1

Certiorari Granted, June 14, 2013, No. 34,150

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-070

Filing Date: March 13, 2013

Docket No. 30,447 consolidated with No. 31,491

AGALELEI KIMBRELL, also known as

LILY KIMBRELL, by and through

her next friend and parent 

W. DAVID KIMBRELL,

Plaintiff-Appellant,

v.

LORRAINE KIMBRELL and

KATHRIN M. KINZER-ELLINGTON,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Sarah M. Singleton and Barbara Vigil, District Judges

Gary W. Boyle

Santa Fe, NM

for Appellant

Stiff, Keith & Garcia, LLC

Ann L. Keith

Albuquerque, NM

Michael Schwarz

Santa Fe, NM

for Appellee Lorraine Kimbrell

Riley, Shane & Keller, P.A.

Courtenay L. Keller

Kristin J. Dalton
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 We note that this is not the first appeal in this contentious divorce case. See

Kimbrell v. Kimbrell, No. 29,752, slip op. (N.M. Ct. App. Mar. 31, 2010) (discussing

2

Albuquerque, NM 

for Appellee Kathrin Kinzer-Ellington

Kathrin Kinzer-Ellington, LLC

Kathrin Kinzer-Ellington

Santa Fe, NM

Guardian ad Litem

OPINION

HANISEE, Judge.

{1} David Kimbrell’s (Father) consolidated appeals arise from divorce and child custody

proceedings that began in May 2006 between Father and Lorraine Kimbrell (Mother).

Father first appeals the district court’s dismissal of a separate tort action brought by Father

on behalf of his eldest child (Daughter) against both Mother and the Guardian Ad Litem (the

GAL). Father also appeals the district court’s order requiring him to remove a document

discussing the GAL from his website and enjoining him from republishing the material. We

affirm in part and reverse in part the district court’s dismissal of the tort action, and reverse

and remand the district court’s order with respect to the website for findings regarding

defamation.

I. BACKGROUND

{2} At the time divorce proceedings commenced, Mother and Father had four children

(the Children), including Daughter. A year into the divorce case, at Father’s request, the

district court appointed the GAL to represent the interests of the Children. Shortly

thereafter, the GAL issued her report and recommendations in which she advised reinstating

contact between Mother and the Children, as well as placing one of the Children with

Mother. With some modifications, the court largely adopted the GAL’s recommendations.

Thereafter, Father became displeased with the GAL and the court’s order. During the

following three years of highly contentious custody proceedings, Father made five attempts

to have the GAL removed. Each request was denied by the district court. Father also filed

two lawsuits against the GAL, one in federal court in June 2009, and another shortly

thereafter in state district court. In addition, Father filed complaints against the GAL with

the Disciplinary Board of the New Mexico Supreme Court. Father’s lawsuits were

subsequently dismissed. On appeal, we evaluate the dismissal of the latter lawsuit and

proceedings related to Father’s internet publication of material related to his case.1
Father’s appeal of the district court’s rulings on spousal support, child support, termination

of joint custody, procedural matters, and contempt sanctions).

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{3} The lawsuit at issue was brought by Father on behalf of Daughter as her next friend

and parent against both Mother and the GAL, naming the GAL in her capacity as guardian

ad litem. The complaint alleged that Mother battered, assaulted, and intentionally inflicted

emotional distress on and committed prima facie tort against Daughter and that the GAL

intentionally inflicted emotional distress on, breached her fiduciary duty to, invaded the

privacy of, and committed prima facie tort against Daughter. Mother and the GAL moved

to dismiss the suit, arguing that Father lacked standing to sue on behalf of Daughter and that

the GAL was immune from suit. The district court granted the motions to dismiss,

concluding that Father lacked standing to sue Mother and the GAL. Father now appeals

from this dismissal.

