|| Case No.
|| OPINION AND ORDER
FACTUAL AND PROCEDURAL BACKGROUND
The proceedings arose from a petition for dissolution of a marriage, the
contested custody of three minor children and the division of community
property and determination of child support obligations.
The relevant segment of the proceedings begin with Appellant's 1/07/99
filing of an answer and response to the Appellee's motion for dissolution of
marriage. The answer and response included specific counterclaims to the
Appellee's motion for dissolution of marriage in relation to custody of the
minors and division of communal property.
The answer and response filing required a fee. The appellant upon
attempting to file stated he would need to retrieve the fee amount and return
to file. Appellant alleges he did so five minutes after the close of business
hours on the last day within which he could timely file. However, Appellant
has no receipt as evidence of this transaction and there is no computer entry
reflecting the payment.
At a hearing on 3/26/99 the Appellee made a motion asking the court to
reject the appellant's answer and response to Appellee's motion for
dissolution of marriage on the ground that the filing fee had not been paid
and the answer and response was thus not filed in a timely manner. The court
granted the motion and dismissed the answer and counterclaim on the grounds
that there was no computer entry reflecting payment of the fee.
In the order issued three days later the court invited the Appellee to move
the court for a default judgment. Appellee made the motion for default
judgment. Notice of a default hearing was issued, the date set for 4/27/99 and
subsequently continued to 5/24/99.
On 5/17/99 the appellant filed a motion for reconsideration asking for
reinstatement of his answer and counterclaim. The motion also requested the
matter be set for jury trial. On 5/24/99 the matter came before Judge Thomas
who noted that the matter could be continued to a later date if there were
objections to his presiding ova the proceedings. The Appellee did object and
the matter was reset for 5/26/99.
At that time the court denied appellant's motion for reconsideration and
entered the Appellee's motion for default judgment. Appellee further requested
a continuance in order to better prepare. The Appellant objected, requesting
that the matter not be again continued. The Appellee then made a motion that
the court reject Appellant's request on grounds that in light of the court's
finding that he had failed to file an answer and response in a timely fashion,
Appellant had no further standing to participate in the proceedings. The court
granted the motion.
The court granted the motion for default judgment in favor of the
Appellant prays the court grant his writ of mandamus (extraordinary
writ) pursuant to Hopi Rule 35 of the Hopi Indian Rules of Civil and
Criminal Procedure (HIRCCP). As grounds the Appellant claims the trial court
abused its discretion in granting a default judgment in a marital
dissolution for failure of the Appellant to pay a filing fee.
Appellant's petition is substantively inadequate.
DECISION OF THE COURT
I. APPELLANT'S PETITION FOR EXTRAORDINARY WRIT RELIEF FAILS TO MEET THE
Appellant filed a petition for extraordinary writ praying relief from a
default judgment that had yet to be finalized. This pre-emption of the lower
court and failure to exhaust the remedies at the lower court level render the
petition inadequate on substantive grounds. Appellant argues that this Court
has jurisdiction to grant injunctive relief in the form of an extraordinary
writ under Honie v. Hopi Tribal Housing Authority, 96AP000007 (November
20, 1998.) We disagree.
A. Substantive Requirements.
Under both Hopi and U.S. law there are two substantive requirements for an
extraordinary writ. Primarily, a specific grounds for which such relief can be
granted must be present. (HIRCCP, Rule 35(a).) Next, the Appellant must have
no other "plain, speedy and adequate remedy" for obtaining the
relief sought. (Id.)
i. The Specific Grounds.
Appellant asserts he is entitled to relief in the form of an extraordinary
writ on the grounds that the trial court abused its discretion in granting
appellee a default judgment.
As authority Appellant cites this Court's decision in In re The Marriage of
Myron AP-006-94 (March 27, 1995.) Abuse of discretion is one of the four specific grounds for which an
Extraordinary Writ may be granted. (HIRCCP, Rule 35(2).) The Code states that
a writ may be granted "where an inferior tribunal... exercising judicial
functions has exceeded its jurisdiction or abused its discretion." (Id.)
Thus Appellant's petition for Extraordinary Writ relief satisfies the first
part of the substantive requirement for such relief asserting a ground for
which such relief can be granted.
ii. No Other Plain, Speedy and Adequate Remedy Available.
Appellant clearly had several remedies available to him at the lower
level and with
this court before needing to resort to a petition for extraordinary writ.
