Langdeau v. Langdeau

#24546, #24547, #24593-aff in pt, rev in pt & rem-DG

2008 SD 44

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
(#24546, #24547)
DEANN LESLIE LANGDEAU, Plaintiff and Appellant,

v.

JEFFREY JAY LANGDEAU, Defendant and Appellant.
-----------------------------------------------------------
(#24593)
JEFFREY JAY LANGDEAU, Petitioner and Appellee,

v.

DEANN LESLIE LANGDEAU, Respondent and Appellant.
* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
LYMAN AND HUGHES COUNTIES, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *
PATRICIA A. CARLSON
Pierre, South Dakota Attorney for plaintiff
and appellant.

JAMIE L. DAMON
Pierre, South Dakota Attorney for defendant
and appellee.

* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 12, 2008

OPINION FILED 06/11/08
#24546, #24547, #24593

GILBERTSON, Chief Justice

[¶1.] This appeal arises from issues related to simultaneous divorce

proceedings brought in the South Dakota Sixth Judicial Circuit Court and the

Lower Brule Sioux Tribe Reservation Tribal Court. On May 2, 2007, the circuit

court entered an order dismissing the divorce complaint (#24546) and temporary

protection order (#24547) filed by Deann Langdeau (Deann). On June 18, 2007, the

circuit court entered an order recognizing tribal court orders dated May 11, 2007,

associated with the tribal court divorce petition of Jeffrey Jay Langdeau (Jay). We

affirm in part, reverse in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶2.] Deann and Jay were married on May 12, 1998. Deann is a non-Indian.

Jay is an enrolled member of the Lower Brule Sioux Tribe (LBST). The couple

resided together on fee land within the external boundaries of the Lower Brule

Sioux Tribe Reservation (the “Reservation”) from January 1998 until February 22,

2007. Two children, ages nine years and six years, were born of the marriage and

were either enrolled or eligible for enrollment in the LBST. 1

[¶3.] Deann left the Reservation with the children on February 22, 2007 and

took up residence with her mother in Onida, South Dakota. On February 27, 2007,

Deann filed a petition for divorce with the circuit court in Lyman County. On the

same day, Jay was served with the summons and complaint. On February 28, 2007,

Deann filed a petition and affidavit in Sully County for a domestic abuse protection

1. While there is no dispute that the oldest child was enrolled in the LBST, the
record is conflicting as to the enrollment status of the youngest child.

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#24546, #24547, #24593

order against Jay. In her affidavit, Deann alleged multiple occasions in which Jay

physically abused or endangered her and the children. On the same day, the circuit

court signed an ex parte temporary protection order, requiring Jay to have no

contact with Deann or the children. 2 Jay filed for divorce in tribal court on

February 28, 2007. Deann received service of Jay’s tribal divorce petition on the

same day. Additionally on February 28, the tribal court entered an ex parte order

on Jay’s ex parte motion for interim relief. The order established a visitation

schedule with the children for Jay and directed Deann to provide Jay with copies of

certain financial documents and to return a specified amount of cash to their bank

account.

[¶4.] Jay filed a motion to dismiss the circuit court’s ex parte temporary

protection order for lack of jurisdiction. Following a March 16, 2007 hearing in

Sully County, the circuit court denied Jay’s motion, but established its own

visitation schedule. On April 5, 2007, a second hearing in regard to the temporary

protection order was held; after which, the temporary protection order was

dismissed in Sully County and reissued in Lyman County. The reissued order was

entered in Lyman County on April 6, 2007.

[¶5.] Jay filed motions in Lyman County to dismiss Deann’s divorce action

and the temporary protection order for lack of jurisdiction and to enforce the

visitation schedule established earlier by the tribal court. A motions hearing was

2. Deann had an older child from a previous relationship who had been living
with Jay, Deann and the younger children prior to Deann’s departure from
the marital domicile. This older child was also named in the temporary
protection order as a person with whom Jay was to have no contact.

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#24546, #24547, #24593

conducted on April 10 and 11, 2007; after which, the circuit court dismissed the

divorce action and the circuit court’s ex parte temporary protection order in Lyman

County. The circuit court adjudged that under the Uniform Child Custody

Jurisdiction Act, the court did not have jurisdiction over the divorce and child

custody because for most of the six months preceding Deann’s divorce petition, the

children had lived within the external boundaries of the Reservation. Further

adjudging South Dakota to be an inconvenient forum and thereby declining

jurisdiction, the circuit court determined the Reservation to be the home of the

parties and therefore, the appropriate forum for the divorce and all related matters.

