Burnside v. Burnside, (1990)

• Decision Date: 19 October 1990
• Docket Number: TC-CV-073-87,TC-CV-025-84
• Citation: Burnside v. Burnside (Family Ct. of the Navajo Nation 1990)
• Parties: EDISON BURNSIDE, PLAINTIFF, v. GENEVIEVE BURNSIDE, DEFENDANT.
• Court: Family Court of the Navajo Nation

EDISON BURNSIDE, PLAINTIFF, v. GENEVIEVE BURNSIDE, DEFENDANT.

Nos. TC-CV-073-87, TC-CV-025-84

Family Court of the Navajo Nation Judicial District of Tuba City, Arizona

October 19, 1990

ORDER

JUDGE WAYNE CADMAN, SR. PRESIDING.

This matter having come before the Court on June 7, 23 and 24 1988 for final hearings with the plaintiff represented by Gary LaRance, and the defendant represented by Timothy Joe and subsequently Steven Boos of the Mexican Hat D.N.A., the Court upon review of the oral testimony and physical evidence presented, hereby finds:

FINDINGS OF FACT

1.This matter stems from a Petition for Modification of Child Custody, Contempt, and Accounting filed by the plaintiff on February 23, 1987.

2.Plaintiff and defendant stipulated to A) the Court's continuing Jurisdiction as it arises from a Divorce Decree issued on February 20, 1985, B) that the physical custody of the three minor children were awarded to the defendant, and C) that the plaintiff was granted visitation rights.

3.The Court further took Judicial notice of A) the Order for Pendente Lite visitation of December 5, 1984 issued by the Honorable Robert Walters, B) the Marital Settlement Agreement which was incorporated into the February 20, 1985 Divorce Decree issued by the Honorable Robert Walters, C) the October 31, 1986 Order issued by the Honorable Evelyn Bradley, D) the December 1, 1986 Attachment Order issued by the Honorable Evelyn Bradley, and E) the August 4, 1987 Order issued by the Honorable Wayne Cadman, Sr.

4.The minor children at issue in this cause of action are: Shannon Burnside, DOB: 05/28/76, C#619,435; Tom Burnside, DOB 10/19/79, C#623,282; and Rochelle Burnside, DOB: 09/20/81 C#625,896.

5.The Marital Settlement Agreement established a savings account in the amount of $5,000.00 with the Valley National Bank in Page, Arizona under Account # 31337968 for the sole use of the minor children for their education and in case of emergencies with all withdrawals to be consented to by both parties.

6.Shannon Burnside is a thirteen year old Navajo child who presently resides with her siblings, natural mother Genevieve (Burnside) Black, and stepfather Roy Lee Black in Shonto Arizona.She is enrolled with the Kayenta Unified School District and is in the seventh grade.

7.Tom Burnside is a ten year old Navajo child who also resides with his siblings, natural mother and stepfather in Shonto, Arizona and is enrolled with the Shonto Boarding School and is in the fourth grade.

8.Rochelle Burnside is an eight year old Navajo child who also resides with her siblings, natural mother and stepfather in Shonto, Arizona and is enrolled with the Shonto Boarding School and is in the second grade.

9.Genevieve (Burnside) Black is a thirty-three years old Navajo mother who was previously married to Edison Burnside and was divorced on February 20, 1985.Mrs. Black is presently employed with the Shonto Boarding School and has been for the past thirteen years.She has been with Facility Maintenance since February 1988 with an income of $7.50 per hour with forty hour work week and works from 8:00 A.M. to 5:00 PM. daily.Mrs. Black presently resides with her three children from her marriage to Edison Burnside, her two children from Roy Lee Black, who are three and two years old, and her husband in a three bedroom government house in Shonto, Arizona.Mrs. Black is a member of the Native American Church and is a member of the Board of Directors from District 8 of the Association.

10.Roy Lee Black is a thirty-three years old Navajo male married to Genevieve Black from Long House Valley.Mr. Black presently resides with Genevieve Black, the three Burnside children, and his two children from his present marriage in Shonto, Arizona.Mr. Black is presently employed by Peabody Coal Company and earns an income of $16.65 per hour with an average of thirty-six hour work week.Mr. Burnside met Genevieve Black in September of 1984 and were married on October 20, 1986.

11.Edison Burnside is thirty-seven years old and is the natural father of Shannon, Tom, and Rochelle Burnside.Mr. Burnside presently resides in Page, Arizona and is employed by Peabody Coal Company at the Black Mesa Mine as an Electrician and earns an income of $18.17 per hour with an average work week of forty hours.He works from 12:00 midnight to 8:00 A.M.Mr. Burnside presently resides with Gracie Bileen at his trailer in Page, Arizona.

