author: Maxa, C.J.

text:
    Marta M.K. FOWLER, Respondent, v. James A.L. FOWLER, Appellant.
    No. 51247-5-II
    Court of Appeals of Washington, Division 2.
    Filed February 13, 2019 Publication Ordered April 23, 2019
    Margaret H. Brost, Attorney at Law, 1800 Cooper Point Rd. Sw Ste. 18, Olympia, WA, 98502-1179, for Appellant.
    Patricia S. Novotny, Nancy Catalina Zaragoza, Zaragoza Novotny PLLC, 3418 Ne 65th St. Ste. A, Seattle, WA, 98115-7397, for Respondent.
   Maxa, C.J.

¶1 James Fowler appeals the trial court's denial of his motion to terminate the permanent protection order his former wife Marta Fowler obtained against him in 2003.

¶2 RCW 26.50.130(1) authorizes a trial court to terminate an existing permanent protection order in certain situations. RCW 26.50.130(3)(a) states that the court may not terminate a permanent protection order "unless the respondent proves by a preponderance of the evidence that there has been a substantial change in circumstances such that the respondent is not likely to resume acts of domestic violence against the petitioner ... if the order is terminated." RCW 26.50.130(3)(c) provides an unweighted list of nine factors the court may consider in determining whether there has been a substantial change in circumstances.

¶3 We hold that (1) the trial court did not abuse its discretion in determining based on the RCW 26.50.130(3)(c) factors that James had not proved a substantial change in circumstances such that he was unlikely to resume acts of domestic violence, and (2) the court did not err in considering two nonstatutory factors that James claims were irrelevant.

¶4 Accordingly, we affirm the trial court's order denying James's motion to terminate the permanent protection order. However, we decline to award Marta attorney fees on appeal under RCW 26.50.130(6).

FACTS

¶5 In December 1996, James assaulted his then wife Marta in their home when their children were six and three years old. Marta obtained a one-year protection order and filed for legal separation. Following this incident, James received domestic violence treatment and counseling. He also began taking medication for mental health issues. The parties' marriage was dissolved in 1999. The dissolution decree restrained both James and Marta from going to each other's homes or work places.

¶6 James met his current wife in 1998. They have been in a stable relationship since that time.

¶7 In November 2002, Marta sought a protection order against James on behalf of herself and their two minor children. Marta alleged in her petition that James had acted angrily and aggressively toward their then 12-year-old son and his friends while the boys were staying at James's residence for a sleepover. James denied these allegations and claimed that, while he was upset with the boys for misbehaving, his behavior toward them was not abusive. The court entered an ex parte domestic violence order of protection, clarifying that James was allowed to attend the children's public events and that he could have visitation with the children on Thanksgiving Day if the parties' son was willing.

¶8 In July 2003, Marta requested the entry of a permanent restraining order against James. Her declaration alleged that James had continued to stalk and harass her, noted the fact that James had recently purchased a home half a mile away from hers, and referenced James's mental illness diagnosis. In August, the parties reached an agreed domestic violence order of protection. This order covered both Marta and the two minor children and prohibited James from coming within 1,500 feet of their residence, workplace, or school. The order permanently restrained James from coming near or having any contact with Marta.

¶9 In February 2006, James came to their son's school, which was a violation of the 2003 permanent protection order. He explained that he had gone to pick up his son, who was ill, because Marta was out of town. James was charged with violation of the protection order, but the charges later were dropped. The permanent protection order then was amended to allow James to go to their son's school and to pick up their son from school if Marta was unavailable. In February 2007, the trial court modified the permanent protection order regarding the children, leaving the order in effect for Marta only.

¶10 In June 2017, the parties agreed to modify the permanent protection order again to allow James to attend college graduation ceremonies for the parties' daughter, which Marta also was attending. Later in June, James moved for termination of the 2003 permanent protection order. He argued that in the 14 years since entry of the order, the parties had continued to live less than a mile from each other without incident, their children were now both adults, and that he was happily remarried without any criminal convictions or substance abuse issues. He claimed that Marta had shown in several ways that she was not fearful of him. He asked the court to consider that there will be future events involving the children and memorial services for mutual friends that both he and Marta would want to attend. James clarified that he was not seeking to terminate the restraining order in the dissolution decree.

¶11 Marta opposed termination of the permanent protection order, filing a declaration describing the 1996 assault and stating that James had persisted in attempting to communicate with her over the years despite the protection order. She stated, "I am fully convinced that without this permanent protection order, the respondent would appear on my doorstep uninvited, look through my windows, or find other excuses to speak with me when he sees me around the neighborhood." Clerk's Papers (CP) at 195. Marta also submitted declarations from two friends, one of which stated that James's attempt to terminate the protection order had left Marta rattled. And Marta submitted a copy of a letter that a mutual neighbor had written to her in 2014 suggesting that the protection order should be terminated.

¶12 A hearing on James's motion was held in July 2017 before a superior court commissioner. The commissioner entered an order denying James's motion to terminate the protection order. The commissioner concluded that James had not met his burden of showing that there had been a substantial change in circumstances such that he was not likely to resume acts of domestic violence against Marta.

¶13 James filed a motion to revise the commissioner's order. A hearing on this motion was held before the trial court. James argued that he had taken complete responsibility for the 1996 domestic violence incident and had obtained treatment for his bipolar disorder as well as domestic violence treatment. He argued that the surviving mutual protection order in the decree of dissolution would amply protect Marta if the permanent protection order was terminated. Marta countered that no documentation existed to prove James had completed state-certified domestic violence treatment since the permanent protection order was entered. She argued that James had not taken responsibility for the domestic violence because he blamed her for the incidents in their history, suggested that her anger was her only reason for resisting termination of the order, and that James appeared to be eager to reenter her life.

¶14 The trial court denied James's motion to revise the commissioner's order. The court considered all the RCW 26.50.130(3)(c) factors and made findings of fact regarding each factor. The court also found that Marta had a "current, real and genuine fear of imminent physical harm" by James. CP at 178. And the court found that James's reasons for wanting to terminate the protection order were not sufficient. The court concluded that James had not proved that there had been a substantial change in circumstances such that he was not likely to resume acts of domestic violence against Marta if the order was terminated.

¶15 However, the trial court on its own motion determined that a modification of the permanent protection order was appropriate. The court struck the provision "If both parties are at the same location, respondent shall leave" and added "If both parties happen to be at the same event or function at a location not specifically identified in this order, the respondent is not required to leave[.]" CP at 178 (alteration in original). The court then entered a modified protection order.

¶16 James appeals the trial court's denial of his motion to terminate the permanent protection order.

ANALYSIS

A. TERMINATION OF PERMANENT PROTECTION ORDERS

¶17 The legislature has expressed a clear public policy to protect domestic violence victims. In re Marriage of Freeman , 169 Wash.2d 664, 671, 239 P.3d 557 (2010) ; see chapter 26.50 RCW. Under former RCW 26.50.060(1)(h) (2010), a court has authority to enter a protection order restraining a respondent from having any contact with a domestic violence victim. Such a protection order can be made permanent where "the court finds that the respondent is likely to resume acts of domestic violence against the petitioner or the petitioner's ... minor children when the order expires." Former RCW 26.50.060(2).

¶18 Under RCW 26.50.130(1), the trial court may modify the terms or terminate an existing permanent protection order. RCW 26.50.130(3)(a) states that the court may not terminate a permanent protection order on the respondent's motion unless he or she "proves by a preponderance of the evidence that there has been a substantial change in circumstances such that the respondent is not likely to resume acts of domestic violence against the petitioner ... if the order is terminated." In response to the motion, the protected party is not required to establish "that he or she has a current reasonable fear of imminent harm by the respondent." RCW 26.50.130(3)(a).