The circuit court’s order was entered on May 2, 2007 without memorandum opinion,

findings of fact or conclusions of law.

[¶6.] On April 11, 2007, Jay filed with the tribal court, a petition and

affidavit for ex parte order of protection against Deann. On the same day, the tribal

court issued the ex parte order of protection, including notice of hearing to be held

April 12, 2007, which was served upon Deann. On April 12, 2007, by way of special

appearance, Deann filed a petition and motion contesting the adequacy of service of

process and notice for the April 12 hearing. In the alternative, Deann requested a

continuance. 3

[¶7.] On April 13, 2007, the tribal court entered an ex parte temporary order

of protection against Deann. The order required Deann to have no contact with Jay.

It also reiterated the provisions of the tribal court’s February 28, 2007 ex parte

3. There is no documentation in the record pertaining to the April 12, 2007
tribal court hearing.

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#24546, #24547, #24593

order for interim relief pertaining to Jay’s visitation with the children and demand

for Deann’s return of cash and documents. See supra ¶3. On April 19, 2007, the

tribal court renewed its ex parte temporary order of protection including the

provisions from the earlier ex parte order for interim relief. A hearing date on the

ex parte order was set for May 2, 2007.

[¶8.] At the May 2, 2007 tribal court hearing, Deann appeared through legal

counsel and requested a continuance. The tribal court denied Deann’s request and

proceeded forward by issuing an order of protection and granting in part Jay’s

earlier motion for interim relief as to visitation. The interim-relief order set out

that Jay’s visitation should occur each weekend, beginning with 6:00 p.m. on

Friday, May 4, 2007. However, while the schedule provided that the oldest child

was supposed to be returned to Deann the following Sunday at 4:00 p.m., it

required the youngest child to remain with Jay. 4 According to the order, the

remaining issues raised by Jay’s ex parte motion for interim relief were scheduled

for hearing on May 15, 2007.

[¶9.] The tribal court orders directed Deann and Jay to exchange the

children in the parking lot of Oahe, Inc. in Pierre, South Dakota. The first

exchange did not occur as planned. 5 The tribal court then entered amended orders

4. The visitation provisions were also included in the tribal court’s order of
protection.

5. Why this exchange did not occur is disputed by the parties. Each claim that
the other did not show up for the exchange.

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#24546, #24547, #24593

on May 11, 2007, which set out the lobby of the Pierre Police Department as the

exchange location commencing Friday, May 11, 2007 at 6:00 p.m. Jay alleged that

Deann did not show up for this exchange at the appointed time and place.

[¶10.] On May 21, 2007, Jay filed with the circuit court a motion to recognize

the tribal court’s amended orders of May 11 and to obtain authorization to have

South Dakota law enforcement enforce the tribal court orders. The circuit court

heard the matter on June 4, 2007 and thereafter, entered its order recognizing the

tribal court’s May 11, 2007 orders. No corresponding memorandum opinion,

findings of fact or conclusions of law were entered. Subsequent to the proceedings

giving rise to the issues in this case, Jay was granted a default divorce judgment by

the tribal court.

[¶11.] We consider five issues raised by Deann on appeal:

1. Whether the circuit court erred when it concluded
that based on the residency of the parties and the
children that it did not have jurisdiction to hear the
child custody and divorce proceedings where Deann
filed for divorce in Lyman County five days after
moving off the Lower Brule Sioux Tribe Reservation,
taking up residence in South Dakota.
2. Whether under SDCL 26-5B-204(a), the circuit court
is required to exercise temporary emergency
jurisdiction as to child custody when a prima facie
case has been made that children or a parent have
been subjected to abuse or mistreatment.
3. Whether the circuit court abused its discretion when,
without entering findings of fact and conclusions
of law, it declined jurisdiction after Deann alleged
abuse and mistreatment as a basis for temporary
emergency jurisdiction, pursuant to SDCL 26-5B-
207(b).
4. Whether the circuit court abused its discretion when,
without entering findings of fact and conclusions
of law, it dismissed its temporary protection order.

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#24546, #24547, #24593

5. Whether the circuit court abused its discretion when,
without entering findings of fact and conclusions
of law, it recognized the May 11, 2007 tribal court
protection order and order for interim relief.