Appellant's primary remedy at the trial court level was to file a motion with the lower court
seeking relief from
the default judgment below pursuant to HIRCCP Rule 30 (b)(7.) Had the motion
vacate been denied, Appellant could then have appealed to this court pursuant
37 (b). In the interim, Appellant had the option of filing a motion to stay
judgment until conclusion of the appeals process. (HIRCCP Rule 37 (f))
related to the contested custody arrangement, the Appellant could have moved
immediately to alter or amend the arrangement in "furtherance of
justice-" (HIRCCP Rule
Appellant chose to circumvent all of these remedies on two basis, (1) that
the subject matter justified circumvention, and (2) under Honie the
Appellate court can take jurisdiction over a case without the aggrieved patty
awaiting a final judgment from the trial court much less exhausting the
available remedies. (Oral Argument May 25,1999.) We find that neither basis is
1. The subject matter does not excuse the Appellant from
exhausting the available remedies.
Appellant claims that the involvement of minors renders exhaustion of the
available remedies untenable. He contends that in light of his assertions of
child neglect by appellee (the custodial part) Appellant is excused from
meeting the second requirement for wait relief; that, "no other plain,
speedy or adequate remedy" exist. (See Infra.) We disagree.
As noted above, Appellant could have moved the court immediately
default hearing to alter or amend the custody arrangement in "furtherance
of justice" under HIRCCP Rule 30 (b)(7). Failure to do so was unreasonable.
2. Honie does not excuse Appellant from exhausting the
Section 1.2.5 of Hopi Ordinance 21 sets forth the general jurisdictional
limitations of this Court and provides that this Court shall have jurisdiction
to hear appeals from final judgments and other final orders of the Tribal
Court of the Hopi Tribe.
In Honie this Court acknowledged that Hopi Ordinance 21 does not
"provide this Court with jurisdiction to entertain interlocutory
appeals." (Honie at 5.) However it took jurisdiction because the case
"involved an issue of great public concern... specifically the issue of
land use assignment decisions by the villages and the de facto recognition and
certification of such decisions by the trial courts." (Id. at 6.)
This contrasts sharply with the present case in two ways. In Honie the
case involved an appeal claim based on an issue of public policy. Appellant
here does not claim that, like Honie, the issue upon which this appeal
is based is an issue of public policy 5
warranting this Court's taking jurisdiction where it normally would not.
Appellant claims only that he is aggrieved with the trial courts decision and
this Court should grant him relief.
We decline to do so. Any other decision would welcome a barrage of petitions
stemming from other cases, with similarly limited public policy ramifications.
It would greatly undermine the rules of this Court. It was for this reason
that in Honie we specifically noted that, "liberal construction of the
rules, as in the instant case, will be sparingly exercised by this Court...
parties and practitioners should follow the proper procedures set forth in the
HIRCCP " (Id. at 7.)
The case at bar also differs from Honie in a second respect. Honie
only a question of law. The aggrieved party was appealing for review of the
trial court's execution of a village decision recognition and certification
process. (Id. at 6.) The writ in Honie asked only that this Court determine whether
under the law the trial court had done so inadequately, no facts vis a vis
the village decision in question were vital to that determination. (Id. at 7.)
In contrast, Appellant here requests that we consider the facts he was unable
to present at the trial court level because his answer and response was
untimely filed, and upon the basis of those facts grant him his requested
relief. It is not the role of this Court to determine the facts of a case.
does not create an exception to the usual rule that
one must await final judgment before an appeal will lie. It created a narrow
exception based on a case which presented a serious issue of public policy and
which did not require this court to engage in fact-finding. The case at bar is dissimilar. It does not present
any serious issue of public policy and it asks specifically that this court
behave as a fact finding entity.
In Honie this Court admonished that the "liberal
construction" of the procedural rules which was taken in that case, would
be "sparingly exercised" by this Court. It is within the discretion
of this Court to find that a case does not justify such construction and we so
find in relation to this case.
It is the opinion of this Court that the appropriate procedure in this matter
would have been for Appellant to move the trial court for reconsideration of
the default judgment below, then appeal the denial (if appropriate) of the
motion to reconsider.
In pre-empting a final judgment by the lower court and failing to exhaust
the remedies available through the lower court and the appeals process,
Appellant has failed to satisfy the substantive elements required for granting
of his petition for extraordinary writ.
ORDER OF THE COURT
The Petition for Extraordinary Writ is DENIED.
Emory Sekaquaptewa Dated
Fred Lomayesva Dated
Jay Abbey Dated