3 NICS App. 335, Chacon v. Chacon (August 1994)

IN THE SHOSHONE-BANNOCK TRIBAL COURT OF APPEALS

FORT HALL RESERVATION

FORT HALL, IDAHO

Chacon v. Chacon

No. D-92-34/APP-94-04 (August 3, 1994)

SUMMARY

Appeal of Trial Court order granting divorce and awarding custody of minor child and child support to Plaintiff, with supervised visitation by Defendant. Plaintiff appeals the judgment on grounds that her attorney was not present at the hearing. Appellate Court remands to trial court for hearing and orders both parties to schedule twice weekly visitations with third-party supervision.

FULL TEXT

Before:            Justice David Harding.

Appearances:  Julie Nagashoah, attorney for the Plaintiff/Appellant; Robert Gonzales, attorney for the Defendant/Respondent.

NATURE OF ACTION

Plaintiff filed a petition for divorce in Shoshone-Bannock Tribal Court on September 17, 1992, and sought sole custody of and child support for couple's two minor children. Defendant was allowed supervised visitation. On March 28, 1992, Trial Court appointed defendant's parents guardians of the older child. Defendant did not appeal, but moved for joint custody of younger child.

Divorce Decree was filed on January 6, 1994. Defendant's attorney was present at the hearing; plaintiff's attorney was not. Trial Court awarded joint custody of the younger child and awarded child support to plaintiff.

Plaintiff filed her notice of appeal on February 22, 1994, appealing the January 6, 1994, order in its entirety, alleging that plaintiff's attorney had not been present at the custody hearing and, further, that the children would be in danger with defendant. Trial Court issued a stay pending appeal.

3 NICS App. 335, Chacon v. Chacon (August 1994) p. 336

HARDING, Justice:

The above entitled matter came on for Appeal Hearing on this 3rd day of August, 1994, and was heard by the undersigned Honorable Presiding Judge of the above entitled court. Present were Advocate for Plaintiff, Julie Nagashoah, and Advocate for Defendant, Robert Gonzales.

Court thanked every one for attending this hearing voluntarily and Court noted that the Advocate for Defendant, Robert Gonzales, did not receive his notice of hearing because it was returned back to Tribal Court for lack of proper postage.

Court informed the parties present that there was no Amended Divorce Petition attached to the appeal or filed and the Defendant was not present and Court requested Advocate, Julie Nagashoah, to Motion for the stay and remanded back to court for a hearing.

Advocate Robert Gonzales stated that no service was made on him regarding the Appeal or no certification was attached to Julie Nagashoah's appeal notice and also he wasn't aware of the appeal and the Defendant was not served with notice and would like to motion for a dismissal.

Advocate, Julie Nagashoah, stated that we need a court hearing on the issues and that her client wants her day in court so that evidence can be presented regarding the children.

Advocate, Robert Gonzales, I believe that his matter must be heard and Julie Nagashoah could have Motioned to vacate the Order signed by Judge Geneva Stump in her appeal and Julie need to perfect her appeal.

Advocate, Julie Nagashoah, stated that everyone knew about the appeal because the stay was in place in regards to the children.

Advocate, Robert Gonzales, stated that he was never informed of these matters happening and he feels procedurally that this matter need to be addressed.

Court informed the parties that there was a stay and the parties were aware of it and you were award of it.

Advocate, Robert Gonzales, stated "yes, some months later."

Court informed the parties that what we are trying to do here is to serve the parties in regards to this appeal and at the hearing yesterday the parties wanted a Trial De Novo on the divorce hearing and the amended Divorce Petition was not attached to the appeal notice and Court stated that this matter should be remanded back to court for a hearing, notwithstanding the service and we are leveling the playing field and we, the appeal court, cannot go ahead with this

3 NICS App. 335, Chacon v. Chacon (August 1994) p. 337

because of the lack of service and the court needs to hear this action and all pleadings need to be heard. Court also noted that one child is living with the Defendant's parents and that child support cannot be issued because the child is not in the mother's home and that needs to be amended before this goes back to trial.

Court questioned the Advocates if they agree to a third party monitoring visitations until this matter is heard.

Advocate, Julie Nagashoah, stated that there have been many accidents involving violence and lack of visits.

Advocate, Robert Gonzales, stated he was not aware of any accidents.

Advocate, Julie Nagashoah, stated that Social Services have been monitoring the visits that were made verbally between the parents.

Advocate, Robert Gonzales, stated that he was not aware that Social Services were involved in this matter.

Court informed the parties that we need to get all issues out and this matter must be resolved and recommends twice weekly visits with a third party present and it protects the parties equally. The hearing would include witnesses and testimony and Court would like to set this for trial as soon as possible and that a judge will be available and Court will issue an order for this matter to be remanded back to court and the Advocates to contact B.I.A. Social Services to be the third party in regards to visitations and that everyone will be served before they leave and Court informed the parties the procedures that need to be followed in regards to the importance of parent-child relationship.

IT IS HEREBY ORDERED, DECREED, ADJUDGED; that this matter D-92-34 be remanded back to court for a hearing on September 8, 1994, at 1:30 P.M.

IT IS FURTHER ORDERED; that both parties' Advocates to contact B.I.A. Social Services to set up twice weekly visitations with third party supervision and that this schedule be kept until the hearing on September 8, 1994.