STANDARD OF REVIEW

[¶12.] We review a circuit court’s decision whether to exercise

jurisdiction over child custody and divorce actions under the abuse of discretion

standard. See generally, Regalado v. Mathieson, 2004 SD 87, ¶5, 684 NW2d 67, 70

(reiterating this Court’s application of the abuse of discretion standard to circuit

court decisions declining jurisdiction in favor of more convenient forums under the

predecessor act to our currently enacted Uniform Child Custody Jurisdiction

Enforcement Act (UCCJEA)) (citing Ford v. Ford, 2002 SD 147, ¶7, 655 NW2d 85,

86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶16, 591 NW2d 798, 804 (citation

omitted)), see also Lustig v. Lustig, 1997 SD 24, ¶5, 560 NW2d 239, 241 (citations

omitted).

Questions of law, including statutory construction, we
review de novo. As the questions here are primarily matters
of statutory interpretation, we review them under the de novo
standard. A court’s failure to consider the factors relevant
to the principle of inconvenient forum under the [UCCJEA]
is an abuse of discretion.

Lustig, 1997 SD 24, ¶5, 560 NW2d at 241 (internal citations omitted).

The purpose of statutory construction is to discover the
true intention of the law which is to be ascertained primarily
from the language expressed in the statute. The intent
of a statute is determined from what the legislature said,
rather than what the courts think it should have said,
and the court must confine itself to the language used.
Words and phrases in a statute must be given their plain
meaning and effect. When the language in a statute is
clear, certain and unambiguous, there is no reason for
construction, and the Court’s only function is to declare

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#24546, #24547, #24593

the meaning of the statute as clearly expressed. Since
statutes must be construed according to their intent, the
intent must be determined from the statute as a whole,
as well as enactments relating to the same subject. But,
in construing statutes together it is presumed that the
legislature did not intend an absurd or unreasonable result.

US West Communications, Inc. v. Pub. Utilities Comm’n of State of South Dakota,

505 NW2d 115, 123 (SD 1993) (internal citations omitted).

ANALYSIS AND DECISION

[¶13.] 1. Whether the circuit court erred when it concluded
that based on the residency of the parties and
the children that it did not have jurisdiction
to hear the child custody and divorce proceedings
where Deann filed for divorce in Lyman County
five days after moving off the Lower Brule Sioux
Tribe Reservation, taking up residence in South
Dakota.

[¶14.] In cases where the issue of child custody is incidental to that of

divorce, and the circuit court has jurisdiction, the court may decline to exercise

jurisdiction over child custody while retaining it over the divorce. SDCL 26-5B-

207(d); Lustig, 1997 SD 24, ¶13, 560 NW2d at 244 (quoting predecessor statute to

SDCL 26-5B-207 6 ). However, the circuit court’s decision whether to exercise

jurisdiction as a convenient forum requires independent consideration of each issue

and separate determinations. Lustig, 1997 SD 24, ¶14, 560 NW2d at 245 (where

6. The pertinent part of SDCL 26-5B-207 that is functionally equivalent to that
part of its predecessor statute, SDCL 26-5A-7 of the former Uniform Child
Custody Jurisdiction Act, quoted in Lustig provides as follows:

A court of this state may decline to exercise its jurisdiction under this
chapter if a child- custody determination is incidental to an action for
divorce or another proceeding while still retaining jurisdiction over the
divorce or other proceeding.

(continued . . .)
-7-
#24546, #24547, #24593

the divorce action was properly commenced in South Dakota, holding that the

circuit court’s determination that it was an inconvenient forum to hear the

incidental child custody issue was not a ground for the same determination as to

the encompassing divorce action) (citing SDCL 25-4-30; 15-7-2(9)). Divorce

jurisdiction is not controlled per se by the UCCJEA; in fact a circuit court errs when

it dismisses a divorce proceeding based on the jurisdictional requirements of the

UCCJEA. Id. (clarifying the extent of the jurisdictional scope of the UCCJEA’s

predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA)) (citations

omitted). Therefore, we will address the issues of child custody and divorce

separately in reviewing the circuit court’s decision to dismiss the February 22, 2007

complaint brought by Deann in Lyman County.

The Circuit Court’s Dismissal Of The Child Custody Proceeding For Lack Of
Jurisdiction Due To The Residency Of The Children

[¶15.] As a preliminary matter, for the circuit court to act as a forum for a

child custody determination, it must establish jurisdiction under SDCL 26-5B-201.