12.Edison Burnside has an Associate of Arts Degree in Electronics and resides in a two bedroom trailer in Page, Arizona and that photographs of the interior show that the trailer is well furnished with expensive pieces of furniture.

13.Gracie Bileen is a thirty-six year old Navajo woman with four children, the oldest being twenty-three years and the youngest being six years old.The oldest daughter is presently caring for her three siblings in Teec Nos Pos, Arizona and does not live with her and Edison Burnside.Ms. Bileen met Edison Burnside in 1987 and began cohabitating with him since 1987.She is presently employed by two restaurants in Page, Arizona.

14.Kathryn Tsosie of Chinle Navajo Division of Social Welfare Office submitted a written Social Investigation on June 6, 1988 listing her interviews, findings and six recommendations to the Court.

15.The Social Worker defined the "Alignment Principle" as one parent aligning a child's thoughts and actions to diminish relations with the other parent.

16.Edison Burnside, since December 14, 1984 to the most recent attempted visitation on August 14, 1988, has made approximately 14 attempted visitations only to be informed by Mrs. Black that the children did not wish to see him, and she would not force them to see him.

17.It is apparent that the parties had bitter feelings toward each other during the divorce and that these feelings continued after the divorce.These feelings are evidenced by arguments ensuing between the parties during visitations and at times in front of the children.

18.These arguments often stem from the time when the parties separated in July of 1984 when Mr. Burnside had the electricity disconnected and took a washing machine and other household items.At this time, the children were eight, four and two years old respectively.Police officers were sometimes called for assistance when the parties began arguments or disputes over visitation by the plaintiff which often resulted in the plaintiff being advised to take the matter back to Court.

19.Since Mrs. Black has two younger daughters by her present marriage, a baby-sitter comes daily when the Blacks are working until she returns after 5:00 EM.The three Burnside children are normally in school from 8:30 A.M. to 3:30 P.M. daily.

20.The Blacks have stressed the importance of Navajo traditions and culture and presently teach them to the Burnside children and their own children.At times, the children are taken to their grandparent's home to visit and herd sheep.

21.The Burnside children have accepted Roy Lee Black as their father and refer to him as "father" and "daddy," and their relationship is good.Mr. Black also provides for the family needs and attends parent meetings held at the school for the Burnside children.

22.During the visitations made by Edison Burnside, the children became disturbed and frightened and refused to see their natural father.These fears were often aggravated by the presence of police officers called for assistance by the defendant and by the arguments and verbal confrontations.

23.The observations by the relatives of Genevieve Black, the Burnside children's teacher, and the Social Worker in her report all indicated that Mrs. Black was a caring mother and provided for the needs of the children.

24.Edison Burnside never hurt the children during their marriage, aside from normal spanking for discipline.

25.Edison Burnside indicated that if the children are placed in his home, his working hours would not conflict with being away from the children as they would be asleep from midnight to the early morning hours.Gracie Bileen would be available to see them off to school.Mr. Burnside stated that he planned to enroll the children in the Page Public Schools.

26.Mrs. Black's criminal history reflects only two convictions for speeding with the most recent offense in May of 1984.Mr. Burnside's criminal history record reflects ten convictions for speeding and one pending with the most recent case being in October 1989.

27.On September 13, 1985, Genevieve Black withdrew $5,076.72 from the Valley National Bank in Page, Arizona which was to be used for the education of the children and for emergencies as stipulated in the Marital Settlement Agreement, and without the consent of the plaintiff.Mrs. Black alleges to have deposited the money into the Coconino Federal Credit Union in Flagstaff, Arizona but refuses to specify the amount or account number.Some of the money was also alleged to have been used for clothing purchases for the children, but Mrs. Black failed to produce any receipts or supply an itemized accounting with amounts to the present date, even though an Interim Order of July 27, 1988 ordered Mrs. Black to: A) disclose how the money was used upon withdrawal; and B) show the current balance on deposit at Coconino Credit Union no later than July 8, 1988.

28.The first attempts at visitation by the plaintiff were on December 14, 1984 and December 21 - 25, 1984, but were denied due to no one being home at the Black's residence even though the defendant had prior knowledge of Court Ordered visitation in accordance with the Pendente Lite Order for Visitation issued by the Honorable Robert Walters on December 4, 1984.

29.A third scheduled visitation on February 9, 1985...