¶19 For purposes of determining whether there has been a "substantial change in circumstances," the trial court must consider "only factors which address whether the respondent is likely to commit future acts of domestic violence against the petitioner." RCW 26.50.130(3)(b). The trial court may consider, in no particular order of importance, these unweighted factors:

(i) Whether the respondent has committed or threatened domestic violence, sexual assault, stalking, or other violent acts since the protection order was entered;
(ii) Whether the respondent has violated the terms of the protection order, and the time that has passed since the entry of the order;
(iii) Whether the respondent has exhibited suicidal ideation or attempts since the protection order was entered;
(iv) Whether the respondent has been convicted of criminal activity since the protection order was entered;
(v) Whether the respondent has either acknowledged responsibility for the acts of domestic violence that resulted in entry of the protection order or successfully completed domestic violence perpetrator treatment or counseling since the protection order was entered;
(vi) Whether the respondent has a continuing involvement with drug or alcohol abuse, if such abuse was a factor in the protection order;
(vii) Whether the petitioner consents to terminating the protection order, provided that consent is given voluntarily and knowingly;
(viii) Whether the respondent or petitioner has relocated to an area more distant from the other party, giving due consideration to the fact that acts of domestic violence may be committed from any distance;
(ix) Other factors relating to a substantial change in circumstances.

RCW 26.50.130(3)(c).

¶20 The trial court may not base its determination solely on the passage of time without a violation of the permanent protection order or the fact that one of the parties has relocated to an area more distant from the other. RCW 26.50.130(3)(d).

¶21 Finally, the court may decline to terminate a protection order even if there has been a substantial change in circumstances if the court "finds that the acts of domestic violence that resulted in the issuance of the protection order were of such severity that the order should not be terminated." RCW 26.50.130(3)(e).

¶22 RCW 26.50.130(1) states that a court "may" terminate a protection order. Therefore, whether to terminate a permanent protection order is a matter of judicial discretion. Freeman , 169 Wash.2d at 671, 239 P.3d 557. We review for an abuse of discretion a trial court's order regarding termination of a permanent protection order. See id. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Id.

¶23 James does not challenge any of the trial court's findings of fact. Therefore, those findings are verities on appeal. In re Marriage of Fiorito , 112 Wash. App. 657, 665, 50 P.3d 298 (2002).

B. SUBSTANTIAL CHANGE IN CIRCUMSTANCES

¶24 James argues that consideration of the RCW 26.50.130(3)(c) factors demonstrates a substantial change in circumstances such that he no longer poses a threat of committing domestic violence against Marta, and that the trial court abused its discretion by finding otherwise. We disagree.

1. Analysis of RCW 26.50.130(3)(c) Factors

¶25 The trial court found that a number of the RCW 26.50.130(3)(c) factors were not at issue in this case: no acts or threats of domestic violence or sexual assault, no suicidal ideation, no criminal convictions, and no continuing issues with drugs or alcohol since entry of the permanent protection order. However, James challenges the trial court's consideration of the other factors.

a. Violation of the Permanent Protection Order and Passage of Time

¶26 RCW 26.50.130(3)(c)(ii) relates to violations of the permanent protection order and the passage of time. The trial court found that James "violated the terms of the protection order in February of 2006." CP at 177.

¶27 James argues that the trial court improperly considered the 2006 violation of the permanent protection order as a factor weighing against termination of the order because the violation was only a technicality and the charges were dropped. Based on the trial court's oral findings of fact, it does not appear that great weight was attributed to this factor. However, the court was within its discretion to consider this violation under RCW 26.50.130(3)(c)(ii).

b. Acknowledging Responsibility and Domestic Violence Treatment

¶28 RCW 26.50.130(3)(c)(v) relates to acknowledging responsibility for the domestic violence and domestic violence treatment. The trial court found that James eventually took responsibility but that he had "not completed domestic violence perpetrator treatment or counseling since the [permanent protection order] was entered." CP at 177.

¶29 James argues that his acknowledgment of his fault for the 1996 domestic violence should have weighed in favor of finding he was not likely to resume acts of domestic violence against Marta. But there is no indication that the trial court failed to consider this fact.

¶30 James also argues that his domestic violence treatment following the 1996 incident should have weighed in his favor. Although James presented evidence to indicate that he had undergone some psychotherapy in the past, the letter he provided from his former psychiatrist did not specify the dates of treatment or the issues discussed. He also notes that the permanent protection order did not expressly require him to seek out domestic violence treatment, and so the lack of records showing that he had undergone this treatment since the order's entry in 2003 should not weigh against him.

¶31 However, RCW 26.50.130(3)(c)(v) provides that the court may consider whether the respondent has "successfully completed domestic violence perpetrator treatment or counseling since the protection order was entered." The statute does not state that the protection order must require the respondent to obtain treatment for the factor to be considered. Here, the court considered the evidence and concluded it was insufficient to find James had completed treatment since the 2003 permanent protection order was entered. The court was within its discretion to consider this fact.

c. Marta's Lack of Consent to Terminate the Order

¶32 RCW 26.50.130(3)(c)(vii) relates to the petitioner's consent. The trial court found that "[Marta] does not consent to terminating the [permanent protection order]." CP at 177.

¶33 James argues that Marta's lack of consent to terminate the order is relevant only to the extent that it relates to his likelihood to engage in future acts of domestic violence. He claims that her lack of consent does not reflect a risk of recidivism.

¶34 The trial court considered this factor briefly in its oral ruling at the hearing but does not appear to have placed great weight on it. Under RCW 26.50.130(3)(c)(vii), the trial court may consider "[w]hether the petitioner consents to terminating the protection order." Although the statute requires the trial court to determine whether the petitioner's consent "is given voluntarily and knowingly," it does not require the court to determine whether the petitioner's lack of consent is reasonable or justified. RCW 26.50.130(3)(c)(vii).

¶35 Even so, Marta presented a number of reasons why she was unwilling to consent to termination of the permanent protection order. She cited the parties' contentious divorce, the 2002 incident at their son's sleepover, James's 2003 move into her neighborhood, the 2014 letter from a neighbor asking her to drop the protection order against James, James's initial reluctance to accept full responsibility for the domestic violence in their past, and the lack of clear records indicating James had undergone domestic violence treatment. These reasons gave the trial court ample evidence to consider whether her lack of consent to terminate the order was significant to its analysis. The court was within its discretion to consider Marta's lack of consent.

d. Living Proximity

¶36 RCW 26.50.130(3)(c)(viii) relates to whether one party has relocated to an area more distant from the other party. The trial court found that James "has not relocated to an area more distant from [Marta] ... [James] bought a home which is very close in proximity to [Marta's] home." CP at 177.

¶37 James argues that the trial court should have considered his decision in 2003 to purchase a home in Marta's neighborhood as a point in favor of terminating the permanent protection order rather than a reason to keep it in place. He contends that because the parties have lived in the same neighborhood for many years without incident, this factor weighs against the likelihood of recidivism.

¶38 Marta argued at the hearing that James was "right down the road ... [t]he proximity is incredibly close. There's still ongoing contact, at least indirectly." Report of Proceedings (RP) (Aug. 11, 2017) at 14-15. She argued that a neighbor's letter asking her to drop the permanent protection order against James so he could attend functions at the neighbor's home had caused her to be concerned about James's influence in the neighborhood. The trial court did not abuse its discretion in finding that James's close proximity to Marta weighed against finding that he was less likely to resume acts of domestic violence against her.

