villages lack subject  matter
jurisdiction over child support.  It argued that if tribal courts
could  exercise jurisdiction over child support,  they  would  be
able  to  control  and direct the actions of division  officials.
This,  the division argued, would run afoul of the Supreme Courts
determination  in  Nevada  v.  Hicks  that  tribal  courts   lack
jurisdiction over state officers enforcing state law  since  such
jurisdiction  would involve tribal control over those  officers.6
The division also argued that even if Northway might have subject
matter  jurisdiction, it would be inappropriate to extend  comity
to  Northways  order because the village would  not  qualify  for
federal child support enforcement grants.
          After  hearing oral argument, the superior court issued
a  decision.  The court concluded that there was no tribal  court
order  to  which it could extend comity, that child  support  had
never  been  referred to the tribal court, and that the  superior
court  retained  jurisdiction. It therefore  concluded  that  its
child  support  order was still binding and  enforceable  by  the
division.   It  also ruled in the alternative  that  the  village
lacked jurisdiction over child support disputes.
          John appeals.
III. DISCUSSION
          This  case requires us to interpret four court orders.7
We  must  determine  whether the issue of child  support  already
resides  with the tribal court by virtue of orders issued  either
by  this  court, by the superior court, or by the  tribal  court.
First,  we must determine whether our opinions in John I or  John
II  required  the superior court to refer both child custody  and
          child support to the tribal court, or whether, as the division
contends,  we  only  addressed child custody in  those  opinions.
Second, we must determine whether the superior courts response to
John  II   in  which it referred the matter to the  tribal  court
included  child  support or whether the superior  court  referred
child custody alone to the tribal court.  If both this court  and
the  superior court intended that only child custody be  referred
to  the superior court, we will then need to consider whether the
tribal courts original order  in which it directed the parties to
help  each  other financially  was a support order to  which  the
Alaska courts should extend comity.
     A.   This Courts Rulings in John I and John II
          John  argues that in John I we implicitly conceded that
the  courts of Alaska Native villages have jurisdiction to  issue
child  support  orders.  She argues that  in  John  II,  when  we
directed  the  superior court to refer the action to  the  tribal
court,  we  intended that both the child custody  and  the  child
support matters be referred to the tribal court.
          We disagree.
          The question this court addressed in John I was whether
Northway  Village  had the jurisdiction to adjudicate  a  custody
dispute  involving  children who are  tribal  members.8   In  our
statement of facts and proceedings, we described only the custody
aspects  of the case and made no mention of child support.9   And
in  our  conclusion, we held that [t]ribal courts in Alaska  have
jurisdiction  to  adjudicate  child  custody  disputes  involving
tribal members.10
          To  be sure, both the court and the dissent referred in
passing  to  the  possibility that an effect of John  Is  holding
might  be  to  allow tribal courts to issue child support  awards
that did not replicate the child support schedule of Alaska Civil
Rule  90.3.11  But a passing reference to child support does  not
transform  our  lengthy consideration of  child  custody  into  a
holding about child support.
          Our conclusion in John II supports this reasoning.   In
John  II,  we  remanded  the case to the superior  court  and  we
expressly  stated that the reason for the remand was so  that  it
could  refer the matter to the Northway court to conduct  further
child custody proceedings.12
          Given  the plain language of John I and John II, it  is
clear that we believed that the custody and support matters  were
separate and that the transfer of the former to the tribal  court
did not entail the transfer of the latter.
     B.   The Superior Courts 2001 Order
          Following  our  remand in John II, the  superior  court
referred  the matter to the Northway tribal court.   John  argues
that  this  referral included child support.   But  the  superior
courts  order  specified that [t]his matter is  referred  to  the
Northway   Tribal   Court  to  conduct  further   child   custody
