Bahe v. Platero

11 Am. Tribal Law 104
CourtNavajo Nation Supreme Court
DecidedDecember 20, 2012
DocketNo. SC-CV-48-12
StatusPublished
Cited by2 cases

This text of 11 Am. Tribal Law 104 (Bahe v. Platero) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bahe v. Platero, 11 Am. Tribal Law 104 (navajo 2012).

Opinion

OPINION

This matter comes before the Court on Appellant Glenyal Bahe’s appeal from an order of the Crownpoint Family Court denying Appellant’s Motion for New Trial and to Amend or Alter Judgment. In its order, the family court affirmed its earlier dismissal of Appellant’s paternity, child custody and support action in deference to the jurisdiction of a New Mexico state court, where Appellee had previously filed a competing action. For the reasons set forth below, we affirm the family court’s decision.

I

The parties are both enrolled Navajos. They are unmarried. Neither party disputes that Appellee is the father of the parties’ two sons, ages three and five. The parties lived together in Torreón, New Mexico on the Navajo Nation between 2006 and 2010, then moved with their sons to Albuquerque, New Mexico. Sometime in 2011, the parties separated. At some point in 2011, their sons, either with Appellant or by themselves, began living in the residence of their maternal grandmother in Torreón. The parties dispute when this move occurred.1

On December 2, 2011, Appellee filed a Petition to Establish Parentage, Determine Custody and Time-Sharing, and Assess Child Support in the Second Judicial District Court, Bernalillo County, New Mexico, requesting joint legal custody, with physical custody to the mother and visitation for himself. Appellant was served with the petition on January 18, 2012. On January 31, 2012, Appellant filed a competing Petition to Establish Paternity, Custody and Child Support in the Crownpoint Family Court of the Navajo Nation requesting sole legal and physical custody of the children with limited visitation to the father.

On the basis of her Crownpoint filing, Appellant moved to dismiss the Bernalillo County, New Mexico action. At a hearing on the motion held on May 8, 2012, the state judge took testimony on the children’s residence. Shortly thereafter, the judge communicated with the Crownpoint Family Court judge pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) at § 40-10A-110 NMSA (1978). Following this communication, the Crownpoint court dismissed the Crownpoint action on May 14, 2012, deferring jurisdiction to the state court on the basis that “judicial resources will be preserved, forum shopping will be discouraged, the children will benefit and the matter will [be] resolved in the most convenient forum.” Order of Dismissal, p. 2. On the sole basis of the Crownpoint court’s sua sponte dismissal of that action, on May 15, 2012, the state court denied Appellant’s [106]*106motion to dismiss the action in the state court.

On June 4, 2012, Appellant filed her Motion for New Trial and to Amend and Alter Judgment in the Crownpoint Family Court, asserting that the state court lacked proper jurisdiction under the UC-CJEA because the children had moved to the residence of their maternal grandmother in Torreon in February, 2011 and were, therefore, not in the state of New Mexico for the required length of time for the state to acquire “home state” jurisdiction under the UCCJEA. The Crownpoint court accepted the post-judgment motion and ordered the parties to submit additional briefing on the jurisdictional issue. Both parties submitted briefs. On July 11, 2012, the Crownpoint court denied Appellant’s motion on the basis of the court’s discretion under PacifiCorp v. Mobil Oil Corporation, 8 Nav. R. 378, 4 Am. Tribal Law 694 (Nav.Sup.Ct.2003) to abstain from hearing a case that is properly pending in another jurisdiction unless public policy considerations dictate otherwise.

This appeal followed. The Court granted a Motion for Expedited Ruling filed by Appellant. Briefs were submitted on an expedited schedule. Appellant filed further motions, first for a decision on the record and second, to strike Appellee’s brief with fees and sanctions on two bases, namely (1) the brief was submitted a few days past the expedited deadline, and (2) Appellee’s counsel had submitted the brief without being duly licensed to practice law on the Navajo Nation. On December 4, 2012, the Court granted Appellant’s motion for a decision on the record but denied Appellant’s second motion regarding Ap-pellee’s counsel’s late and unauthorized submission of brief, on several bases, including fundamental fairness and Appellant’s failing to raise the matter of unauthorized practice before briefs had been submitted in compliance with court orders that, from the beginning, were addressed to both parties’ counsel of record. Meanwhile, the state court action has proceeded forward with the state judge referring the parties’ paternity, custody and support matters for evaluation by a court clinic and mediation.

We now issue our opinion.

II

The issue in this appeal is whether the Crownpoint Family Court abused its discretion by dismissing a privately-filed child custody matter concerning Navajo parents and Navajo children in deference to a state court in which an earlier petition in the same matter had been filed.

III

We review the nature of state and tribal jurisdiction over privately filed child custody matters de novo as a legal question. In re A.M.K., 9 Am. Tribal Law 191 (Nav.Sup.Ct.2010) citing Green Tree Servicing, LLC v. Duncan, 7 Am. Tribal Law 633 (Nav.Sup.Ct.2008) and Navajo Transport, Services v. Schroeder, 7 Am. Tribal Law 516 (Nav.Sup.Ct.2007). We review the family court’s decision on abstention for abuse of discretion. Discretion is limited by legal principles and must be exercised in conformity with the spirit of the law and adopted rules, to serve the ends of justice. Sheppard v. Dayzie, 8 Nav. R. 430, 484, 5 Am. Tribal Law 374 (Nav.Sup.Ct.2004).

IV

We take judicial notice that Navajos live both on the Navajo Nation and throughout the United States, where they are raising families in communities outside the land of our forefathers. Navajo individuals and families may move across bor[107]*107ders for jobs or relationships or to return to their extended families. All these reasons are apparent in this case, where the breakup of one Navajo family living for a time outside the reservation has resulted in state-tribal jurisdictional challenges. While most jurisdictional issues in child custody matters presented to this Court have involved a Navajo and non-Navajo parent, here both parents and their children are all tribal members.

We note that in this case, the record shows no findings to our satisfaction as to the residence of the mother during the pendency of her child custody petition, while the mother insisted that the children resided with her. Therefore, we will assume that not all the parties resided on the Navajo Nation, and that events relevant to the matter appealed may well have occurred outside the Navajo Nation.

The Navajo Nation has codified its extraterritorial jurisdiction under the 2001 Navajo Nation Long-Arm Civil Jurisdiction and Service of Process Act (Long-Arm Statute) at 7 N.N.C. § 253a. Pursuant to Section 253a(B), the Nation has jurisdiction over tribal members based on conduct and status if another tribal member is affected by their activities outside our jurisdiction. Additionally, Section 253a(F) provides that our courts “may exercise jurisdiction on any other basis authorized by law, including the inherent and treaty jurisdiction of the Navajo Nation.” We have previously stated that our courts have jurisdiction over our children wherever they may reside. Miles v.

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12 Am. Tribal Law 50 (Navajo Nation Supreme Court, 2014)

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Bluebook (online)
11 Am. Tribal Law 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bahe-v-platero-navajo-2012.