{4} After bringing the state lawsuit, Father filed his fifth and final motion to remove the

GAL in district court in January 2010. In March 2010, Father, through his attorney, filed his

first disciplinary complaint against the GAL with the Disciplinary Board of the New Mexico

Supreme Court, alleging that the GAL had engaged in unprofessional conduct. The

Disciplinary Board conducted an investigation and determined that the GAL had not

engaged in unprofessional conduct and that the complaint was without merit. In May 2010,

the district court denied Father’s fifth motion to remove the GAL. In its written order of

denial, the court found that (1) Father’s motion to remove the GAL raised issues previously

addressed by the court; (2) the motion was an attack on the GAL’s ability to represent the

Children; (3) Father inappropriately viewed the GAL as an opponent; (4) Father’s continuing

attacks on the GAL were becoming problematic for the administration of justice; and (5)

Father’s continuing attacks on the GAL had become abusive and unfair. The district court

ordered both Father and his attorney to refrain from filing any complaint, motion, or other

“device” pertaining to the GAL without leave of the court.

{5} In July 2010, Father sought permission to file yet another disciplinary complaint

against the GAL. Rather than directly denying Father’s motion, the district court entered a

preliminary injunction that again reprimanded Father for “improper” behavior and

additionally prohibited Father from communicating with the media, the Department of

Justice, or the Children’s biological parents regarding his complaints about the GAL. Father

then circumvented the district court’s initial order, which prohibited Father from filing any

pleading or device against the GAL, by forming and acting through an organization he

named “Stop Court Abuse of Children.” Through the organization, Father filed a new

disciplinary complaint, without leave of the court, against the GAL and her former law

partner and subsequently published the new complaint on a website he created called

StopCourtAbuseOfChildren.com. His organization’s website solely discussed the custody

case at issue in this appeal and displayed copies of documents related to the custody

proceeding, including: the newest Disciplinary Board complaint against the GAL; an

emergency motion for an ex parte order to modify periods of responsibility for one of the
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Children, to which was appended a letter written by that child; and the GAL’s motion to

continue residential psychiatric treatment of Daughter.

{6} On March 28, 2011, the GAL requested that the district court issue a permanent

injunction requiring Father to remove the material from the internet and prohibiting Father

from publishing any information about the GAL in the future. At the June 22, 2011, hearing

on her motion, the GAL argued that Father’s publication was defamatory and therefore

constituted speech that could be permissibly restrained by the district court. In response,

Father contended that the district court could not issue the requested injunction since it no

longer had subject matter jurisdiction over the case under the Uniform Child Custody

Jurisdiction Enforcement Act (UCCJEA). By then, Mother and three of the Children had

relocated to Canada, and Mother had agreed in a settlement with Father that the district court

no longer had jurisdiction over the custody proceedings. At the hearing on the GAL’s

motion, Father also argued that the GAL’s requested injunction would violate his right to

freedom of speech.

{7} On July 1, 2011, the court issued an order (the Internet Order) compelling Father to

remove the information he had posted about the GAL and her former law partner from the

internet because it was “designed to harass and intimidate the [GAL] in the exercise of her

duties.” The court also stated that Father “is enjoined from re-publishing these materials or

any part thereof about the [GAL], her firm and former law partner in the future.” Father’s

second appeal challenges the legality of the district court’s Internet Order.

{8} We separately note that in May 2011, after filing briefs in the appeal related to

Father’s standing in the personal injury action, Father and Mother entered into a financial

settlement agreement (the Agreement) related to their divorce. Within the Agreement,

Father released Mother from all liability during the period of time that encompassed the

personal injury action at issue in this appeal. In exchange, Mother affirmed that jurisdiction

over the parties’ child custody matters no longer existed in New Mexico. The Agreement,

however, did not specifically release the GAL. After the Agreement was executed, Mother

and the GAL submitted a joint motion to dismiss Father’s first appeal as moot based on the

Agreement. Father opposed the motion. In this consolidated opinion, we now address

Mother’s and the GAL’s joint motion to dismiss, the district court’s dismissal of Father’s tort

lawsuit, and the district court’s issuance of its Internet Order.