2. Other Factors Relating to Change in Circumstances

¶39 Under RCW 26.50.130(3)(c)(ix), the trial court has discretion to consider "[o]ther factors relating to a substantial change in circumstances" in determining whether to terminate or modify a permanent protection order. In evaluating whether a "substantial change in circumstances" exists, the court is limited to considering "factors which address whether the respondent is likely to commit future acts of domestic violence against the petitioner or those persons protected by the protection order." RCW 26.50.130(3)(b).

a. James's Mental Health and Current Relationship

¶40 The trial court found that James had sustained a long-term, healthy relationship with his current wife and had maintained his mental health condition and medication since entry of the permanent protection order. James argues that the court abused its discretion by not finding that these factors demonstrated a substantial change worthy of terminating the permanent protection order. Marta argues that the trial court was within its discretion to find these factors did not rise to the level of terminating the order.

¶41 The trial court properly considered these factors under RCW 26.50.130(3)(c)(ix). However, RCW 26.50.130(c) expressly provides that "[i]n determining whether there has been a substantial change in circumstances the court may consider the following unweighted factors, and no inference is to be drawn from the order in which the factors are listed ." (Emphasis added). James's argument suggests that the trial court should have weighted these factors in his favor more heavily than those factors it found against him. The statute contains no such requirement. Therefore the trial court did not err in assigning its own weight to the factors it considered under RCW 26.50.130(3)(c).

b. James's Agreement to Enter the Permanent Protection Order

¶42 The trial court stated during its oral findings that

[w]hat I gave the greatest weight to in considering this [motion] ... [was that] [t]he order was entered by an agreement. And in 2003, perhaps the parties couldn't anticipate what a permanent order means ... it's permanent for the life of the person who is protected. But they did agree to that. And they didn't have to agree to that.

RP (Aug. 11, 2017) at 23.

¶43 Marta argues that the trial court found it especially significant that James agreed in 2003 to make the protection order permanent, because James could have argued at that time that a shorter duration was more appropriate. James responds that the court improperly considered his agreement to enter the permanent protection order as a factor weighing against termination, and that his willingness to cooperate with Marta is not the behavior of someone likely to reoffend.

¶44 Although James's interpretation of the events of 2003 may be a reasonable one, the trial court found otherwise. The court apparently believed that the parties' agreement reflected an acknowledgement that there was a likelihood that James might resume acts of domestic violence in the future if the protection order was not in place. The trial court has discretion to consider various factors, and the court did not abuse its discretion in finding that James's consent to entry of the permanent protection order in 2003 weighed against terminating the order now.

c. Unaddressed Other Factors

¶45 James argues that the trial court failed to recognize three additional factors that supported termination of the permanent protection order: (1) that he and Marta jointly raised their children without threats or violence, (2) the likelihood that future contact between them will be limited now that their children are adults, and (3) the mutual restraints in the 1999 dissolution decree.

¶46 Although these factors may very well be relevant here, under RCW 26.50.130(3)(c) the trial court retains discretion in its analysis and weighing of the factors. The statute does not require the court to consider every potential factor put forward by the parties. Therefore, the trial court did not abuse its discretion in declining to consider these factors.

3. Summary

¶47 In summary, James fails to establish that the trial court abused its discretion in finding that the evidence presented under the RCW 26.50.130(3)(c) factors did not give rise to a substantial change in circumstances such that he was unlikely to commit future acts of domestic violence against Marta. The trial court identified and analyzed evidence for each factor under the statute, and the statute did not require that the trial court weigh any particular factor more heavily than the others. The court also properly considered other factors under RCW 26.50.130(3)(c)(ix).

C. CONSIDERATION OF ALLEGEDLY IRRELEVANT FACTORS

¶48 James argues that the trial court abused its discretion in considering two factors that he claims are not relevant to whether there is a likelihood that he will engage in future acts of domestic violence: (1) Marta's fear of him and (2) the reasons he sought termination of the permanent protection order. We disagree.

1. Current and Reasonable Fear

¶49 James argues that the trial court erred in considering the fact that, as the court found, Marta "has a current, real, and genuine fear of imminent physical harm." CP at 178. He emphasizes that the protected party's fear of the restrained party is no longer part of the legal standard under RCW 26.50.130(3).

¶50 In Freeman , our Supreme Court held that "[w]hile [the restrained party] bears the burden of proving by a preponderance of the evidence that he will not commit future acts of domestic violence, the facts must also support a finding that [the protected party's] current fear of imminent harm is reasonable." 169 Wash.2d at 674, 239 P.3d 557. However, after this case, the legislature subsequently found that "some of the factors articulated in ... Freeman ... for terminating or modifying domestic violence protection orders do not demonstrate that a restrained person is unlikely to resume acts of domestic violence when the order expires, and place an improper burden on the person protected by the order." LAWS OF 2011, ch. 137, § 1. RCW 26.50.130(3)(a) now provides that the protected party is not required to establish "that he or she has a current reasonable fear of imminent harm by the respondent."

¶51 But James expressly argued at the motion to revise hearing that "this court must find objective fear, based on a reasonable person, and it must be a current fear." RP (Aug. 11, 2017) at 9. The trial court then questioned James's counsel as to whether this finding was really necessary after the legislature's post- Freeman revisions to RCW 26.50.130, concluding "I don't believe that I actually get to the issue of current reasonable fear." RP (Aug. 11, 2017) at 10. James's counsel replied "I think you do. The only difference is that my client has the burden of proving it ... [b]ut to suggest that you don't have to look at whether or not her fear is reasonable I think goes too far." RP (Aug. 11, 2017) at 10.

¶52 James now claims that the trial court used subjective fear as a primary basis for denying his motion and that such fear cannot be used to determine his likelihood of recidivism. The court did make a finding that Marta had a genuine fear that James would harm her, and the court mentioned that fear in its oral ruling. RP (Aug. 11, 2017) at 24. But the court merely was responding to James's own argument that fear was relevant. Under these circumstances, we hold that the trial court did not abuse its discretion in addressing Marta's fear.

2. James's Reasons for Seeking Termination of the Order

¶53 James argues that the trial court improperly required him to prove he had sufficient need to terminate the order. He claims that under RCW 26.50.130(3), the court cannot consider whether James's reasons for wanting the order removed are important enough because those reasons have no bearing on whether James is likely to commit future domestic violence against Marta. Marta argues that any finding by the trial court on this factor was invited error because James himself raised these outside considerations.

¶54 The trial court addressed three reasons James provided for terminating the permanent protection order: (1) being stopped or questioned about the order at the airport, (2) James's desire to go to the house of a friend who lived near Marta, and (3) concerns about future events that both he and Marta would want to attend. The court found that these were not sufficient reasons for terminating the protection order.

¶55 James is correct in asserting that, for purposes of determining whether there has been a "substantial change in circumstances," the trial court must consider "only factors which address whether the respondent is likely to commit future acts of domestic violence against the petitioner." RCW 26.50.130(3)(b) (emphasis added). Arguably, James's reasons for wanting to terminate the protection order are unrelated to his likelihood of committing future acts of domestic violence against Marta.

¶56 However, James himself argued at both hearings that these considerations merited termination of the permanent protection order. "Under the invited error doctrine, a party may not set up an error at trial and then complain of it on appeal. The doctrine applies when a party takes affirmative and voluntary action that induces the trial court to take an action that party later challenges on appeal." Grange Ins. Ass'n v. Roberts , 179 Wash. App. 739, 774, 320 P.3d 77 (2013) (internal citation omitted).