proceedings.  This language clearly indicates that child  custody
and not child support were referred to the tribal court.
     C.   The Tribal Courts Original Order
          Once  the  superior court concluded that  its  previous
order  did  not  refer  child support to  the  tribal  court,  it
          considered Johns argument that Northways 1995 custody order
included  a  support order and that the superior court  ought  to
extend  comity  to that order.  The superior court observed  that
the  tribal  court  required that each  parent  help  each  other
financially   and instructed the parties not to   hit  the  other
with  child  support.    The superior court  concluded  that  the
tribal  courts  two statements do not constitute a valid  support
order.   Because  the court concluded that there  was  no  tribal
support  order  to  which  it  could  grant  comity,  the   court
determined that its own previous support order was the only valid
order and that it retained jurisdiction over child support.
          We  agree.  Although a tribal child support order  need
not  match  the  format of a support order issued by  the  Alaska
courts,  it  must,  at  a  minimum,  be  concrete  enough  to  be
enforceable.   Northways order does not state a  specific  dollar
amount  and  provides no criteria by which to judge  whether  the
parties  were  fulfilling their obligations.  We therefore  agree
with  the  superior court that Northways 1995  order  was  not  a
recognizable child support order to which the court could  extend
comity.
          This  interpretation is supported by Northway  Villages
own assessment of its 1995 order.  In one of the amicus briefs it
filed  in  John  I, Northway Village itself maintained  that  the
tribal  courts  1995  order  did  not  include  child  support.13
Although  we  generally apply de novo review when interpreting  a
court  order,14 we think that where an order has  issued  from  a
foreign  jurisdiction it is appropriate for us to  consider  that
jurisdictions   interpretation  of  its  own  order.    Northways
interpretation  supports our understanding  of  the  tribes  1995
custody order.
          We  also note that, given the procedural posture of the
case,  it  would not have been proper for the superior  court  to
refer  any  ongoing issues of child support to the tribal  court.
The  superior  court  was never presented with  a  motion  either
requesting that comity be extended to the tribal courts  putative
support  order  or requesting that the superior court  relinquish
its  ongoing  jurisdiction and allow the tribal court  to  assume
jurisdiction  over  child support.  Rather, the  division  merely
asked whether the superior court retained jurisdiction over child
support.  Because no formal request for comity had been made  and
the issue of child support had not been referred to Northway, the
superior court correctly determined that it retained jurisdiction
over  child support.  Accordingly, we affirm the superior  courts
conclusion  that  the division could enforce the superior  courts
child support order.15
IV.  CONCLUSION
          For  these   reasons,  we AFFIRM  the  superior  courts
decision  that  it retained jurisdiction over child  support  and
that the division has authority to enforce that order.
_______________________________
     1     John  has married and is now Anita Adams.  To maintain
consistency, we refer to her by her prior name.

     2    John v. Baker, 982 P.2d 738, 759 (Alaska 1999).

     3    Id. at 765.

     4    John v. Baker, 30 P.3d 68 (Alaska 2001).

     5     While the comity issue was pending before the superior
court, we considered another appeal in this case.  John v. Baker,
No.  S-09556  (March  29, 2001). Although that  appeal  concerned
child  support,  it  is  not relevant to our  resolution  of  the
present appeal.

     6    533 U.S. 353 (2001).

     7     The  proper  interpretation of  a  court  order  is  a
question  of  law  to  which we apply our  independent  judgment.
E.g., Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

     8    John I, 982 P.2d at 744.

     9    Id. at 743-44.

     10    Id. at 765.

     11     Id.  at 764 n.185 (Fabe, J., for the court)  and  802
(Matthews, J. dissenting).

     12    John II, 30 P.3d at 78.

     13     Amicus R. Br. of Native Village of Northway, John  v.
Baker, No. S-08099, filed May 26, 1998, p.8.

     14    State, CSED v. Wetherelt, 931 P.2d 383, 387 n.4 (Alaska
1997).

     15     Our  resolution of the case on this ground  makes  it
unnecessary  to express any opinion on other issues addressed  by
the superior court and raised by the parties.