This statute provides:

(a) Except as otherwise provided in § 26-5B-204, a court
of this state has jurisdiction to make an initial child-custody
determination only if:

(1) This state is the home state of the child on the date
of the commencement of the proceeding, or was
the home state of the child within six months before
the commencement of the proceeding and the child
is absent from this state but a parent or person
acting as a parent continues to live in this state;

_________________
(. . . continued)
SDCL 26-5B-207(d) (emphasis added).

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#24546, #24547, #24593

(2) A court of another state does not have jurisdiction
under paragraph (1), or a court of the home state
of the child has declined to exercise jurisdiction
on the ground that this state is the more appropriate
forum under § 26-5B-207 or 26-5B-208, and:

(A) The child and the child’s parents, or the child
and at least one parent or a person acting
as a parent, have a significant connection
with this state other than mere physical
presence; and

(B) Substantial evidence is available in this state
concerning the child’s care, protection, training,
and personal relationships;

(3) All courts having jurisdiction under paragraph
(1) or (2) have declined to exercise jurisdiction
on the ground that a court of this state is the
more appropriate forum to determine the custody
of the child under § 26-5B-207 or 26-5B-208; or

(4) No court of any other state would have jurisdiction
under the criteria specified in paragraph (1),
(2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for
making a child-custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party
or a child is not necessary or sufficient to make a child-
custody determination.

SDCL 26-5B-201 (emphasis added).

[¶16.] “A court of this state shall treat a tribe as if it were a state of the

United States for the purpose of applying [the general provisions and enforcement

sections of the UCCJEA].” SDCL 26-5B-104(b).

[¶17.] While we would normally expect the circuit court to enter findings of

fact contemporaneous with an order adjudging it to have no jurisdiction to hear

child custody proceedings, in this case there is no dispute as to the material facts.

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#24546, #24547, #24593

Jay is an enrolled member of the LBST. The mutual children of Deann and Jay are

either enrolled or eligible for enrollment in the LBST. The children resided within

the exterior boundaries of the LBST for all but the last five days of the six month

period preceding Deann’s February 27, 2007, Lyman County divorce complaint.

Consequently, we find no error in the circuit court’s order dismissing the child

custody proceeding for lack of jurisdiction due to the residency of the children.

The Circuit Court’s Dismissal Of The Divorce Proceeding For Lack Of Jurisdiction
Due To The Residency Of The Parties

[¶18.] Circuit courts may not refuse to hear divorce proceedings properly

commenced first in South Dakota, in favor of another state’s jurisdiction. Lustig,

1997 SD 24, ¶14, 560 NW2d at 245 (citing SDCL 25-4-30; SDCL 15-7-2(9) 7 ). Circuit

court’s have subject matter jurisdiction over all divorce actions. Parsley v. Parsley,

2007 SD 58, ¶17, 734 NW2d 813, 818 (citing SDCL 16-6-9(4)). For the circuit court

to exercise personal jurisdiction over the parties in a divorce action, the plaintiff

must be a resident of this state at the time the divorce action is commenced. Id.

(citing SDCL 25-4-30 8 ). See also Wells v. Wells, 451 NW2d 402, 404 (SD 1990) (“A

7. SDCL 15-7-2 provides in pertinent part:

Any person is subject to the jurisdiction of the courts of this state as to any
cause of action arising from the doing personally, through any employee,
through an agent or through a subsidiary, of any of the following acts:
...

(9) With respect to any action for divorce, separate maintenance, or spousal
support the maintenance in this state of a matrimonial domicile at the
time the claim arose or the commission in this state of an act giving rise
to the claim, subject to the provisions of § 25-4-30; . . . .

8. SDCL 25-4-30 provides:
(continued . . .)
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state where only one spouse is domiciled has this power because domicile creates a

relationship with a state, and ‘[e]ach state as a sovereign has a rightful and

legitimate concern in the marital status of persons domiciled within its borders’”)

(citing Williams v. State of North Carolina, 317 US 287, 298, 63 SCt 207, 213, 87

LEd 279 (1942)). “[T]he residence must be an actual residence as distinguished

from a temporary abiding place, and, further than this, it must not be a residence

solely for the purpose of procuring a divorce[.]” Parsley, 2007 SD 58, ¶17, 734

NW2d at 818 (citation omitted).

