Garcia v. Gutierrez

• Decision Date: 08 July 2008
• Docket Number: No. 26,484.,26,484.
• Citation: 192 P.3d 275,2008 NMCA 116
• Parties: Angelina GARCIA, formerly known as, Angelina Gutierrez, Petitioner-Appellee, v. Matthew GUTIERREZ, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

192 P.3d 275

2008 NMCA 116

Angelina GARCIA, formerly known as, Angelina Gutierrez, Petitioner-Appellee, v. Matthew GUTIERREZ, Respondent-Appellant.

No. 26,484.

Court of Appeals of New Mexico.

July 8, 2008.

Certiorari Granted, No. 31,263, August 25, 2008.

Atkinson & Kelsey, P.A., Thomas C. Montoya, Albuquerque, NM, for Appellee.

Michael Schwarz, Santa Fe, NM, for Appellant.

OPINION

ROBINSON, Judge.

{1} This case comes before us on appeal from a partial final order pursuant to a divorce between Angelina Garcia and Matthew Gutierrez. Gutierrez, who is a member of the Pueblo of Pojoaque, argued that the district court lacked subject matter jurisdiction over the issues raised in the petition as a matter of state law and that, even if the district court did have such jurisdiction under our state statutes, its exercise of jurisdiction was improper as a matter of federal Indian law. As we conclude that the district court had jurisdiction over those issues raised in the petition for dissolution of marriage that were unrelated to child custody, we affirm the district court's order as to those issues. The question of the district court's subject matter jurisdiction over the custody dispute requires this Court to determine whether land owned in fee by a non-Indian within the exterior boundaries of a pueblo is considered part of a "tribe" for purposes of determining the "home state" of a child under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), NMSA 1978, Sections 40-10A-101 to -403 (2001). As we conclude that such land is part of the tribe as that term is used in the UCCJEA, we hold that the district court erred in concluding that the children in this case had no home state and in finding that it, rather than the tribal court, had jurisdiction. Accordingly, we reverse the district court as to the custody matters and remand so that those claims may be dismissed.

I. BACKGROUND

{2} During their marriage, the couple and their two children lived for the most part on the Pueblo of Pojoaque. Garcia was physically abused by Gutierrez, and she decided to leave him on August 25, 2002. On that day, Garcia took the children and went to her father's house. That house is on land that her father owns in fee within the exterior boundaries of the Pueblo.

{3} When Gutierrez realized that Garcia had left him, he went to his father-in-law's house and got into an altercation with Garcia's brother and stabbed him. See State v. Romero, 2006-NMSC-039, ¶¶ 3, 26, 140 N.M. 299, 142 P.3d 887 (consolidating Gutierrez's state criminal case with that of another Indian defendant and discussing the ownership status of the land on which the stabbing occurred). Gutierrez was arrested and placed in the custody of the Santa Fe County Detention Center. The next day, on August 26, 2002, Garcia was awarded a temporary order of protection by the First Judicial District Court and was awarded temporary custody of the children.

{4} On October 9, 2002, Garcia filed a petition for dissolution of the marriage. Gutierrez moved to dismiss the case for lack of jurisdiction. The district court denied the motion. Gutierrez then filed a parallel case in tribal court and, on April 26, 2004, the tribal court awarded Garcia and Gutierrez joint legal custody over the children. Gutierrez sought to have the tribal court's order enforced by the district court, but the district court denied the motion. On September 30, 2005, the district court entered a divorce decree, indicating that there was no just cause for delay in entering the decree. See Rule 1-054(B)(1) NMRA (indicating that "when more than one claim for relief is presented in an action ... the court may enter a final judgment as to one or more but fewer than all of the claims only upon an express determination that there is no just reason for delay"). Gutierrez did not appeal from this order. On January 11, 2006, the district court entered findings of fact and conclusions of law, stating that it had subject matter jurisdiction over the dissolution of the marriage, as well as over issues of custody, child support, distribution of assets and debts, and attorney fees. The district court accepted the parties' stipulation as to property, debts, and child support, but did not make any determination as to the custody of the children. The court entered a "Partial Final Order" on January 19, 2006, adopting its findings of fact and conclusions of law, stating that there is no just reason for delay in entering the order. See Rule 1-054(B)(1).