¶57 Because James requested that the trial court consider these additional factors, he cannot now complain on appeal that the court took them into consideration. Under these circumstances, we hold that the trial court did not abuse its discretion in addressing James's reasons for seeking termination of the protection order.

D. ATTORNEY FEES ON APPEAL

¶58 Marta asks this court to award her reasonable attorney fees pursuant to RCW 26.50.130(6), which provides for the award of costs and attorney fees incurred by a protected party "in responding to a motion to terminate or modify a protection order." We decline to award Marta attorney fees.

¶59 The award of attorney fees under RCW 26.50.130 is discretionary. Freeman , 169 Wash.2d at 677, 239 P.3d 557. In this appeal, James provided a robust record, made several claims of error to the trial court's findings with rigorous briefing, and relied on accurate and up-to-date statutory and case law. His appeal appears to be a sincere and good faith challenge to the trial court's findings. Accordingly, we decline to exercise our discretion to award Marta attorney fees on appeal.

CONCLUSION

¶60 We affirm the trial court's order denying James's motion to terminate the permanent protection order, but we decline to award Marta her attorney fees on appeal.

We concur:

LEE, J.

MELNICK, J.

      We use the parties' first names for clarity. No offense is intended.

      James does not actually assign error to the trial court's analysis of the RCW 26.50.130(3)(c) factors. However, because he presents extensive argument regarding this issue, we will consider it. See Union Elevator & Warehouse Co. v. State , 144 Wash. App. 593, 601, 183 P.3d 1097 (2008).

      James also asks us under RAP 9.6 to supplement the appellate record with a transcript from a January 1997 hearing where the court ordered James to participate in domestic violence treatment with a counselor the parties were already seeing. However, because this order occurred before the entry of the 2003 permanent protection order and because the transcript does not establish that James actually received such domestic violence counseling, we deny the request to supplement.


source: Caselaw Access Project

author: Mann, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Derwin ROBINSON, Appellant.
    No. 76648-1-I
    Court of Appeals of Washington, Division 1.
    FILED: April 22, 2019
    Nancy P. Collins, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant.
    Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Dennis John Mccurdy, King County Prosecutor's Office, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, for Respondent.
    PUBLISHED OPINION
   Mann, J.

In a prosecution where predicate convictions are an essential element of the crime, the State is required to prove the previous convictions are valid and constitutional beyond a reasonable doubt. Derwin Robinson appeals his 2016 felony conviction of violating a no-contact order. Robinson's felony conviction was predicated on Robinson's plea to two 2015 misdemeanor violations of a no-contact order based on Robinson's single act of assaulting his wife. It is undisputed that one of Robinson's 2015 convictions was based on a criminal act. It is also undisputed that the second conviction was based entirely on fiction-purportedly relying on State v. Zhao, 157 Wash.2d 188, 190, 137 P.3d 835 (2006).

Robinson argues that because the two 2015 convictions were based on a single criminal act, the second, fictitious conviction violates double jeopardy and the State failed to demonstrate two valid and constitutional predicate prior convictions. We agree with Robinson. We hold that Zhao does not provide a basis to avoid double jeopardy and convict a person for two crimes based on one criminal act. Accordingly, we reverse.

I.

On October 22, 2015, Ericka Robinson called 911 to report that Robinson, her then spouse, assaulted her. Officers responded and determined that an existing no-contact order prohibited Robinson from assaulting, harassing, or threatening bodily harm to Ericka. The no-contact order did allow in-person contact between the two, but did not allow the two to reside together. According to the determination for certification of probable cause:

Ericka stated that she and [Robinson] were at a neighboring apartment when they began to argue about a bank card and something spilling in her vehicle. Ericka ran from [Robinson] as he chased her through the apartment, trying to avoid being assaulted. [Robinson] caught up to Ericka as she neared the door to the apartment. [Robinson] pushed her and she fell out the door onto the concrete patio. When Ericka fell, she landed on her left hip, causing an abrasion and friction burns to her hip.

The following day, Ericka's father called 911 to report that he believed Robinson was back in Ericka's home. There is no indication that Ericka was home, or that a further violation of the no-contact order occurred. Officers went to the location, found Robinson inside, and arrested him.

While the 2015 information is not before us, it appears that Robinson was charged with one count of felony violation of a court order predicated on the assault. RCW 26.50.110(4). Robinson has a substantial prior criminal history and faced a long sentence for a felony conviction. Prior to trial, Robinson negotiated a settlement pleading guilty to two misdemeanor violations of a court order, in lieu of being found guilty or pleading guilty to the felony violation.

For one of the misdemeanor convictions, Robinson admitted that he willfully violated the no-contact order. The plea for the second misdemeanor was purportedly entered under Zhao and In re Barr, 102 Wash.2d 265, 684 P.2d 712 (1984). Robinson admitted that there was no factual basis for the plea. Robinson's understanding was memorialized in his plea statement:

I am pleading guilty to two counts misdemeanor Domestic Violence Violation of a Court Order. Further, I have been advised by my attorney that this plea is legal and permissible pursuant to [ Zhao ] (factual basis for pleading guilty to amended charges was not required where there existed a factual basis supporting the original charges) and [ Barr ] ("A plea does not become invalid because an accused chooses to plead to a related lesser charge that was not committed in order to avoid certain conviction for a greater offense. The trial court must find a factual basis to support the original charge, and determine that defendant understands the relationship of his conduct to that charge. Defendant must be aware that the evidence available to the State on the original offense is sufficient to convince a jury of his guilt.") Pursuant [ Zhao ] and [ Barr ], on or about 10/22/15, in King County, WA, I did know of and willfully violate the terms of a court order issued on 9/15/15 by the King County Superior Court pursuant to RCW chapter 10.99 for the protection of Ericka Sanders-Robinson, my wife and mother of my child, in violation of the conditions listed in that order.

After a subsequent incident between Robinson and Ericka in October 2016, the State charged Robinson with one count of felony violation of a no-contact order under two theories: (1) that Robinson's conduct during the no-contact violation was an assault under RCW 26.50.110(4) or (2) that Robinson's two prior misdemeanor convictions for violating a no-contact order elevated the crime to a felony under RCW 26.50.110(5). After the State agreed not to proceed on the assault theory and pursue only the two prior misdemeanors theory, the parties stipulated to a bench trial.

By pretrial motion, Robinson asked the trial court to preclude the two prior 2015 misdemeanor convictions as predicate convictions supporting the felony charge under RCW 26.50.110(5). Robinson argued that his two misdemeanor convictions were insufficient predicate convictions to elevate the current charge to a felony no-contact violation under the statute because there was only one factual basis to support the two charges.

The trial court denied Robinson's motion to exclude the predicate conviction. The court held that RCW 26.50.110 did not preclude predicate convictions based on a Zhao plea. After reviewing Robinson's plea statement from the 2015 convictions, the trial court found:

Although oddly written, the parties agree that the above statement constituted a "straight plea," of guilty to one count of Domestic Violence Misdemeanor Violation of Court Order, and a Zhao plea of guilty as to the second count. The parties further agree that there is no factual basis to support a second conviction for Domestic Violence Misdemeanor Violation of a Court Order.

Following a stipulated bench trial, Robinson was found guilty of felony violation of a court order-domestic violence.

Robinson appeals.

II.

Robinson was charged and convicted of felony violation of a no-contact order predicated on the allegation that he had "at least two prior convictions for violating the provisions of an order" issued under specific statutes. RCW 26.50.110(5). In a prosecution where predicate convictions are an essential element of the crime, such as in the case of RCW 26.50.110(5), the State is required to prove the previous convictions beyond a reasonable doubt. State v. Carmen, 118 Wash. App. 655, 666, 77 P.3d 368 (2003). Robinson argues that the State failed to meet its burden to prove that he had two valid and constitutional prior convictions for violating a no-contact order. We agree.

