--- Am. Tribal Law ----, 2019 WL 5419957 (Colville C.A.), 14 CCAR 49, 7 CTCR 34
Colville Tribal Court of Appeals.
Donovan ANTOINE, Appellant,
Tissieann MARCHAND, Appellee.
Case No. AP19-001
Decided September 30, 2019
Trial Court Case No. CV-OC-2018-41195

Pouley, J.

The record in this case suggests that the Appellant/Respondent (hereinafter “Respondent”) and the Appellee/Petitioner (hereinafter “Petitioner”) resided together for a number of years on the Colville Reservation. During this time, they acquired various items of personal property, or brought personal property with them when they began residing together. It also appears there were significant and dangerous altercations between the parties while they resided together. There are no findings from the Trial Court supporting these conclusions, but the record from the Trial Court gives us confidence that these conservative statements of fact are true and offer context to the matter before us.

On August 20, 2018 the Petitioner filed a Summons and Complaint and a “Motion and Affidavit Requesting Emergency Restraining Orders and/or Temporary Orders(s) (sic) and Order to Show Cause” (hereinafter “August 20 Motion for OSC”). The Complaint’s request for relief sought permission to enter the parties previously shared residence to retrieve her and her son’s personal property (including an attachment identifying the property). In the ex parte motion, the Petitioner requested the Respondent be ordered to vacate the premises so she could enter the home and collect all of the identified personal property. She disclosed that she had already removed some personal property from the home, but she did not specifically identify the property. Within an hour of the filing, the Court entered an order without the benefit of a hearing and without notice to the Respondent that:
1. Denied the Petitioner’s “motion for emergency restraining order”;
2. sua sponte, ordered “the non-requesting party is restrained from contacting Petitioner and her son in any way at any location”;
3. ordered that the “Petitioner is allowed to retrieve her personal property August 25, 2018 from 9:00 a.m. to 3:00 p.m.”; and
4. set a show cause hearing for September 4, 2018.

The record does not indicate how, when or if the Respondent received service of the Order or the Complaint, but on August 22, 2018 he filed a “Motion and Affidavit” requesting a continuance on the grounds he was unprepared and needed to go through the personal property in the shared residence. He also requested a hearing on the ex parte motion indicating that he contested the ownership of the personal property identified in the list attached to the Complaint. That same day, without a hearing, the Court denied the Respondent’s Motion for Continuance, and affirmed the Petitioner’s ability to enter the home on August 25, 2018.

On August 23, 2018 the Respondent filed a second motion, requesting a hearing before the Petitioner was allowed to enter the home to remove property. In this filing the Respondent informed the Court there was a criminal matter pending in federal court in which it was alleged the Petitioner assaulted the Respondent and the federal court entered a restraining order prohibiting the Petitioner from contacting him. It appears from the Trial Court’s order, issued the same day without hearing, the Court did not fully address the Respondent’s requests and simply allowed the previous order and denial of a hearing to stand without amendment.

On August 24, 2018 the Office of the Tribal Prosecutor brought a Motion to Intervene and on behalf of the Respondent seeking to have the civil standby order quashed. In support of the motion the prosecutor noted that (among other things);
1. there was no emergency warranting distribution of property;
2. the Petitioner was not candid with the court;
3. the Petitioner failed to inform the court that she was subject to a restraining order issued by a federal court;
4. The federal court’s order was subject to full faith and credit;
5. the Respondent was the alleged victim of a crime perpetrated by the Petitioner and he was contesting ownership of the personal property being sought by the Petitioner;
6. Due process required a hearing to allow the Respondent to offer testimony to the court;
7. The items requested by the Petitioner were not critical and could be distributed after a hearing; and
8. The Respondent’s property was subject to damage if the Petitioner was allowed entry to the home.

On the day the prosecutor’s motion was filed, the Court, without a hearing, denied the prosecutor’s motion on the grounds that the prosecutor was not a party to the case and “no application to Accept a foreign judgment was filed,” and that the Court “had no proof” of any restraining order entered against the Petitioner. A subsequent Motion to Reconsider was also denied.

