Bustamante v. Joaquin, (2024)

• Docket Number: AV2023-0120
• Decision Date: 01 April 2024
• Citation: Bustamante v. Joaquin, 4 TOR3d 247, AV2023-0120 (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division Apr 01, 2024)
• Parties: Elliott Hector Bustamante, Petitioner v. Anika Nerisse Joaquin, Respondent In re Aracelli Elise Bustamante, DOB 03/07/2017, a minor child
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

4 TOR3d 247

Elliott Hector Bustamante, Petitioner v. Anika Nerisse Joaquin, Respondent

In re Aracelli Elise Bustamante, DOB 03/07/2017, a minor child

No. AV2023-0120

Judicial Court of the Tohono O'odham Nation Adult Civil Division

April 1, 2024

ORDER REGARDING LEGAL DECISION-MAKING, PARENTING TIME AND CHILD SUPPORT

JOSEPH HARDY, JR. JUDGE

A bench trial was held on March 20, 2024 on the issues of legal decision-making, parenting time, and child support.The Court previously established jurisdiction and paternity.

Elliott Hector Bustamante, Petitioner, and Belinda BreMillerPetitioner's Attorney, appeared.Anika Nerisse JoaquinRespondent, and Kristin Fitzharris, Respondent's Attorney, also appeared.

To the extent any rulings in this Order conflict with any rulings made from the bench, this Order controls.

I.WITNESSES

A.Petitioner called the following witnesses:

• Anika Nerisse Joaquin

• Elliott Hector Bustamante

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After hearing argument on Respondent's motion to exclude testimony from Petitioner's mother(Francine Toro), the Court first decided to apply Arizona Rules of Evidence, Rule 403. pursuant to Tohono O'odham Rules of Court, Section 1,Rule 1, finding no applicable or conflicting Tohono O'odham laws or rules, and that Rule 403 would be "applicable to the facts and circumstances of [this] case".Id.

Arizona Rules of Evidence, Rule 403 provides:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Petitioner stated that Ms. Toro would testify as to the relationships between Petitioner and Respondent, and between Petitioner and their child.The Court found both relevant.

However, the Court also found that the probative value was weakened due to the witness's relationship to the Petitioner(mother).The Court further found that the probative value would be substantially outweighed by (i) unfair prejudice if the trial went forward now, since Respondent had only been made aware of this witness five days before the trial, on March 15, insufficient time to contact the witness and/or anticipate and prepare potential cross examination, and (ii) undue delay if the trial were to be continued for Respondent to make such preparation.

Supporting both reasons were the facts that (i)Petitioner acknowledged knowing about the witness earlier but inadvertently omitted her name in the Pretrial Statement and in the Amended Pretrial Statement; (ii)Petitioner did not disclose the witness until nine days after the (extended) final disclosure deadline, five days before the trial, and (iii)Petitioner had several chances to cure that, such as when the final disclosure date was extended from January 19, 2024 to March 6, 2024, and especially when Petitioner filed an

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intended Pretrial Statement on February 7, 2024, which was a modified reprint of the original Pretrial Statement that included Petitioner's witness list.

Accordingly, the Court ruled that the trial would go forward without Ms. Toro's estimony.However, the Court set a thirty-minute evidentiary hearing for April 3, 2024, at 11:30 a.m. to allow Ms. Toro to testify (after sufficient time for Respondent to contact her ind/or prepare cross-examination)IFthe Court had not issued this Order by then.

The Court has issued its Order before that date and therefore vacates the April 3, 1024, 11:30 a.m. hearing.

Later in chambers, the Court found further support for its decision with Tohono O'odham Rules of Civil Procedure, Rule 14.4(a)(1)("Unless a party shows good cause, heCourt-on motion or on its own-must enter such orders as are just if a party or counsel: (1) fails to obey an initial or pretrial order or fails to meet the deadlines set in the order").

B.Respondent called the following witnesses:

• Kirkland Pedro

• Malika Hogan

• Alma Johnson Juan

• Anika Nerisse Joaquin

II.EXHIBITS

A.The Court admitted the following exhibits from Petitioner:

1.Plea Agreement

2.Anger Management Certificate

3.Trial Record Entry

4.Minor's School Records of Attendance

6.Messages ref. Visits (overruling Respondent's objection based on irrelevance)

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7.Child Support Worksheet

8.Petitioner's Paystubs

9.Gender Neutral Power Wheel

12.Update to School Records

13.Information re.Payments (overruling Respondent's objection based on irrelevance & Tohono O'odham Family Law & Will Procedures Rule 2.9"child support award is to be paid in money.Gifts of clothing, etc. in lieu of money are not to be offset against the support except by court order."(emphasis added), finding that there has not yet been any award or court order, and past support, in whatever form, relevant to determine such an award and court order here)