[¶19.] Our opinion in Wells is instructive on the divorce issue. In that case,

both spouses were enrolled members of the Crow Creek Sioux Tribe and resided on

the Crow Creek Sioux Tribe Reservation. Id. at 402. The wife left the reservation

in April 1987 and settled in Rapid City, South Dakota the following July. The

husband immediately filed for divorce in tribal court, but could not effect valid

service of process pursuant to SDCL 1-1-25. Id. at 402, 403. In August 1987, the

wife commenced divorce proceedings in circuit court, which was later dismissed

because wife was unable to effect valid service of process pursuant to tribal law. Id.

at 403. Accepting his method of service of process, the tribal court granted the

husband a default judgment in November 1987. In March 1988, the wife

_________________
(. . . continued)

The plaintiff in an action for divorce or separate maintenance must, at the
time the action is commenced, be a resident of this state, or be stationed in
this state while a member of the armed services, and in order that each party
be entitled to the entry of a decree or judgment of divorce or separate
maintenance, that residence or military presence must be maintained until
the decree is entered.

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#24546, #24547, #24593

commenced new divorce proceedings in circuit court and obtained valid service of

process. The husband appeared specially; contesting jurisdiction on grounds that

there was no longer a case in controversy subsequent to the tribal divorce judgment

and that South Dakota had no subject matter jurisdiction. The circuit court

rejected the husband’s jurisdictional claims. The court concluded that it had

concurrent subject matter jurisdiction and it refused to recognize the tribal court

divorce because of the husband’s failure to comply with personal service

requirements of SDCL 1-1-25.

[¶20.] On appeal the husband argued that South Dakota’s jurisdictional

claim was an infringement on tribal sovereignty. Id. at 404-05. In rejecting his

argument we considered the test set out by the United States Supreme Court in

Williams v. Lee, 358 US 217, 79 SCt 269, 3 LEd2d 251 (1959) (Lee Infringement

Test). We observed that the Lee Infringement Test was derived from facts that

encompassed a single transaction involving an Indian, which occurred on a

reservation and that the purpose for the Test is to protect tribal sovereignty in the

realm of disputes involving Indians that take place entirely on a reservation, i.e.

“[r]eservation affairs.” Id. at 405 (quoting Lee, 358 US at 223, 79 SCt at 272, 3

LE2d 251).

[¶21.] Comparing the purpose of the Lee Infringement Test with the facts in

Wells we concluded that once the wife left the reservation and took up residence in

Rapid City, the state acquired an interest in the matter. Therefore, the divorce

could not be characterized as exclusively a reservation affair. We held that “without

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a proper tribal court divorce, the state court is merely exercising its own concurrent

jurisdiction over the marriage of one of its domiciliaries.” Id.

[¶22.] We now contrast the facts of Wells with those of the instant case.

Deann is a non-Indian. Notwithstanding the fact that she left the Reservation five

days before filing for divorce in Lyman County, as a non-Indian living within the

State of South Dakota, she was at all times relevant, a resident of this state.

Unlike Wells, where the parties both were enrolled members of a tribe and the State

did not acquire jurisdiction over the dissolution until one of them left the

reservation, here Deann was a resident of South Dakota and the State at all times

had both subject matter and personal jurisdiction over the dissolution of her

marriage to Jay. See id. at 406 n* (citing Byzewski v. Byzewski, 429 NW2d 394

(ND 1988) (holding in a case where non-Indian husband and Indian wife resided on

an Indian reservation that state court had subject matter jurisdiction over the

marital dissolution)).

[¶23.] As there were concurrent divorce proceedings pending in the circuit

and tribal courts, what then becomes determinative to the situs of the adjudication

is the procedural history. Deann filed for divorce in Lyman County on February 27,

2007. Jay received valid service of process on the same day. Jay filed for divorce in

tribal court on February 28, 2007. Deann received valid service of process on the

same day. Since Deann’s complaint filed in Lyman County was first and it was

properly commenced, the circuit court may not refuse to hear the divorce

proceeding. See Lustig, 1997 SD 24, ¶14, 560 NW2d at 245 (citing SDCL 25-4-30;

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15-7-2(9)). Consequently, we conclude the circuit court erred when it concluded it

had no jurisdiction and dismissed the divorce proceedings.

[¶24.] 2. Whether under SDCL 26-5B-204(a), the circuit
court is required to exercise temporary emergency
jurisdiction as to child custody when a prima
facie case has been made that children or a parent
have been subjected to abuse or mistreatment.

[¶25.] The affidavit filed by Deann in support of her petition for a domestic

abuse protection order, refiled in Lyman County, included allegations that on

multiple occasions Jay physically abused or endangered her and the children.

