Begay v. Begay

6 Navajo Rptr. 160
Navajo Nation Supreme Court·Decided December 6, 1989·No. No. A-CV-06-89·Published

Opinion

OPINION

Opinion delivered by

Austin, Associate Justice.

Appellant, Rose Begay, filed this appeal challenging the district court's disposition of Mutual Help Housing pursuant to a divorce decree. The decree was entered in the Crownpoint District Court on February 9,1989. The only issue on appeal is whether the court abused its discretion in awarding the Mutual Help Housing, the sole marital asset, to appellee, Eugene Begay. We vacate and remand for rehearing.

I

In 1974, appellee, who was then married to Rose Becenti, applied to the Navajo Housing Authority (Housing Authority) for Mutual Help Housing (the house) in Crownpoint, New Mexico. The Housing Authority rejected appellee's housing application, but told him that he could be put on a waiting list and appellee agreed. Rose Becenti died shortly thereafter and on August 17, 1979, appellee, who was from Shiprock, New Mexico, married appellant, a resident of Crownpoint.

Appellee's application was accepted and he was offered housing in Crownpoint in October of 1981. Both appellant and appellee signed the Housing Authority agreement. In August of 1982, appellant, appellee, and three of appellant's children by a different marriage moved into the house. Initially, only appellee worked, while appellant attended Crownpoint Institute of Technology. Only appellee has made payments on the house through payroll deduction.

The marriage foundered. Appellant complained that appellee was uncommunicative and unhelpful around the house. Appellee, on the other hand, alleged [161]*161that appellant was unfaithful while attending the Institute. As a result, appellee moved out of the house in My, 1986. Despite moving out, appellee continued to make house payments. Appellant began working in the fall of 1988 and on November 21, 1988, appellant filed this action for divorce. Neither party contested the grounds for divorce, only the property settlement attendant thereto.

After a hearing, the court granted the divorce and awarded the house to appellee; an effective 100-0 split of the marital assets. The divorce decree recited no reasons for this division. The hearing transcript reveals that the court struggled to reach a decision and apparently based its decision on several different grounds.

The court first concluded that appellant would be unable to make payments on the house and to appellee for his share of the community property as he requested. The court also found that the marriage lacked solid foundation, lasting less than 10 years and producing neither children nor substantial assets. The court was also persuaded that appellant could easily acquire another house in Crownpoint, but that appellee could not. Finally, the court found appellant's conduct blameworthy and appellee's praiseworthy.

II

A

The Begays’ interest in Mutual Help Housing is a property interest. Navajo Housing Authority v. Betsoi, 5 Nav. R. 55 (1984). Their interest in the house is defined primarily by their agreement with the Housing Authority and has dual aspects. The agreement is essentially a “lease-purchase” agreement entitling them to lease the home and, upon discharging their contractual obligations, to become homeowners. Both interests are legally cognizable property interests.

Appellee contends that the house is not community property because he applied for housing prior to marrying appellant. Consequently, he argues, the house is his separate property and the trial judge properly awarded the house to him. Appellee's contention lacks merit. Community property includes all property “acquired by either husband or wife during the marriage.” See 9 N.T.C. § 205. Appellee acquired no property interest in the house until both he and appellant entered into the housing agreement, two years after their marriage.

The Mutual Help Housing agreements are entered into in compliance with federal regulations. 24 CFR § 805.401 et. seq:, see generally, Ulmer, The Legal Origin and Nature of Indian Housing Authority and the HUD Indian Housing Programs, Am. Indian L. Rev., Vol. XIII, no. 2. Neither federal law, however, nor the agreement itself contains provisions regarding disposition of Mutual Help housing leasehold interests in divorce actions. The Begays’ “lease-purchase” agreement is community property, and its disposition is not governed by the agreement; therefore, it is subject to Navajo Nation laws controlling disposition of community property. See 9 N.T.C. § 205; 9 N.T.C. § 404.

[162]*162In most instances, community property is to be divided equally. See, e.g., Willie v. Willie, 4 Nav. R. 31, 32 (1983); Estate of Tsosie, 4 Nav. R. 198 (Window Rock Dist. Ct. 1983). Where property is divided pursuant to a divorce, however, the Tribal Code directs the trial court to “provide for a fair and just settlement of the property rights between the parties.” 9 N.T.C § 404. Section 404 does not mandate equal division of community property. It grants the trial court discretion to make unequal divisions of community property. See, Battese v. Battese, 3 Nav. R. 110, 111 (1982); but cf. Ellsworth v. Ellsworth, 564 N.M. 133, 639 P.2d 97 (1981) (requiring the trial court to divide community assets equally); and see qenerally, 24 Am. Jur. Divorce and Separation § 930 (1983).

We do not believe that section 205 plays no role in the division of marital property pursuant to section 404. We believe that section 205 means that the trial court shall distribute the property based on a preference for equal division of community property. See, Livingston v. Livingston, 5 Nav. R. 35 (1985); Willie v. Willie, 4 Nav. R. at 32. This approach best harmonizes the requirements of sections 205 and 404.

Dividing community property based on a preference for equal division means that the trial judge must divide community property equally absent specific reasons justifying unequal division. Moreover, where the trial judge is persuaded that unequal division is justified, the judge must recite reasons justifying unequal division in the divorce decree. The preference requirement does not put burdens on the litigants. It simply creates a particular structure for the judge's deliberative process and where the judge concludes that unequal division is appropriate, to reduce those reasons to writing for appellate review. Such findings and conclusions are essential if we are to police the borders of permissible discretion. In this case, the trial judge gave no reasons for awarding the entire house to appellee and we thus conclude that a bare declaration awarding the house to appellee was inadequate support.

B

In reaching a settlement of unequal proportions, a judge is to be guided by the factors enumerated in Shorty v. Shorty, 3 Nav. R. 151 (1982). We now review the applicable Shorty factors and consider their application to this case.

1. The economic circumstances of each party, including:

a. age;
b. health;
c. station (work or social position);
d. vocational skills or need for retraining as to acquire new skills;
e. employability; and
f.

Free access — add to your briefcase to read the full text and ask questions with AI

Begay v. Begay, 6 Navajo Rptr. 160 (navajo 1989).

6 Navajo Rptr. 160 (Begay v. Begay) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Sheppard v. Sheppard
655 P.2d 895 (Idaho Supreme Court, 1982)
In MATTER OF MARRIAGE OF JASPER v. Jasper
318 N.W.2d 792 (Wisconsin Supreme Court, 1982)
In Re Marriage of Anderson
64 Cal. App. 3d 36 (California Court of Appeal, 1976)