Lujan Ex Rel. Lujan v. Casados-Lujan

2004 NMCA 036, 87 P.3d 1067, 135 N.M. 285
CourtNew Mexico Court of Appeals
DecidedOctober 28, 2003
Docket22,984
StatusPublished
Cited by18 cases

This text of 2004 NMCA 036 (Lujan Ex Rel. Lujan v. Casados-Lujan) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lujan Ex Rel. Lujan v. Casados-Lujan, 2004 NMCA 036, 87 P.3d 1067, 135 N.M. 285 (N.M. Ct. App. 2003).

Opinion

OPINION

PICKARD, J.

{1} This case is one of several of which we are aware that raise challenges to New Mexico’s system of adjudicating domestic violence cases. Although we uphold the adjudication under the facts and circumstances of this appeal, we express our concerns about some of the allegations Respondent makes on appeal. Respondent contends that (1) a parent cannot act on behalf of her child in filing a petition for an order of protection, (2) the evidence in this case was insufficient and does not amount to domestic violence as a matter of law, (3) the system of using special commissioners and then judges, who do not independently review all the evidence heard by the special commissioners and who do not review respondents’ written objections to the special commissioners’ recommendations, is a violation of due process and an improper delegation of judicial functions, and (4) the special commissioner was biased. We affirm.

PACTS AND PROCEEDINGS

{2} On February 7, 2002, Darlene Lujan filed a petition for an order of protection from domestic abuse on behalf of her fourteen-year-old son (Child) against her ex-husband’s new wife (Respondent). The petition alleged that the acts of domestic abuse consisted of “continuous verbal abuse and belittlement,” specifically that Respondent said things like:

1) You’re a f[ — ]ing pig.
2) You’re f[ — ]ing worthless
3) You’re no good for nothing
4) lazy piece of sh[ — ]
5) You’re a f[ — ]ing slob.
6) You’re a reject.
7) You can’t do anything right.
8) Your mom’s nothing but a f[ — ]ing bi[ — ]
9) Your [sic] a son of a bi[ — ]!
10) Little a[ — ]hole
11) Your [sic] a dumb a[ — ].
12) Your [sic] a retarded f[ — ].

The petition alleged that Darlene Lujan feared physical abuse from Respondent. At the later hearing, Child affirmed that Respondent had said each and every one of these things to him. He testified that he too feared physical abuse from Respondent inasmuch as she was always bragging about hitting people, and he was fearful that she would hit him. Further, he explained that he was doing poorly in school because he could not concentrate because of the abuse. A psychologist testified that Child showed moderate symptoms of abuse.

{3} On February 7 (filed February 8), 2003, Judge Sanchez signed a temporary order of protection and ordered Respondent to appear on Thursday, February 21, for a hearing on whether an extended order would be entered. Child’s father filed a motion to intervene. Respondent filed a motion to dismiss, alleging that the petition failed to state a case for domestic abuse and that Darlene Lujan was prohibited from acting on behalf of Child because she was not an attorney.

{4} The matter was heard before a special commissioner for three hours on February 21, ending after 5:00 p.m. During the hearing, the special commissioner permitted the father’s intervention, but denied Respondent’s motion to dismiss. At the conclusion of the hearing, the special commissioner announced that she would issue an order of protection and that the parties could pick it up the next day or have it faxed to them. Respondent asked whether she would have an opportunity to file objections and was told that there was no provision in the domestic violence special commissioner rule for a ten-day period for filing objections because in ten days “everyone would be dead.” Although the special commissioner had told the parties the order would be ready the next day, the order was not signed by Judge Vigil until 4:00 p.m. the following Monday.

DISCUSSION

1. Parent Representing Child

{5} Respondent contends that the proceedings should have been dismissed because a parent cannot represent a child in a domestic abuse matter. Her arguments reflect the understanding that Child was the petitioner and Darlene Lujan acted on Child’s behalf, and we analyze the issues on this basis.

{6} Respondent relies on two lines of authority. In the first line, our cases hold that a parent cannot represent a child in a medical malpractice action because to do so would constitute the unauthorized practice of law. Chisholm v. Rueckhaus, 1997-NMCA-112, ¶¶ 4-5, 124 N.M. 255, 948 P.2d 707. In the second line, our eases hold that a trial court does not abuse its discretion when it disqualifies an attorney from representing his current wife in a claim for child support because the best interests of the children are not fostered by allowing representation that could alienate the other parent and undermine his relationship with his children. Sanders v. Rosenberg, 1997-NMSC-002, ¶¶ 9-17, 122 N.M. 692, 930 P.2d 1144.

{7} Neither of these lines of authority is persuasive here. First, our legislature has recognized that many people who are the victims of domestic violence are unable to obtain counsel and has mandated that simplified forms be available for such people to use. NMSA 1978, § 40-13-3 (1993). Our Supreme Court has agreed with the legislature and has approved a whole set of simplified forms to be used for these purposes. Forms 4-961 to -973 NMRA 2003; see Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (indicating that despite separation of powers issues, the Supreme Court does not have a quarrel with procedural statutes that are reasonable and workable and that the Court has not seen fit to change by rule).

{8} Thus, the problem of domestic violence and its attempted solution by legal intervention is not comparable to the problem of torts being committed against people and legal redress therefor, as was the issue in Chisholm. In the latter situation, there is nothing to suggest that legal representation is difficult to arrange, and there is much to suggest that legal proceedings for redress might be complicated. Legal representation in tort cases is typically paid for by eontingency fee arrangements; legal representation in domestic violence cases must be paid by the people involved, who are often of limited means. The issues in tort cases are often complex, involving extensive discovery, evidentiary issues, and myriad rules of law; the issues in domestic violence cases are factual, usually simple, and often time-sensitive. For these reasons, we agree with the legislature and Supreme Court, and we do not deem it advisable to import the general rules concerning the unauthorized practice of law into the specific area of domestic violence.

{9} Second, we do not believe that Sanders requires a reversal here. The procedural posture of Sanders was the exact opposite of the procedural posture of this case, leading us to the conclusion that the standard of review is the determining factor.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 036, 87 P.3d 1067, 135 N.M. 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lujan-ex-rel-lujan-v-casados-lujan-nmctapp-2003.