Deann argues that her allegations stated a prima facie case of mistreatment and

abuse that required the circuit court to exercise temporary emergency jurisdiction

over the child custody proceedings pursuant to SDCL 26-5B-204(a).

[¶26.] SDCL 26-5B-204(a) is an additional basis under which the circuit court

has jurisdiction over child custody beyond that established by the residency of the

children and the parties under SDCL 26-5B-201. See supra ¶15 (reciting SDCL 26-

5B-201). SDCL 26-5B-204(a) provides:

A court of this state has temporary emergency jurisdiction
if the child is present in this state and the child has been
abandoned or it is necessary in an emergency to protect
the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment
or abuse.

[¶27.] When the circuit court is found to have jurisdiction over child custody,

as a matter of discretion, it may yield jurisdiction to another, more appropriate

forum pursuant to SDCL 26-5B-207(a). In its order dismissing Deann’s divorce

complaint, the circuit court referenced this statute when it stated that it “declines

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jurisdiction because South Dakota is an inconvenient forum . . . .” SDCL 26-5B-

207(a) provides:

A court of this state which has jurisdiction under this
chapter to make a child-custody determination may decline
to exercise its jurisdiction at any time if it determines that
it is an inconvenient forum under the circumstances and
that a court of another state is a more appropriate forum.
The issue of inconvenient forum may be raised upon motion
of a party, the court’s own motion, or request of another
court.

(Emphasis added).

[¶28.] In the absence of ambiguity, there is no need for statutory

construction. US West Communications, Inc., 505 NW2d at 123 (citation omitted).

Jurisdiction pursuant to SDCL 26-5B-204(a) may be declined in favor of a more

appropriate forum under SDCL 26-5B-207(a). See Lustig, 1997 SD 24, ¶14, 560

NW2d at 245 (opining that “[l]aws must be read in consonance with the entire

statutory scheme”) (citing DeSmet Ins. Co. v. Gibson, 1996 SD 102, ¶8, 552 NW2d

98, 101). Thus, the circuit court did not violate SDCL 26-5B-204(a) when it declined

to exercise temporary emergency jurisdiction over the child custody matter because

under SDCL 26-5B-207(a) it had authority to conclude it was an inconvenient forum

as compared to the Lower Brule Sioux Tribal Court.

[¶29.] 3. Whether the circuit court abused its discretion
when, without entering findings of fact and
conclusions of law, it declined jurisdiction after
Deann alleged abuse and mistreatment as a basis
for temporary emergency jurisdiction, pursuant
to SDCL 26-5B-207(b).

[¶30.] In lieu of a provision requiring the circuit court to exercise temporary

emergency jurisdiction pursuant to SDCL 26-5B-204(a), Deann argues that her

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affidavit in support of her petition for a domestic abuse protection order constituted

a prima facie case of mistreatment and abuse, thus requiring the circuit court to

conduct an evidentiary hearing into her claims and enter findings of fact and

conclusions of law before yielding jurisdiction to the tribal court pursuant to SDCL

26-5B-207(a). Deann avers that 26-5B-207(b) supports her position that findings

were required. That subsection provides in part:

Before determining whether it is an inconvenient forum,
a court of this state shall consider whether it is appropriate
for a court of another state to exercise jurisdiction. For
this purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including:

(1) Whether domestic violence has occurred and is likely
to continue in the future and which state could best
protect the parties and the child;
....

SDCL 26-5B-207(b) (emphasis added).

[¶31.] “The [UCCJEA] was designed to produce jurisdictional certitude for

the sake of children. Deferring a child custody dispute to another forum can ‘assure

that the best interests of the child . . . are not subordinated to the parents’ interest

in obtaining the best terms of the divorce.’” Lustig, 1997 SD 24, ¶14, 560 NW2d at

245 (citation omitted). Although, declining jurisdiction pursuant to the

inconvenient forum provision is discretionary and “[t]he dominant purpose of the . .

. provision is to encourage restraint in the exercise of jurisdiction” id. ¶7 (citation

omitted), the deference we extend to the circuit court in reviewing its use of this

discretion imposes a solemn responsibility. Fuerstenberg, 1999 SD 35, ¶23, 591

NW2d 798, 807 (where the circuit court failed to enter findings on material disputed

facts, reversing the court’s decision to modify custody and remanding for a more

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systematic consideration of the traditional factors relevant to the best interests of

the child) (citing Michelson v. United States, 335 US 469, 480, 69 SCt 213, 221, 93

LEd 168 (1948)). Compare Regalado, 2004 SD 87, ¶¶6-10, 684 NW2d at 70-71

(affirming the circuit court’s decision to decline jurisdiction as an inconvenient

forum on reliance of its findings of fact that appeared on review “to be supported by

the record and all reasonable inferences drawn therefrom”).