14.Auto purchase and accident info (overruling Respondent's objection on the same bases, for the same reasons, as for Petitioner's Exhibit 13)

15.Photos of child's room at dad's

B.After argument, the Court excluded the following Petitioner exhibits on the following bases:

5.Letter re. housing: hearsay

10.Trauma caused by separation of children from parents: Respondent objected on relevance, withdrawn by Petitioner

11.PSA flyer re domestic violence: Respondent objected on relevance, withdrawn by Petitioner

C.The Court admitted the following exhibits from Respondent:

A.Copy of Child's Birth Certificate

B.Copy of Anika Joaquin's Tribal ID card

C.Copy of Application for Enrollment in the Tribe for child 7/17/17

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D.Copy of child's social security card, which the Court orders sealed-both the copy submitted at trial, and the copy submitted as Exhibit D to Respondent's Pretrial Statement tiled 1/19/2024.

E. Tohono O'odham Nation Police Department Report 220213029 dated 2/13/23

F. Anika Joaquinpay stubs for August 25-September 21, 2023

G.Arizona State Worksheet for Child Support Amount1/19/2024

H. Tohono O'odham Worksheetfor Child Support Amount 01/19/2024

I.Background check for Elliot Bustamante(overruling Petitioner's objections based on not best evidence and not providing context)

J.Plea AgreementCR2022-0107-1-2

K.Trial Record EntryCR2022-0107-1-2

L.Trial Record EntryCR2021-0364-2/4

The Court also overruled Petitioner's group objections to Respondent's Exhibits I-L on the grounds of cumulativeness and inconsistency, finding (i) no inconsistencies among them, and (ii) enough differences among them to provide helpful presentation of information, without "needlessly presenting cumulative evidence" that would substantially outweigh their probative value.SeeArizona Rules of Evidence, Rule 403.

III.LIMITED USE OF ARIZONA LAW

In civil cases, this Court must apply the following sources of law, in the following order of precedence: The Tohono O'odham Constitution, the Nation's laws and ordinances, and the Nation's customs.4 T.O.C. ch. 1, § 1-102.

If there is no such law or custom on point, the Courtmay, in its discretion, look to Arizona law for guidance.Id.

As announced at trial, the Court agrees with the suggestion in Petitioner's pretrial statement, supported by this Court's precedent, that it look to A.R.S. § 25-403 and consider

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factors listed there (and all other relevant factors) to determine the best interests of the child when deciding legal decision-making and parenting time.

Both parties also heavily argued A.R.S. § 25.403.03 in their pretrial statements, but did not explain why the Court should look to it.At trial, Respondent persuasively argued that, like A.R.S. § 25-403, there is no comparable Tohono O'odham law, or custom (known to the parties or the Court), and that it ties in helpfully with A.R.S. § 25-403's best interest of the child standards where there has been domestic violence, as there has been here.Accordingly, the Court agreed it would look to A.R.S. § 25.403.03 for guidance as well.

However, the Court admonished it likely would not fully adopt A.R.S. § 25-403.03, seeing issues with its rebuttable presumption against decision-making in one section based on domestic violence limited to certain instances that seem quite significant (sexual assault, serious physical injury, placing in apprehension of imminent serious physical injury), yet almost forcing such categories to be labeled "insignificant" because they are separate from the more drastic full preclusion in another section based on "significant domestic violence" or a "significant history of domestic violence", both of which are undefined, but specifically include crimes as seemingly minor as disorderly conduct by "unreasonable noise".SeeA.R.S. §§ 25-403.03(A) & (D)1-2,13-3601, & 13-2904.A.2.Even more confusing, sexual assault and aggravated assault (serious physical injury) are included in both the "significant" and "insignificant"sections of A.R.S. § 25-403.03.

After researching Arizona case law on that statute, this Court confirms its conclusion.See, e.g., Deluna v. Petitto,247 Ariz. 420, 422(Ct. App.2019)("At times, [A.R.S. § 25-403.03] and amendments have been imprecise or lack definitions of critical terms, leading to confusion and unintended errors by the superior court in applying the law to the facts of the particular case, sometimes resulting in inconsistent rulings that do not fulfill the statutory mandate.").Further, while a number of unpublished decisions addressed

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the term "significant history of domestic violence," none provided much guidance on what that means; only that the trial court has wide discretion to decide, Accordingly, pursuant to 4 T.O.C. ch. 1, § 1-102, this Court,...