II. DISCUSSION

A. The District Court Properly Dismissed Part of Father’s Lawsuit Brought on

Behalf of Daughter

{9} Father contends that the district court improperly dismissed his lawsuit against

Mother and the GAL for lack of standing. In district court, the GAL attached documentary

exhibits to her motion to dismiss, and it appears that the district court considered those and

additional documents outside of the pleadings in issuing its order of dismissal. In fact, the
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district court expressly took notice of all matters involved in the underlying divorce and

custody proceedings and of its own past orders regarding the GAL’s appointment. “Where

matters outside the pleadings are considered on a motion to dismiss for failure to state a

claim, the motion becomes one for summary judgment.” Foster v. Sun Healthcare Group,

Inc., 2012-NMCA-072, ¶ 6, 284 P.3d 389 (alteration, internal quotation marks, and citation

omitted); Emery v. Univ. of N.M. Med. Ctr., 96 N.M. 144, 147, 628 P.2d 1140, 1143 (Ct.

App. 1981) (“The affidavit and attachments were before the [district] court without objection

on [the] defendant’s part. These items converted the ‘motion to dismiss’ hearing into one

for summary judgment, and the order dismissing with prejudice was a summary judgment

in favor of [the] defendant.” (internal citation omitted)), abrogated on other grounds by

Maestas v. Zager, 2007-NMSC-003, 141 N.M. 154, 152 P.3d 141. Thus, we review the

order as an order granting summary judgment.

{10} A district court’s grant of summary judgment is reviewed de novo. Romero v. Philip

Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. “In New Mexico, summary

judgment may be proper when the moving party has met its initial burden of establishing a

prima facie case for summary judgment.” Id. ¶ 10. “By a prima facie showing is meant such

evidence as is sufficient in law to raise a presumption of fact or establish the fact in question

unless rebutted.” Goodman v. Brock, 83 N.M. 789, 792-93, 498 P.2d 676, 679-80 (1972)

(citations omitted). Once the moving party has made a prima facie case, “[t]he party

opposing the summary judgment motion must adduce evidence to justify a trial on the

issues.” Romero, 2010-NMSC-035, ¶ 10 (alteration in original). “A party may not simply

argue that such [evidentiary] facts might exist, nor may it rest upon the allegations of the

complaint.” Id. (alteration in original) (internal quotation marks and citation omitted). In

addition, we review de novo whether a party is entitled to an appeal. State v. Wilson,

2005-NMCA-130, ¶¶ 5-6, 14-15, 138 N.M. 551, 123 P.3d 784 (analyzing whether an appeal

is moot). Moreover, “[w]hether a party has standing to bring a claim is a question of law

which we review de novo.” Prot. & Advocacy Sys. v. City of Albuquerque, 2008-

NMCA-149, ¶ 17, 145 N.M. 156, 195 P.3d 1.

{11} As we explain below, because the case against Mother is moot, we only address

standing with regard to Father’s claims against the GAL. Because standing is not dispositive

here, we also address the GAL’s immunity from suit in her capacity as guardian ad litem

because that question was properly preserved by her assertion of judicial immunity in district

court. See State v. Vargas, 2008-NMSC-019, ¶ 8, 143 N.M. 692, 181 P.3d 684 (“Under the

right for any reason doctrine, we may affirm the district court’s order on grounds not relied

upon by the district court if those grounds do not require us to look beyond the factual

allegations that were raised and considered below.” (internal quotation marks and citation

omitted)).

1. Only Father’s Lawsuit Against Mother Is Moot

{12} In Father’s written objection to the joint motion brought by Mother and the GAL to

dismiss the appeal, he affirmed the release of Mother from liability with regard to the tort
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action at issue in this case. In accordance with the Agreement he entered into with Mother

in May 2011, Father was precluded from suing Mother on behalf of Daughter for any claims

that arose prior to May 31, 2011. Therefore, the issue of whether Father has standing to sue

Mother on behalf of Daughter for the asserted cause of action that arose in or prior to 2009

is moot as to Mother in light of the fact that Father’s claim against her is void. Thus, we

grant Mother’s and the GAL’s joint motion as to Mother.

