Davis v. Crownpoint Family Court

KING-BEN, Associate Justice,

Dissenting Opinion

In response to our November 8, 2001 order denying the Crownpoint Family Court’s Motion to Vacate, four issues were raised. They are: 1) whether the Crownpoint Family Court has jurisdiction to award temporary custody of the minors to the Petitioner, the natural father; 2) whether the natural father has standing to request custody of the minors; 3) whether the mother was afforded due process by the Crownpoint Family Court when it granted custody *289to the natural father; and 4) whether it is appropriate for the Supreme Court to substitute its own findings of fact with those of the Family Court.

Does the Crownpoint Family Court have jurisdiction to award temporary custody of the parties’ minor children to the Petitioner who is also the natural father.

The paramount issue is whether the Crownpoint Family Court had jurisdiction to award temporary custody of two minor children to the Petitioner, Hyrum Holloway (“Halloway’) in a Temporary Protection Order (TPO) arising out of a Domestic Abuse Protection Act (DAPA), 9 N.N.C. §1601 et. seq., proceeding where the court determines an emergency exists and without first holding a hearing as required by ¡31655A (2)( a).

On October 18, 2001, Halloway filed a Verified Petition for Domestic Abuse and Motion for Protection Order.1 On the same day, upon hearing the petitioner and considering the petition, the court entered its TPO. The order was issued without notice to the Respondent Corrina Davis (“Davis”) on the grounds that if notice is provided, Davis would “more than likely retaliate and inflict injury before the Order were to become effective.” Pursuant to §1655 of DAPA, the court can immediately grant or deny the motion for a TPO without a hearing or notice to the respondent if the court determines that an emergency exists. In this case, although Petitioner Davis did not file an official record or transcript with this Court,2 the record we do have shows allegations of domestic violence in both Halloway’s petition for a TPO and in Davis’ pleadings and attachments.

Attached to Davis’ Petition for Writ of Mandamus, Writ of Habeas Corpus, or Other Appropriate Writ along with other exhibits, are copies of two criminal complaints filed against her. The first complaint dated October 14, 2001 is for aggravated battery, an incident involving an assault with a knife; and the second complaint dated October 15, 2001 is for aggravated assault. According to the petition for the TPO, Davis is violent and committed acts of domestic violence. The alleged acts of domestic abuse are referenced in paragraph 2(a) of the Petition for Domestic Abuse Protection Order and Motion for Protection. Based on this information, there was an emergency and the Court had jurisdiction to issue a TPO and award temporary custody to Halloway. The Family Court should retain jurisdiction until it issues a final decision on the merits.

Whether Davis was afforded due process by the Crownpoint Family Court when it granted custody to Petitioner Halloway.

The court may issue a temporary ex parte order in emergency situations but is required to hold a hearing within 15 days after it issues a TPO to provide the *290respondent an opportunity to appear at a hearing to show cause why the court should not issue a Domestic Abuse Protection Order. See §§i665A(r)(d) and 1655 A(2)(a) of DAPA.

On October 18, 2001, the Court ordered Davis to appear before the Court on October 26, 200T, to answer the petition and at which time the court would determine if the final judgment for Permanent Protection Order is necessary. However, the hearing on the merits scheduled for October 26, 2001 was continued due to events beyond the Court’s control.3 On October 30, 2001, Davis filed a Motion for Immediate Restoration of Custody with the Family Court. Then on November 1,2001, Petitioner Davis filed her Petition for Writ of Mandamus, Writ of Habeas Corpus, or Other Appropriate Writ. In this petition, Davis informed this Court that on October 30, 2001, she was informed that the motion for immediate restoration of her children was scheduled to be heard on November 9, 200T along with the domestic violence allegations.

The Family Court had also informed us in their Motion to Vacate Order filed on November 6, 2001, that the hearing was continued to November 9, 2001, at which time the court would address the merits of the allegations of both parties. This Court has held that it will not intervene in procedural matters prior to trial unless the petitioner can show that fundamental rights are being denied. See Pino v. Bedonie, 7 Nav. R. 15, 16 (Nav. Sup. Ct. 1992). Although the hearing was scheduled three days beyond the 15 days as required by DAPA, it was not egregious as to violate Davis’ due process rights. Essentially, here Davis filed a petition for a writ prior to entry of a final order thereby using the proceeding as a substitute for appeal. We prefer to let the Family Court address errors before intervening as a matter of deference and efficiency. In this case we did not allow the Family Court to address the petitioner’s concerns although it was scheduled to do so.