The Petitioner did not enter the residence on August 25 as allowed by the prior order. On August 30 she filed another ex parte motion requesting the Respondent be ordered from the home on September 1 from 9-4 to allow her to remove the previously identified personal property. The request was immediately granted, again without a hearing. A civil standby was allowed “if available”. There is no affidavit that the Respondent was served the order, but he apparently received notice as he vacated his home the next day.

On September 1, 2018 the Petitioner entered the home with other private citizens and without a civil standby and removed personal property from the home. It appears from the record she removed at least everything on the list attached to her Complaint and the Respondent later asserted to the Court that she removed more than was identified in the Complaint and damaged property left in the home.

On September 4, 2018 the parties appeared for the previously scheduled show-cause hearing. The Court entered a sua sponte mutual restraining order, directed the parties to provide the Court with inventory lists of property they claimed, and set an evidentiary hearing for October 15, 2018.

Before the October 15 hearing the parties exchanged information and filed documents with the Court. Much of the exchange occurred at the time of hearing and outside the deadlines set by the Court so the Court dissolved the mutual restraining orders, made preliminary rulings that are not at issue on this appeal and continued the hearing to December 4 so the parties could prepare.

At the December 4 hearing, as Respondent’s counsel asked their first cross-examination question, the Court inquired if the Respondent was asserting that the parties lived in a meretricious relationship. Counsel answered “no,” but reserved the right to make that argument at a later point. The judge sua sponte dismissed the entire case and left the courtroom. The Respondent was not allowed to testify or present evidence in the matter at any point of the proceedings prior to the dismissal of the action.

This appeal followed.



Our standard of review in this matter is “abuse of discretion.” That is, we will overturn the Trial Court’s decision only if its action was manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Further, a minimum review for abuse of discretion would require a review for due process. Sonnenberg v. CCT Court, 5 CCAR 9, 3 CTCR 09, 25 Ind.Lw.Rptr. 6073, 1999 WL 35016024 (02-02-1999).

The procedure followed in this matter is troubling and shines a light on the vital importance of due process protections built into our law and procedures. Parties must have reasonable notice to any substantive hearing to allow the parties time to prepare their respective cases. Gallaher v. Foster, 6 CCAR 48, 3 CTCR 50, 29 Ind.Lw.Rptr. 6079, 2002 WL 34540612 (07-23-2002). In this case the Trial Court made many decisions and entered crucial orders without the benefit of a hearing and without affording the Respondent the opportunity to be heard before relief was granted to the Petitioner. The Court compounded these early errs by dismissing the matter on its own motion, again before the Respondent had the opportunity to present evidence to the Court or make a record of his claims. For these reasons this Court Reverses in part and remands the matter for further proceedings.

When a court is presented with an ex parte motion requesting emergency relief it is constrained by the accuracy and completeness of the information contained in the pleadings offered by a single party. Within reason, the court presumes the truth of what is presented and grants or denies relief based on that information and this presumption. Because the initial pleadings may not accurately convey the complete facts of the situation, the court must be cautious about any ex parte relief granted. The court may only grant relief that is aimed at preventing imminent and irreparable injury to the requesting party.

In this case the Petitioner sought an emergency order to enter the parties shared residence to retrieve personal property she asserts belongs to her and her son. The Petitioner attached a list of property several pages long that included clothes, furniture, art, recreational equipment, holiday decorations, kitchen items, gardening supplies, and much more. The Court’s August 20, 2018 ex parte emergency order granted the Petitioner’s request to retrieve all of the personal property listed in the attachments to the Complaint. In essence, the Court granted ALL of the relief requested in the Complaint without conducting a single hearing or knowing if the Respondent even had notice of the proceedings.

Soon after the Court entered the Order, and before the Petitioner was to enter the home to recover the property the Respondent informed the Court that he disputed the Petitioner’s claim for possession of the property and the accuracy of the facts alleged in the Complaint. Similarly, although the Court denied the Tribe’s request for intervention, the pleadings now informed the Court of the pending criminal charges and restraining orders that existed in a federal district court.1

This Court makes no findings as to the disputed facts, but there was sufficient credible evidence before the Trial Court to put it on notice that there was a dispute as to the events that occurred between the Petitioner and Respondent and as to the relief that should be granted. The Court should have been alerted to the need to protect the due process rights of everyone involved, yet the Court maintained the ex parte emergency order granting the Petitioner all of the relief she requested in her complaint without the benefit of any hearings.