{13} As to her own basis for dismissal, the GAL argues that “the execution of the

[Agreement] and dismissal of all claims against [Mother] necessitates the dismissal of the

claims made against [the GAL]” insofar as the complaint states that they acted jointly. The

GAL asserts that “[t]he injury or injuries alleged in [Father]’s [c]omplaint are the same as

to both [Mother and the GAL] and are indivisible.” As such, the GAL states that “[s]uch

claims cannot survive the release of the joint party or co-conspirator when there is an

indivisible injury.”

{14} Even if some of the claims could be construed as civil conspiracy allegations, we

disagree with the GAL’s contention that she and Mother must be treated alike for purposes

of dismissal. In New Mexico, “[a] civil conspiracy must . . . involve an independent,

unlawful act that causes harm—something that would give rise to a civil action on its own.”

Ettenson v. Burke, 2001-NMCA-003, ¶ 12, 130 N.M. 67, 17 P.3d 440. A plaintiff’s

settlement with the conspirator who committed the underlying unlawful act, which was the

objective of the conspiracy, does not absolve other conspirators of liability. “The purpose

of a civil conspiracy claim is to impute liability to make members of the conspiracy jointly

and severally liable for the torts of any of its members.” Id. (citation omitted).

{15} “Under the theory of joint and several liability, each tortfeasor is liable for the entire

injury, regardless of proportional fault, leaving it to the defendants to sort out among

themselves individual responsibility based on theories of proportional indemnification or

contribution.” Payne v. Hall, 2006-NMSC-029, ¶ 11, 139 N.M. 659, 137 P.3d 599.

Therefore, in a case like this, where only one conspirator remains subject to suit, “it should

not matter whether [the defendant] actively or passively participated in the conspiracy . . .

if injury to the [plaintiff] was the object of the conspiracy. In such a case, [the defendant]

is liable for the wrongful acts leading to the [plaintiff’s] injuries.” York v. InTrust Bank,

N.A., 962 P.2d 405, 418 (Kan. 1998); see Kuhn Const. Co. v. Ocean & Coastal Consultants,

Inc., 723 F. Supp. 2d 676, 689 (D. Del. 2010) (“Conspirators are liable on a joint and several

basis and, as such, [the] plaintiff can obtain complete relief without joining all possible

co-conspirators. . . . [A] case cannot be dismissed for nonjoinder even though only one

conspirator is subject to the jurisdiction of the court.” (internal quotation marks and citation

omitted)). Thus, Daughter need not sue Mother to recover for injuries incurred as the

intended result of a conspiracy involving Mother and the GAL, even if Mother alone

committed the independent unlawful act that causes Daughter harm. As long as the

independent unlawful act would have been actionable but for the settlement, a cause of

action still exists against any conspirator who did not participate in the Agreement.
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{16} We also note that New Mexico public policy encourages settlement agreements. Bd.

of Educ. v. Dep’t of Pub. Educ., 1999-NMCA-156, ¶ 14, 128 N.M. 398, 993 P.2d 112. Thus,

consistent with our case law and public policy, we cannot discourage civil settlement

agreements by requiring all conspirators to be joined in a single cause of action in order for

a plaintiff to obtain recovery. We therefore deny Mother’s and the GAL’s joint motion to

dismiss the appeal as to the GAL based on our conclusion that Father’s Agreement with

Mother does not render the lawsuit against the GAL moot.

2. Father Has Standing to Sue the GAL

{17} The GAL also argues and the district court agreed that Father lacked standing to sue

the GAL. The GAL asserts that the nature of her appointment as guardian ad litem

supersedes Father’s natural guardianship. She also contends that allowing Father to sue the

GAL would violate public policy supporting the appointment of legal guardians for minors

or otherwise incapacitated individuals and would frustrate the court’s interest in the “orderly

development of the lawsuit.”