Procedurally, and as a preliminary matter, the trial court determines the validity of a prior conviction for the purpose of RCW 26.50.110(5). State v. Miller, 156 Wash.2d 23, 31, 123 P.3d 827 (2005) ; Carmen, 118 Wash. App. at 665, 77 P.3d 368. As our Supreme Court has explained,

First, a defendant may raise a defense to such a prosecution by alleging the constitutional invalidity of a predicate conviction, and second, upon doing so, the State must prove beyond a reasonable doubt that the predicate conviction is constitutionally sound. In raising this defense, the defendant bears the initial burden of offering a colorable, fact-specific argument supporting the claim of constitutional error in the prior conviction. Only after the defendant has made this initial showing does the State's burden arise.

State v. Summers, 120 Wash.2d 801, 812, 846 P.2d 490 (1993). We review the validity of a predicate offense de novo. Carmen, 118 Wash. App. at 663, 77 P.3d 368.

A.

The State based its 2016 felony no-contact charge on Robinson's 2015 plea and conviction for two misdemeanor no-contact violations. The 2015 plea and convictions, however, were based on an erroneous application of Zhao. Zhao allows a defendant to plead guilty to an amended charge for which there is no factual basis, so long as there is a factual basis for the original charge. Zhao, 157 Wash.2d at 200, 137 P.3d 835. Zhao does not, however, allow a defendant to be convicted of two separate crimes based on one criminal act and one original charge.

The defendant in Zhao was originally charged with two counts of first degree child molestation based on two separate incidences involving two separate children in a restroom at the restaurant where Zhao worked. Zhao, 157 Wash.2d at 191, 137 P.3d 835. The State offered to amend the charges to two counts of conspiracy to commit indecent liberties and one count of second degree assault. In order to avoid a possible indeterminate sentence, Zhao entered an Alford plea of guilty to the amended charges, despite no factual basis supporting the conspiracy element because Zhao acted alone. Zhao, 157 Wash.2d at 191, 137 P.3d 835.

Zhao subsequently moved to withdraw his plea arguing that he did not expressly confirm that he understood that he was pleading guilty to charges for which there was no factual basis. The trial court denied Zhao's request to withdraw his plea. Zhao, 157 Wash.2d at 196, 137 P.3d 835. On appeal, the Supreme Court first addressed whether a trial court has authority to accept a plea where "where there is no factual basis for the ultimate charges." Zhao, 157 Wash.2d at 198, 137 P.3d 835. After considering the CrR 4.2(d) requirement that the trial court must find a factual basis for a plea of guilty, the Court held that a defendant can plead guilty to an amended charge with no factual basis so long as there was a factual basis for the original charge.

Since the factual basis requirement, both in case law and in this court's rule is founded on the concept of voluntariness, we hold that a defendant can plead guilty to amended charges for which there is no factual basis, but only if the record establishes that the defendant did so knowingly and voluntarily and that there at least exists a factual basis for the original charge, thereby establishing a factual basis for the plea as a whole. Doing so supports a flexible plea bargaining system through which a defendant can choose to plead guilty to a related charge that was not committed, in order to avoid near certain conviction for a greater offense.

Zhao, 157 Wash.2d at 200, 137 P.3d 835.

Critical to our analysis here, however, is that Zhao was originally charged with two counts of first degree child molestation, each supported by a distinct criminal act or factual basis. Zhao then pleaded to two lesser counts of conspiracy to commit indecent liberties-acts that were not supported by a factual basis because there was no evidence of a conspiracy. The Supreme Court affirmed the trial court's decision to deny Zhao's motion to withdraw his plea because, while the two amended charges were not supported by a factual basis, there was a factual basis for each of the two originally charged crimes.

In contrast, Robinson was originally charged with one act of felony violation of a no-contact order predicated on an assault. The charge was based on one criminal act-the October 22, 2015 contact and assault. There was a factual basis to support only one original charge. Robinson pleaded to and was convicted of, however, two counts of misdemeanor violation of a no-contact order. It is undisputed that there is no factual basis for a second charge. Both the State and trial court misapplied Zhao in determining that Zhao allows a defendant to plead guilty to two criminal charges based solely on a single criminal act.

B.

Because there was only one criminal act supporting Robinson's 2015 conviction, Robinson argues that his two 2015 convictions are not constitutionally valid because they violate the double jeopardy clause. We agree.

The double jeopardy clause of the U.S. Constitution provides that no individual shall "be twice put in jeopardy of life or limb" for the same offense, and the Washington Constitution provides that no individual "be twice put in jeopardy for the same offense." U.S. CONST. Amend. V ; CONST. Art. I, § 9. The Fifth Amendment's double jeopardy protection "is applicable to the States through the Fourteenth Amendment." Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy provisions of the state and federal constitutions protect against (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) ; State v. Gocken, 127 Wash.2d 95, 107, 896 P.2d 1267 (1995).

When a person is charged with multiple counts of the same offense, "each count must be based on a separate and distinct criminal act." State v. Mutch, 171 Wash.2d 646, 662, 254 P.3d 803 (2011). While the reviewing court looks to the entire record, review is "rigorous and among the strictest" to protect against double jeopardy. It must be "manifestly apparent" from the record, testimony, and argument that the two identical charges are based on separate acts. Mutch, 171 Wash.2d at 664, 254 P.3d 803.

Here, it is undisputed that Robinson's two 2015 convictions for misdemeanor violation of a no-contact order are based on one act. The determination for certificate of probable cause describes only a single act-the October 22, 2015 assault of Ericka. There is no evidence of a second and distinct criminal act supporting Robinson's second conviction. Consequently, Robinson's second 2015 conviction for violation of a no-contact order-which all parties agree was based on pure fiction-violated the double jeopardy clause and must be vacated. Mutch, 171 Wash.2d at 664, 254 P.3d 803.

C.

The State argues that by pleading guilty to the two 2015 convictions, Robinson waived his right to collaterally attack the 2015 convictions. We disagree.

"A guilty plea generally insulates the defendant's conviction from collateral attack." State v. Knight, 162 Wash.2d 806, 811, 174 P.3d 1167 (2008). There are, however, exceptions to the general rule, and particularly where "on the face of the record the court had no power to enter the conviction or impose the sentence." U.S. v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). This includes a facial violation of double jeopardy. As our Supreme Court summarized in Knight,

Claims that go to the very power of the State to bring the defendant into court to answer the charge brought against him are not waived by guilty pleas. The double jeopardy clause precludes the State from haling a defendant into court on a charge and is not waived by a guilty plea. After the guilty plea the double jeopardy violation must be clear from the record presented on appeal, or else be waived. But where a double jeopardy violation is clear from the record, a conviction violates double jeopardy even where the conviction is entered pursuant to a guilty plea.

162 Wash.2d at 811-12, 174 P.3d 1167 (internal quotations and citations omitted).

As discussed above, Robinson's 2015 convictions for violation of a no-contact order violate double jeopardy and this violation is clear from the record. The determination for certificate of probable cause describes only a single act-the October 22, 2015 assault of Ericka. Robinson's plea statement recognized only a single criminal act and a fictitious act that Robinson was informed was allowed under Zhao. And finally, the trial court found that Robinson's convictions were from a "straight plea" based on the October 22, 2014 assault, and that the "parties further agree that there is no factual basis to support a second conviction for Domestic Violence Misdemeanor Violation of a Court Order." Because the double jeopardy violation is clear from the record, Robinson did not waive his right to collaterally attack the validity 2015 convictions.