Questions may arise as to why this Court granted the writ in the first place. Decisions considering requests for writs of mandamus and prohibition must he decided immediately as we did in this case. See Rule 26(a) of the Navajo Rules of Civil Appellate Procedure (NRCAP). Not only was this case filed as a Petition for Writ of Mandamus, Writ of Habeas Corpus, or Other Appropriate Writ, but child custody is in issue as well and cases dealing with child custody are given priority. See Rule 27 of the NRCAP.

When Davis filed her petition, she portrayed the matter as an emergency. She informed us that her children were removed from the only home they know and taken to another state. Davis did not inform us that the October 26, 200T hearing had been continued to November 9, 2001 although she was apparently informed prior to her filing the Petition for Writ of Mandamus, Writ of Habeas Corpus, or Other *291Appropriate Writ4

In retrospect, it may have been more reasonable to have denied the petition for a writ and ordered the court to hold a hearing immediately so as not to deny the Respondent’s due process rights. It would have been more appropriate for Davis to request the Court to reschedule the motion for Temporary Protection Order (TPO) immediately rather than filing a “Petition for Writ of Mandamus, Writ of Habeas corpus, or Other Appropriate Writ” with this Court. At any rate, this Court acted hastily in granting the request for a writ.

When a petition for an extraordinary writ is filed, the applicant is required to file copies of any order, opinion, or parts of the record which are necessary for an understanding of the matters set forth in the petition. In this case, the petitioner failed to file copies of the Answers she filed with the Family Court5 or information as to the procedural posture of the case. The trial court record would have given this court a better understanding of the nature of the dispute. It must he emphasized that from here on, Petitioners file with their Petition for a writ, copies of the official trial court record so this court can dispense of the case fairly, justly and without delay.

Whether it is appropriate for the Supreme Court to substitute its own findings of fact with those of the Family Court.

Finally, I agree with the Respondent Family Court that the Supreme Court is not in a position to substitute its own findings of fact for those of the Family Court. The record is sparse in this case and it was incumbent upon Davis to file the record. The majority has labeled the natural father, “putative father” so as to justify that he did not have standing to be awarded temporary custody of the minor children. Halloway is listed as the natural father on birth certificates registered with the State of New Mexico in May 1994 and 1996. The birth certificates were attached as Exhibits “A” and “D” to Davis’ petition for a writ.

The official court record and the transcript were not made available to us and we cannot assume that a legal determination was not made as to Halloway’s standing or as to his relationship to the minor children. Davis provided documents that are one sided and inflammatory, and this court reacted to her documents rather than remanding the case to the Family Court for a hearing on the merits. Because we are dealing with children’s rights and the trial judge is in a position to have a clearer grasp of the situation, this Court should defer to the trial court until the picture is clarified. See Benally v. Toledo, 3 N.L.R. 86, 86 (Nav. Ct. App. 1982).

*292CONCLUSION

This court was not provided a complete record of the trial court proceedings and we should not assume that there was no legal determination of paternity. There is evidence in the record that Halloway is the natural father, and that he has lived with Davis and the children. In this instance, requiring the Family Court to determine legal findings of paternity in an ex parte TPO proceeding when paternity was never challenged and when the matter is set for a hearing works to the detriment of the children and natural father. Upon a thorough review of the documents filed with this Court, I agree with the Crownpoint Family Court that the Supreme Court order dated November 2, 2001 should be vacated.

In his Petition for Domestic Abuse Protection Order and Motion for Temporary Protection Order filed on October 18,2001, Hyrum Halloway refers to the respondent as his common-law spouse. Seepage one of the petition.

As Petitioner Davis did not file the official record and transcript of the Family Court proceedings, if any, along with her petition, we do not have any information as to what testimony or evidence was provided at the TPO hearing.

On October2 5,2001, Chief Justice Yazzie issued a memorandum informing the courts that staff are granted administrative leave on October 26,2001 in recognition of “Spirit of the Navajo Nation: United We Stand Tribute.” The Courts and all the Navajo Nation offices were closed this day.

According to the Crownpoint Family Court, Corrina Davis had been provided notice that the October 26, 2oor hearing had been continued and rescheduled for November 9, 2oor. See page 10 of the Motion to Vacate filed on November 6, 2001. Davis also admits in her petition that the hearing had been continued to November 9, 2001.

On page two of the Motion to Vacate the Family Court informs us that “On October 22, 2002, Ms. Davis, pro se, filed an Answer to the Petition for Domestic Abuse protection Order.