It is common for a court to grant emergency relief to a party to recover clothing, medications, toiletries and other important personal items from a home they’ve been forced to vacate. The court may also enter temporary restraining orders preventing either party from transferring, removing, encumbering, or concealing or in any way disposing of any property. There is no way, however, to find that the Petitioner or her son would be irreparably injured if the Court denied her the right to collect most of the items identified in her attachment until after the Court heard from all the parties. Granting the Petitioner the ability to collect furniture, art, kitchen items, holiday decorations and the like without a hearing is clearly erroneous.

There were multiple requests made and ample opportunity for the Court to hear from the Respondent before allowing the Petitioner to remove property from the home. The only hearing scheduled by the court was for September 4, 2018, AFTER the Petitioner was to be permitted to enter the Respondent’s home on August 25. Any hearing giving the Respondent the ability to address the Complaint that occurs AFTER the Petitioner is granted the relief requested in the Complaint is meaningless.

When the Court finally allowed a hearing in the matter, it compounded its early error by dismissing the matter sua sponte before the Respondent presented any evidence or argued his defense. After the Respondent’s counsel responded to the Court’s inquiry as to the meretricious relationship, the Court apparently came to the legal conclusion that the Colville Court had no jurisdiction to resolve the parties’ property dispute. There was no argument on this issue, no briefing and the parties did not raise the issue. As this Court has stated in the past, courts must be cautious before acting sua sponte, especially, as in this case, the decision dismisses the matter before one of the parties is given the opportunity to fully present his case. Colville Indian Housing Authority v Edwards, 11 CCAR 54, 6 CTCR, 11 Am. Tribal Law 310 (2014).

It is well established in this Court, and most other jurisdictions, that the basic tenants of procedural due process include adequate notice and the opportunity to be heard and present evidence of one’s case. Lezard v Deconto, 10 CCAR 23, 5 CTCR 25, 36 Ind.Lw.Rptr. 6010, 9 Am. Tribal Law 119 (2009). The Court failed to provide the Respondent even minimal due process protections in this matter before granting the Petitioner all of the relief requested in the Complaint. Even in a case where the outcome appears certain, the Court must refrain from acting before all parties are given the opportunity to state their case. Here, it should have been clear that the Petitioner’s complaint asserted facts disputed by the Respondent and may have been contrary to facts and conclusions presented in a federal criminal proceeding.

In order for this Court to properly review a case, it is imperative the Trial Court create a proper record for review. In its dismissal order the Court recites the disputed positions of the parties but does not reach any findings of its own based on the preponderance of the evidence. In fact, doing so would seem impossible since the Respondent was not allowed to present his testimony and evidence. The Respondent also asserts the Court may have decided the matter based on unsworn statements or evidence not properly entered in the record. Because of the lack of proper findings this Court is unable to determine if this claim of error is true, therefore it creates a fatal irregularity in the proceedings.



While this Court is unable to remedy the Trial Court’s violation of the Respondent’s right to due process in that it is unable to change the fact the Petitioner was improperly allowed unfettered access to the Respondent’s home without a hearing, to the extent the ex parte orders appear to conclusive address the ownership or proper disposition of the personal property identified in the complaint, the ex parte orders are VACATED and subject to further proceedings.

The order of dismissal is REVERSED. The Court is directed to conduct a hearing at which both parties are given the opportunity to present evidence and testimony regarding the ownership and possession of personal property before, during and after the relationship ended. The parties should make any and all legal or factual claims they believe are appropriate and supported by the law. After all of the evidence is presented and arguments are heard, the court must make findings of fact (not just recite the parties allegations) and conclusions of law regarding the proper disposition of the property identified in the complaint. If personal property has been lost or destroyed, it is appropriate for the Court to enter a judgment for damages suffered by either party as a result.


All Citations
--- Am. Tribal Law ----, 2019 WL 5419957, 14 CCAR 49, 7 CTCR 34



While the Appellant raised this issue in his appeal, the tribe declined an invitation to file a brief on the matter. Because the Tribe as not stepped forward on this issue this Court is not considering whether the court erred.