[¶32.] In this case, Deann alleged serious incidents of physical abuse and

child endangerment in her affidavit in support of her petition for domestic abuse

protection. Deann alleged that Jay physically abused her and that he abused

alcohol to the extent that he endangered the children. Deann stated that while

under the influence Jay would drive with the children and that on one occasion he

enlisted an 11-year-old child to drive him and their two children home from Lower

Brule, South Dakota. Deann also alleged that on yet another occasion, Jay

disciplined their oldest child by shooting her with a BB gun.

[¶33.] As we observe, SDCL 26-5B-207(b) provides that the circuit court

“shall consider” factors including “[w]hether domestic violence has occurred and is

likely to continue in the future[.]” We conclude the Legislature, when it enacted

this section of the UCCJEA, intended the circuit court to enter the findings of fact

and conclusions of law that we relied upon during appellate review under the

predecessor UCCJA, before yielding jurisdiction over child custody to another

forum. Accordingly, on this issue, we remand to the circuit court for findings of fact

and conclusions of law and evidentiary proceedings satisfactory for the entry

thereof.

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[¶34.] 4. Whether the circuit court abused its discretion
when, without entering findings of fact and
conclusions of law, it dismissed its temporary
protection order.

[¶35.] Deann also argues that the circuit court was required to enter findings

of fact and conclusions of law before dismissing its temporary protection order.

However, she fails to cite any authority to support her position. Therefore, this

issue is waived on appeal. See State v. Pellegrino, 1998 SD 39, ¶22, 577 NW2d 590,

599 (failure to cite supporting authority on appeal is a violation of SDCL 15-26A-

60(6) 9 and the issue is thereby waived) (citing State v. Knoche, 515 NW2d 834, 840

(SD 1994); State v. Dixon, 419 NW2d 699, 701 (SD 1988)).

[¶36.] 5. Whether the circuit court abused its discretion
when, without entering findings of fact and
conclusions of law, it recognized the May 11,
2007 tribal court protection order and order for
interim relief.

[¶37.] Deann avers that pursuant to SDCL 1-1-25, the tribal court’s May 11,

2007 amended protection order and amended order for interim relief are not

entitled to recognition in South Dakota. SDCL 1-1-25 provides:

No order or judgment of a tribal court in the State of South
Dakota may be recognized as a matter of comity in the
state courts of South Dakota, except under the following
terms and conditions:

(1) Before a state court may consider recognizing a tribal
court order or judgment the party seeking recognition

9. SDCL 15-26A-60(6) mandates that the appellant brief shall contain “[a]n
argument [and that t]he argument shall contain the contentions of the party
with respect to the issues presented, the reasons therefore, and the citations
to the authorities relied on.”
(Emphasis added).

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shall establish by clear and convincing evidence that:

(a) The tribal court had jurisdiction over both the subject
matter and the parties;

(b) The order or judgment was not fraudulently obtained;

(c) The order or judgment was obtained by a process
that assures the requisites of an impartial
administration of justice including but not limited
to due notice and a hearing;

(d) The order or judgment complies with the laws,
ordinances and regulations of the jurisdiction from
which it was obtained; and

(e) The order or judgment does not contravene the public
policy of the State of South Dakota.

(2) If a court is satisfied that all of the foregoing conditions
exist, the court may recognize the tribal court order or
judgment in any of the following circumstances:

(a) In any child custody or domestic relations case; or

(b) In any case in which the jurisdiction issuing the
order or judgment also grants comity to orders and
judgments of the South Dakota courts; or

(c) In other cases if exceptional circumstances warrant
it; or

(d) Any order required or authorized to be recognized
pursuant to 25 USC, § 1911(d) or 25 USC, § 1919.

(Emphasis added).

[¶38.] Deann submits that she did not have an opportunity to be heard or

offer evidence before the tribal court entered its amended orders on May 11, 2007.

She contends that the amended orders were effectively a child custody

determination as to the youngest child since they provided that following the first

visitation exchange, that child was to remain with Jay.