II. DISCUSSION

{5} Gutierrez appeals from the district court's January 19 order. He argues that the district court had no jurisdiction over the petition for dissolution of marriage under NMSA 1978, Section 40-4-5 (1977); that the district court had no jurisdiction under the UCCJEA; and that, even if jurisdiction in state court was appropriate under state law, the tribal court had exclusive jurisdiction as a matter of federal Indian law because the district court's exercise of jurisdiction over this matter infringes on the sovereign rights of the Pueblo.

A. Standard of Review

{6} We review de novo the district court's conclusion that it had subject matter jurisdiction over the issues raised in this case. See Smith v. City of Santa Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 ("[T]he question of whether a trial court has jurisdiction in a particular case is a question of law that we review de novo.").

B. Jurisdiction Under Section 40-4-5

{7} Gutierrez claims that the district court did not have jurisdiction over the dissolution petition under Section 40-4-5, which governs jurisdiction in divorce cases. Gutierrez did not appeal from the final order dissolving his marriage that was entered on September 30, 2005. Furthermore, he concedes that this order, containing the decretal language that there is "no just cause for delay," was a final order. As the propriety of this order is therefore not before us, we will not decide whether the district court had jurisdiction to dissolve the marriage by entering the divorce decree. Nevertheless, the order from which Gutierrez does appeal, entered on January 19, 2006, resolves other issues that were raised by the dissolution petition. Therefore, we believe that we must determine whether the district court had jurisdiction to decide the issues resolved in the order of January 19, 2006.

{8} Section 40-4-5 provides:

The district court has jurisdiction to decree a dissolution of marriage when at the time of filing the petition either party has resided in this state for at least six months immediately preceding the date of the filing and has a domicile in New Mexico. As used in this section, "domicile" means that the person to whom it applies:

A. is physically present in this state and has a place of residence in this state B. has a present intention in good faith to reside in this state permanently or indefinitely[.]

{9} Once the district court determines that it has jurisdiction to dissolve the marriage under Section 40-4-5, it is also authorized to make decisions regarding child custody, the division of property, and other issues related to the dissolution. NMSA 1978, § 40-4-7 (1997). However, since jurisdiction over child custody issues when there is a jurisdictional conflict is determined by the UCCJEA as the more specific statute, see Compton v. Lytle, 2003-NMSC-031, ¶ 16, 134 N.M. 586, 81 P.3d 39 ("[W]here two statutes conflict, the specific governs over the general."), we only determine whether Sections 40-4-5 and -7 granted the district court jurisdiction over the issues raised in the petition that were unrelated to child custody.

{10} Here, it is undisputed that both Garcia and Gutierrez lived within the exterior boundaries of the State of New Mexico for the six months preceding the filing of this action. Garcia lived on the Pueblo and then on her father's fee land within the Pueblo's exterior borders, and Gutierrez lived on the Pueblo and then in the Santa Fe County Detention Center. However, Gutierrez argues that because both he and Garcia lived within the boundaries of the Pueblo for some portion of that six-month period neither one met the requirement of Section 40-4-5 that they reside in the state for a minimum of six months. We disagree. Tribal lands within a state are generally considered to be part of a state's territory, see Nevada v. Hicks, 533 U.S. 353, 361-62, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), and unlike the UCCJEA, which we discuss later in this opinion, nothing in Section 40-4-5 suggests that tribal land within New Mexico is not part of the state for the purpose of determining jurisdiction. Accordingly, we conclude that the district court had jurisdiction over the dissolution of the parties' marriage under Section 40-4-5.

C. Whether Jurisdiction Under Section 40-4-5 Infringes on Tribal Sovereignty

{11} Even if state court jurisdiction over the non-custody issues in this case is proper under state law, it may be impermissible under federal law if it infringes on the rights of pueblo members to make their own laws and be ruled by them. See Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). While it is not entirely clear whether Gutierrez intends the arguments he makes in his briefs regarding infringement to apply to the district court's assumption of jurisdiction over issues other than child custody, an appellate court has a duty to determine whether it has jurisdiction on appeal, and so we address the question of jurisdiction as it applies to the non-custody issues even if that question is raised sua sponte. See Smith, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300 ("[I]t is incumbent upon the appellate court to raise jurisdiction questions sua sponte when the Court notices them.").

{12} Garcia argues that Gutierrez is without standing to raise any claim of tribal sovereignty, apparently because she believes that it is the tribe alone that may raise such...