Consequently, because Robinson may collaterally attack the 2015 convictions, and because the second fictitious 2015 conviction must be vacated as violating the double jeopardy clause, we conclude that based on the record before us, the State failed to prove the existence of the two predicate misdemeanor violations of a no-contact order that supported Robinson's 2016 felony violation of a no-contact order.

We reverse.

WE CONCUR:

Chun, J.

Appelwick, C.J.

      At the time of the event, the Robinsons shared a last name. For clarity, we refer to Ericka Robinson by her first name. No disrespect is intended.

      "Any assault that is a violation of an order issued under this chapter ... and that does not amount to assault in the first or second degree ... is a class C felony." RCW 26.50.110 (4).

      "A violation of a court order issued under this chapter, chapter ... is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter." RCW 26.50.110(5) (emphasis added).

      Under an Alford plea, a defendant may take advantage of a plea agreement without acknowledging guilt. N. Carolina v. Alford, 400 U.S. 25, 36, 91 S.Ct. 160, 27 L.Ed.2d 162.

      CrR 4.2(d) provides:
      The court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea unless it is satisfied that there is a factual basis for the plea. (Emphasis added.)

      Because we reverse Robinson's conviction, we do not reach Robinson's claims that the trial court refused to consider his request for an exceptional sentence, or that the trial court improperly considered his previous assault during sentencing, and that imposition of a $ 100 fee for collection of DNA was improper under RCW 43.43.7541 and State v. Ramirez, 191 Wash.2d 732, 426 P.3d 714 (2018).


author: KAUTZ, Justice.

text:
    Steven Jacob MITCHELL, Appellant (Respondent), v. Ashley Dawn PRESTON, Appellee (Petitioner).
    S-18-0166
    Supreme Court of Wyoming.
    April 16, 2019
    Representing Appellant: Seth Shumaker, Attorney at Law, Sheridan, Wyoming.
    Representing Appellee: No appearance.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN and GRAY, JJ.
   KAUTZ, Justice.

[¶1] The district court in Sheridan County, Wyoming, granted the appellee, Ashley Dawn Preston (Mother), primary custody of the child she shares with the appellant, Steven Jacob Mitchell (Father). Father, a member of the Cheyenne River Sioux Tribe, kept the child on the reservation in South Dakota and refused to relinquish custody to Mother, who is not a member of the tribe. He unsuccessfully sought orders from the district court and the tribal court transferring jurisdiction over the custody matter to the tribal court. In October 2017, Father again moved the district court for an order relinquishing permanent child custody jurisdiction to the tribal court. Father claimed the tribal court acquired jurisdiction over the custody matter by issuing emergency child custody and/or protection orders, and the district court should, therefore, relinquish jurisdiction to make permanent custody orders to the tribal court. The district court granted Mother's motion to strike Father's motion, and Father appealed.

[¶2] We affirm.

ISSUE

[¶3] Father presents the following issue on appeal:

Whether the trial court erred in striking/denying [Father's] Motion to Transfer Venue/Motion to Establish Tribal Jurisdiction where the Northern Cheyenne River Sioux Tribal Court had issued emergency custody and placement orders concerning [the child], the Tribal Court had jurisdiction and the District Court was compelled under the Full Faith and Credit provision of 25 U.S.C. [§] 1911(d) to recognize the Tribal Court's [o]rders or establish Tribal jurisdiction in the matter.

[¶4] Mother did not appear in this appeal.

FACTS

[¶5] This case has a long and arduous course of litigation. We outlined many of the proceedings in Mitchell v. State, 2018 WY 110, ¶¶ 3-16, 426 P.3d 830, 833-35 (Wyo. 2018), where we affirmed Father's conviction and sentence for felony interference with custody. The record in this case is quite sparse, so we will refer to our earlier decision to give an adequate rendition of the proceedings.

[¶6] The parties' child was born in Montana in 2010. The State of Montana established Father's paternity and ordered him to pay child support but did not enter a custody order. The parties moved to Wyoming separately, with Mother living in Sheridan and Father living in Newcastle. They informally agreed that the child would reside with Mother and Father would be entitled to liberal visitation. Mitchell, ¶¶ 3-4, 426 P.3d at 833.

[¶7] During a visit with Father in March 2012, the child became ill because a coin was lodged in her esophagus. The coin had to be surgically removed, and Mother agreed Father could keep the child in his care until she finished her medical treatment. However, Father refused to return the child to Mother after her treatment concluded. He alleged that Mother was abusing and/or neglecting the child, and reported his suspicions, apparently prompted by the coin incident, to the Department of Family Services (DFS). DFS determined, on April 13, 2012, that Father's allegation did not "fall within the Department's guidelines ... or definitions of abuse and/or neglect," and closed the case. Despite DFS's conclusion, Father refused to return the child to Mother or to allow any contact between Mother and the child. Id., ¶ 4, 426 P.3d at 833.

[¶8] On July 1, 2013, Mother filed a petition in the Sheridan County district court to establish custody and visitation. The parties agreed to a temporary custody and visitation order, giving Father temporary custody of the child subject to Mother's visitation. Because of the child's young age and the amount of time she had been separated from Mother, the visitation schedule was graduated, starting with visitation supervised through the Court Appointed Special Advocate Program (CASA). Father, however, refused to comply with the visitation order, and, over time, Mother filed two motions for orders to show cause. The district court found Father in contempt of court each time and ordered him to comply with the visitation order and to pay Mother's attorney fees and costs. Mitchell, ¶¶ 5-7, 426 P.3d at 833-34.

[¶9] In 2014, Father moved with the child onto the Cheyenne River Indian Reservation in South Dakota. On February 25, 2014, Father filed a petition for temporary full custody of the child with the Children's Court of the Cheyenne River Sioux Tribal Court. He incorrectly alleged in his petition that legal custody of the child had not been established in the district court. After a hearing on April 22, 2014, the tribal court dismissed Father's petition for lack of jurisdiction because the custody action was pending in the Sheridan County district court and Mother was not a tribal member. Id., ¶ 15 n.5, 426 P.3d at 835 n.5.

[¶10] The district court scheduled a trial on Mother's petition to establish custody and visitation for February 6, 2015. Father's attorney provided him with the order setting the trial date by e-mail and mail. Father did not appear for the trial, the district court found him in default, and the trial proceeded as scheduled. Id., ¶¶ 8-9, 426 P.3d at 834.

[¶11] On February 23, 2015, the district court entered an order awarding primary custody of the child to Mother. The district court issued a warrant for Father's arrest for failing to comply with its orders in the custody case. In addition, the State charged him with felony interference with custody, in violation of Wyo. Stat. Ann. § 6-2-204(a)(ii), (d) and (e) (LexisNexis 2017). Mitchell, ¶¶ 9-10, 426 P.3d at 834. Father was arrested in October 2016, but he still did not return the child to Mother. Instead, the child remained on the reservation with her paternal grandmother (Grandmother). Id., ¶ 12, 426 P.3d at 835.

[¶12] Father continued his efforts to have the Wyoming district court transfer jurisdiction over the custody matter to the tribal court. Id., ¶ 12, 426 P.3d at 834-35. Father also filed motions with the tribal court, and he was successful in having the tribal court occasionally enter emergency custody and/or protection orders. Id. , ¶ 15 n.5, 426 P.3d at 835 n.5. He was not successful, however, in obtaining any tribal court order which asserted jurisdiction over the permanent custody issue between Mother and Father.