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[¶39.] A circuit court will recognize a tribal court order under the principle of

comity. 10 First Nat’l Bank of Philip v. Temple, 2002 SD 36, ¶16, 642 NW2d 197,

203 (citing Wells, 451 NW2d at 403). However, the party seeking recognition must

first establish that the tribal court order complies with SDCL 1-1-25. Id. (citing

Mexican v. Circle Bear, 370 NW2d 737 (SD 1985)). Such recognition will be

accorded only if the statutory elements prerequisite to granting comity under SDCL

1-1-25 are established by clear and convincing evidence. Gesinger v. Gesinger, 531

NW2d 17, 19 (SD 1995) (citing One Feather v. O.S.T. Pub. Safety Com’n., 482

NW2d 48, 49 (SD 1992)).

[¶40.] From the record, it appears that the tribal court had scheduled a

hearing for May 15, 2007 to consider the status of the protection order and the

10. We have observed that the United States Supreme Court recognizes comity
as:

The extent to which the law of one nation, as put in force within its
territory, whether by executive order, by legislative act, or by judicial
decree, shall be allowed to operate within the dominion of another
nation, depends upon what our greatest jurists have been content to
call ‘the comity of nations.’ Although the phrase has been often
criticized, no satisfactory substitute has been suggested.

‘Comity,’ in the legal sense, is neither a matter of absolute obligation
on the one hand, nor of mere courtesy and good will upon the other.
But it is the recognition which one nation allows within its territory to
the legislative, executive, or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of
its own citizens or of other persons who are under the protection of its
laws.

Kwongyuen Hangkee Co. v. Starr Fireworks, 2001 SD 113, ¶8, 634 NW2d 95,
96 (quoting Hilton v. Guyot, 159 US 113, 163-64, 16 SCt 139, 143, 40 LEd 95
(1895)).

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order for interim relief issued on May 2, 2007. The record reveals that legal counsel

for Deann and Jay exchanged several e-mails wherein Deann’s legal counsel

attempted to arrange a continuance of the May 15 hearing. The record is unclear as

to whether the tribal court conducted a hearing on May 15, and there is no

transcript in the record of any other hearing addressing the status of the orders

after May 2, 2007. See In re J.D.M.C., 2007 SD 97, ¶40, 739 NW2d 796, 808-09

(where the circuit court’s findings of fact failed to address a material issue at the

trial in which an Indian tribe was seeking recognition of a tribal court order,

holding that when the tribal court issued a memorandum opinion, but the record

included no transcript of its proceedings, there was no way to determine on appeal

whether the matter before the tribal court had been “fully and fairly litigated”).

However, Jay’s petition for recognition reveals that on May 11, 2007, his legal

counsel had a conference with the tribal court in which legal counsel informed the

tribal court that Deann had not complied with the original visitation schedule.

According to the petition, the tribal court then signed the orders as amended and

they were entered on May 11, 2007.

[¶41.] The language of SDCL 1-1-25(1) unambiguously sets out that among

other conditions for recognition of a tribal court order, the party seeking recognition

must establish by “clear and convincing evidence” that “[t]he order or judgment was

obtained by a process that assures the requisites of an impartial administration of

justice[.]” In this case, the complete record of the tribal court proceeding is lacking.

Moreover, Deann alleges that in contravention of South Dakota public policy she

was not accorded due process by the tribal court and that Jay’s petition for

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recognition indicates there was an ex parte communication between his legal

counsel and the tribal court that precipitated the May 11, 2007 amended orders.

We conclude that under these circumstances the Legislature, when it enacted SDCL

1-1-25, intended the circuit court to enter findings of fact and conclusions of law for

appellate review, before granting recognition to a tribal court order under the

principle of comity. See J.D.M.C , 2007 SD 97, ¶49, 739 NW2d at 813. Accordingly,

on this issue, we remand to the circuit court for appropriate evidentiary proceedings

along with findings of fact and conclusions of law. 11

[¶42.] Affirm in part, reverse in part, and reverse and remand in part.

[¶43.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices,

concur.

11. Deann also argues in the alternative that if this Court were to conclude that
the statutory elements prerequisite to recognition under SDCL 1-1-25(1) had
been established by clear and convincing evidence, the tribal court orders
would still not be entitled to comity under SDCL 1-1-25(2)(b), because she
alleges that the LBST refused to serve Jay with the circuit court’s temporary
protection order. We need not address that argument under the
circumstances of our holding, as it is not necessary given the unambiguous
language of SDCL 1-1-25(2)(a).

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