[¶13] On October 26, 2017, Father filed the motion which is at issue in this case. It was a combined motion entitled "Motion for Change of Venue/Motion to Establish Tribal Jurisdiction." The district court granted Mother's motion to strike Father's combined motion on April 23, 2018. It ruled that Father had received "ample due process," including notice and the opportunity to be heard with respect to the initial custody determination. The district court also ruled that it had "exclusive, continuing original jurisdiction to make a custody determination in this matter." Father filed a timely notice of appeal.

STANDARD OF REVIEW

[¶14] This appeal raises issues of the district court's subject matter jurisdiction and the proper application of the relevant statutes. These are questions of law subject to de novo review. See, e.g. , Harmon v. Star Valley Med. Center, 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo. 2014) (whether a court has subject matter jurisdiction is a question of law reviewed de novo. ); Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 18, 297 P.3d 768, 774 (Wyo. 2013) (the application of a statute is a question of law reviewed de novo).

DISCUSSION

[¶15] Father claims that the district court erred by striking his Motion to Establish Jurisdiction in the Tribal Court. He argues the tribal court acquired jurisdiction to determine the child's permanent custody when it issued emergency orders, and those orders are entitled to full faith and credit under the Indian Child Welfare Act, 25 U.S.C. §§ 1901, et seq. (ICWA). The four orders that he claims establish tribal court jurisdiction are: 1) a March 10, 2016 order recognizing the State of Wyoming had primary jurisdiction over the child's custody, but stating the tribal court could exercise temporary emergency jurisdiction over the child pursuant to the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(c)(2)(C) ; 2) a June 20, 2016 restraining order prohibiting Mother from contacting Father, going to his residence, or harassing him; 3) a November 3, 2016 order granting Father and Grandmother temporary custody under the PKPA so they could seek counseling for the child; and 4) a July 31, 2017 order dismissing Grandmother's motion for custody of the child and for a protection order to prevent Mother from contacting the child. Father also claims the district court should have given full faith and credit to a notice from the Tribal Chairman placing the child under the permanent protection of the tribe, as a ward of the tribe, in the care of Grandmother. The Tribal Chairman directed all tribal departments and agencies to protect the sanctity of Lakota families until the custody issue was resolved in tribal court.

[¶16] Before we address Father's arguments, we are compelled to note that Father presented an incomplete and inaccurate recitation of the proceedings from the tribal court. This is particularly troubling because Mother did not make an appearance in this appeal and, therefore, did not designate the parts of the record that would support an affirmance of the district court's decision. We are aware, from the record we reviewed in Mitchell v. State, supra, that the tribal court issued an order on May 29, 2017, dismissing the custody case with prejudice for lack of jurisdiction and directing Father not to file any additional petitions with the tribal court "unless there is a substantial change of circumstances." The May 29, 2017 order has the same case number as the November 3, 2016 temporary custody order.

[¶17] We described the tribal court proceedings, including the May 29, 2017 order, in Mitchell, ¶ 15 n.5, 426 P.3d at 835 n.5 :

Dissatisfied with the custody and visitation rulings, [Father] filed several petitions seeking custody and/or protection orders in the tribal court. He first filed a petition seeking temporary custody in February 2014. Additional petitions followed after entry of the February 2015 custody order. The tribal court dismissed several of [Father's] petitions for lack of jurisdiction due to the Wyoming court proceedings. At other times, the tribal court claimed temporary emergency jurisdiction. The record does not contain the complete filings and dispositions for every filing, however, on May 29, 2017, the tribal court dismissed a petition for custody with prejudice for lack of jurisdiction, and ordered [Father] to refrain from further filings. [Father] and [Grandmother] disobeyed this order and continued to file documents requesting protection orders from the tribal court to establish emergency custody of [the child].

[¶18] Father's argument in this appeal entirely omits the May 29, 2017 order, apparently because it directly contradicts his assertion that the tribal court acquired jurisdiction over the custody matter through its emergency orders. The May 29, 2017 order was comprehensive, examining the ICWA; the PKPA; the Uniform Child Custody Jurisdiction and Enforcement Act (codified in Wyoming at Wyo. Stat. Ann. §§ 20-5-201, et seq. ) (UCCJEA); the Cheyenne River Children's Code; and the Cheyenne River Law and Order Code. The tribal court concluded that the Sheridan County district court had continuing jurisdiction over the child's custody and the tribal court did not have jurisdiction. Other parts of the record lead us to believe that Father appealed the May 29, 2017 order to the tribal court of appeals. Father has not informed us that the tribal court of appeals has reversed the May 29, 2017 order, so we will keep that order in mind as we address Father's issues on appeal.

[¶19] Father maintains that, under the ICWA, 25 U.S.C. § 1911(a) and (d), the tribal court acquired jurisdiction over the custody matter by issuing emergency orders and its orders are entitled to full faith and credit:

(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
....
(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes
The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.

[¶20] As the language of § 1911 makes clear, the ICWA governs "child custody proceedings." That term is defined at 25 U.S.C. § 1903(1) :

(1) "child custody proceeding" shall mean and include-
(i) "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
(ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship;
(iii) "preadoptive placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and
(iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

(emphasis added).

[¶21] Applying the divorce exemption highlighted above, the tribal court ruled in its May 29, 2017 order that the ICWA did not apply to this case. The tribal court's decision is consistent with many cases which hold the ICWA does not apply to custody disputes between parents in divorce actions. See, e.g. , Asa'carsarmiut Tribal Council v. Wheeler, 337 P.3d 1182, 1189 (Alaska 2014) ; Cox v. Cox, 613 N.W.2d 516, 519 (N.D. 2000) ; DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 514 (8th Cir. 1989). Additionally, even though the statutory exemption uses the term "divorce," it applies to custody disputes between non-married parents. See, e.g. , John v. Baker, 982 P.2d 738, 747 (Alaska 1999). In Application of DeFender, 435 N.W.2d 717, 721-22 (S.D. 1989), the South Dakota Supreme Court quoted the U.S. Department of the Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67587 B.3(b) (1979), as follows: "Child custody disputes arising in the context of divorce or separation proceedings or similar domestic relations proceedings are not covered by the Act so long as custody is awarded to one of the parents." (emphasis added). See also , Cherino v. Cherino, 143 N.M. 452, 176 P.3d 1184, 1186 (Ct. App. 2007).

[¶22] The cases Father cites to support his argument that the tribal court acquired jurisdiction to make permanent custody decisions regarding the child do not hold that the ICWA gives tribal courts jurisdiction over private custody disputes between parents. To the contrary, they demonstrate that the ICWA only applies to cases which meet the statutory definition of child custody proceedings, such as adoptions of Indian children or proceedings to terminate parental rights. See Comanche Indian Tribe of Oklahoma v. Hovis, 53 F.3d 298 (10th Cir. 1995) (termination of parental rights); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (adoption); Matter of Adoption of Halloway, 732 P.2d 962 (Utah 1986) (adoption); Navajo Nation v. District Court for Utah County, 831 F.2d 929 (10th Cir. 1987) (adoption); Roman-Nose v. New Mexico Dep't of Human Servs., 967 F.2d 435 (10th Cir. 1992) (termination of parental rights); Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548 (9th Cir. 1991) (adoption). Father does not cite any authority indicating that the exemption for parental custody disputes should not apply in this case. We, therefore, conclude the ICWA does not apply to the private custody dispute between Mother and Father.

[¶23] Even if we assume, for the sake of argument, that the ICWA and the full faith and credit provision in § 1911(d) apply to this case, we would still reject Father's argument that the tribal court's emergency orders gave it jurisdiction to make permanent custody decisions regarding the child. As we explained above, Father references four orders in his argument that the tribal court acquired jurisdiction over the child custody matter-the March 10, 2016 order; the June 20, 2016 order; the November 3, 2016 order; and the July 31, 2017 order.

[¶24] Two of the four orders (the June 20, 2016 order and the July 31, 2017 order) do not, in any way, support Father's argument that the tribal court acquired jurisdiction to make permanent custody decisions regarding the child by issuing emergency orders. The June 20, 2016 tribal court order was a restraining order prohibiting Mother from contacting or harassing Father. It did not mention the child or the child custody matter at all.

[¶25] The July 31, 2017 order dismissed Grandmother's request for custody of the child and/or a protection order to prevent Mother from contacting the child. It referenced an earlier order "dismissing the custody issue" because the tribal court lacked jurisdiction, which was then on appeal to the tribal court of appeals (presumably the May 29, 2017 order). The tribal court said that "insofar as the Petition seeks custody, this Court lacks jurisdiction to hear such matters until the Court of Appeals rules on the Appeal already filed[.]" Given the July 31, 2017 order expressly denied Grandmother's request for custody, it does not support Father's argument that the tribal court acquired jurisdiction over the child custody matter.

[¶26] In the other two orders (the March 10, 2016 and the November 3, 2016 orders), the tribal court asserted temporary emergency jurisdiction over the child pursuant to the PKPA, 28 U.S.C. § 1738A(c)(2)(C). Father claims the Wyoming district court was required to give full faith and credit, under ICWA § 1911(d), to the tribal court's emergency orders and those orders demonstrate the tribal court acquired jurisdiction to make permanent custody decisions.

[¶27] The PKPA, 28 U.S.C. § 1738A, states in relevant part:

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify ... any custody determination or visitation determination made consistently with the provisions of this section by a court of another State.
....
(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if-
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met: ...
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse[.]

[¶28] According to the tribal court, the "Cheyenne River Sioux Tribal Court of Appeals has ruled that the Cheyenne River Sioux Tribal Courts are 'state courts' for purposes of the [PKPA] and are bound to recognize state court custody orders and are entitled to be recognized as 'state courts' for purposes of recognition and enforcement of its child custody orders." Under the PKPA, the state that initially determines child custody generally retains jurisdiction to modify its custody order. Marquiss v. Marquiss, 837 P.2d 25, 37 (Wyo. 1992). We discussed the purposes of the PKPA and its state counterpart, the Uniform Child Custody Jurisdiction Act (UCCJA) (the predecessor to the UCCJEA), in State ex rel. Griffin v. Dist. Ct. of Fifth Dist., 831 P.2d 233, 237 (Wyo. 1992) :

A fundamental purpose of both the UCCJA and the PKPA is to avoid conflict and promote cooperation. Other underlying purposes include the elimination of forum shopping, to enable courts to act in the best interests of children, and to deter interstate abductions and other unilateral removals of children undertaken for purposes of obtaining custody.

(citations omitted).

[¶29] Although the initial decree state retains continuing jurisdiction to make permanent custody decisions, another state may assert jurisdiction over a child in emergency situations pursuant to § 1738A(c)(2)(C). Emergency jurisdiction under the PKPA is temporary and should continue "only so long as the emergency exists or until a court that has jurisdiction to enter or modify a permanent custody award is apprised of the situation and accepts responsibility to ensure that the child is protected." Sheila L. on Behalf of Ronald M.M. v. Ronald P.M., 195 W.Va. 210, 465 S.E.2d 210, 223 (1995) (discussing PKPA). See also, NMC v. JLW, 2004 WY 56, ¶ 14, 90 P.3d 93, 97 (Wyo. 2004) (discussing similar temporary emergency jurisdiction under UCCJA).

[¶30] A court's assertion of temporary emergency jurisdiction under the PKPA does not give it authority to modify a permanent custody decision. Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377, 383 (1998). In Sheila L., 465 S.E.2d at 222, the West Virginia court explained:

To hold [that emergency jurisdiction under the PKPA gave the court authority to make a permanent custody order] would be a license for every unscrupulous would-be custodial parent in the country to take his or her children and make false allegations of emergency situations in states where favorable custody decisions may result. See Ex parte J.R.W. (Re: S.C. v. J.R.W.), 667 So.2d 74, 81 (Ala.1994), as modified; rev'd on other grounds, 667 So.2d 88 (Ala.1995) ("[a]llowing a state court to modify 'permanently' a prior custody determination of another court solely on the basis of the 'emergency' provision of § 1738A(c)(2)(C) would thwart the very purposes for which the PKPA was enacted"[).]

See also , SC v. Dep't of Family Servs. (In re NC and AM), 2013 WY 2, ¶ 43, 294 P.3d 866, 876 (Wyo. 2013) (holding that similar emergency jurisdiction provision of the UCCJEA did not "include the authority to make permanent custody determinations").

[¶31] The tribal court appropriately recognized the limitations on its authority under the PKPA. In the March 10, 2016 order, the tribal court stated that the Wyoming district court retained primary jurisdiction over the custody matter. The tribal court's May 29, 2017 order, which bore the same case number as the November 3, 2016 temporary order, confirmed that the tribal court was bound to recognize the Wyoming custody order. The tribal court also stated that the PKPA prohibited it from modifying the permanent custody order unless the Wyoming court lost or relinquished jurisdiction. Therefore, the tribal court's assertion of emergency jurisdiction in its March 10, 2016 and November 3, 2016 orders did not affect the February 2015 Wyoming custody order or the Wyoming district court's continuing jurisdiction to make permanent custody determinations.

[¶32] In a final argument based upon the ICWA, Father claims that the tribal court acquired jurisdiction over the custody matter because the child is a ward of the tribal court. His argument is based upon the part of § 1911(a) that states: "Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child." Father's argument that the child is a ward of the tribal court is apparently based upon the emergency orders discussed above and a November 29, 2017 notice from the Tribal Chairman stating that he was placing the child under permanent protection of the tribe, as a ward of the tribe, in the care of Grandmother. Father incorrectly suggests that the Tribal Chairman's notice is an order from the tribal court.

[¶33] Father does not direct us to any tribal court order making the child its ward. He also does not address the ramifications of the Tribal Chairman, rather than the tribal court, declaring the child a ward. We generally refuse to consider arguments not supported by cogent argument or citation to pertinent authority. Whitham v. Feller, 2018 WY 43, ¶ 25, 415 P.3d 1264, 1270 (Wyo. 2018) ; Hodson v. Sturgeon, 2017 WY 150, ¶ 6, 406 P.3d 1264, 1265 (Wyo. 2017). Furthermore, the Tribal Chairman deferred to the tribal court when he directed all tribal departments and agencies to protect the sanctity of the Lakota family "until this issue is resolved in Tribal court." Thus, even if the ICWA applied in this case (which it does not), Father has not demonstrated that the tribal court made the child a ward so as to affect the Wyoming district court's continuing jurisdiction to determine the child's permanent custody.

[¶34] The district court properly concluded that it retained exclusive continuing jurisdiction to make permanent custody determinations regarding the child. It did not err by striking (or denying) Father's motion to establish tribal court jurisdiction over the custody matter.

[¶35] Affirmed.

      Father combined this motion with a request to change venue to Weston County. In this appeal, he does not challenge the district court's order on his motion for a change of venue.

      The use of the term "strike" seems incorrect in the context of this case. The district court did not strike Father's motion and refuse to consider it. It considered the matter and rejected Father's motion, which is more akin to a denial of the motion.

      Father also cites Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990) as authority for his argument that the tribal court had concurrent jurisdiction over the child custody matter. That case considered tribal jurisdiction to punish members for violations of tribal law. It does not address child custody at all.