{18} Generally, Rule 1-017 NMRA confers standing upon a parent to bring suit on behalf

of his or her minor child. Jaramillo v. Heaton, 2004-NMCA-123, ¶ 16, 136 N.M. 498, 100

P.3d 204 (“[Rule 1-017] permits a parent to bring a cause of action on behalf of a minor

child[.]”); Rule 1-017(C) (stating that general guardians or other like fiduciaries, next

friends, and guardians ad litem may sue on behalf of infants or incompetent persons). In

Collins ex. rel. Collins v. Tabet, 111 N.M. 391, 401-02, 806 P.2d 40, 50-51 (1991), our

Supreme Court explicitly held that parents may sue their child’s guardian ad litem for

injuries caused by the guardian to the parents’ child if the guardian acts as a private advocate

or exceeds the scope of his/her appointment as an arm of the court. In so ruling, our

Supreme Court observed that “[i]f there are public policy reasons to grant immunity to

guardians ad litem who function primarily as advocates rather than as court assistants, such

as the apprehension that private attorneys will be unwilling to accept guardian ad litem

appointments, then a legislative grant of immunity might well be warranted.” Id. at 402, 806

P.2d at 51.

{19} Based on our Supreme Court’s statement of law and policy in Collins and absent

intervening legislative protections, we cannot now extend protections to guardians ad litem

other than those currently provided to them through judicial immunity. Under our law as it

exists today, parents retain standing to sue their child’s guardian on behalf of their child,

subject to the guardian’s limited immunity as an arm of the court. We thus conclude that

Father has standing to assert the tort cause of action in this case. We reverse the district

court’s contrary determination.

3. The GAL Is Immune in Part From Suit

{20} In Collins, our Supreme Court made clear the purpose for its extension of judicial

immunity to guardians ad litem was in order to prevent “harassment and intimidation from
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dissatisfied parents” and to avoid “distortion of the investigative help and other assistance

provided [by guardians] to the court.” Collins, 111 N.M. at 397, 401, 806 P.2d at 46, 50

(internal quotation marks and citation omitted). The Court explained that “[a] guardian ad

litem[, acting as an arm of the court,] must also be able to function without the worry of

possible later harassment and intimidation from dissatisfied parents.” Id. at 397, 806 P.2d

at 46. Yet, as we noted above, a guardian ad litem’s immunity is not absolute.

{21} We employ a functional analysis to determine whether a guardian ad litem is immune

from suit in his or her appointed capacity. Id. at 395-96, 806 P.2d at 44-45. Under this

approach, if the guardian ad litem “was appointed and performed as an ‘arm of the court,’

[s]he is absolutely immune.” Id. at 402, 806 P.2d at 51. But, “[w]here the guardian’s

functions embrace primarily the rendition of professional services in the form of vigorous

advocacy on behalf of the child, . . . the attorney rendering professional service to the child

should be held to the same standard as are all other attorneys in their representation of

clients.” Id. at 401, 806 P.2d at 50. Such a circumstance arises either when the guardian’s

appointment establishes his/her role as a private advocate for the child, or when the guardian

is appointed to assist as an arm of the court but then exceeds the scope of that appointment.

Id. at 402, 806 P.2d at 51.

{22} In Collins, our Supreme Court further stated that “[c]onsiderations favoring immunity

might well be present when a guardian ad litem is appointed . . . under NMSA 1978, Section

40-4-8 (Repl. Pamp. 1989), to represent minor children in a custody dispute.” Collins, 111

N.M. at 402, 806 P.2d at 51. Furthermore, in adopting this functional approach, courts

around the country have agreed that “a guardian ad litem would be absolutely immune in

exercising functions such as testifying in court . . . and making reports and recommendations

to the court in which the guardian acts as an actual functionary or arm of the court, not only

in status or denomination but in reality.” Id. at 396, 806 P.2d at 45 (citation omitted).

{23} We note that the functional analysis of a guardian’s role is typically a factual inquiry.

Nonetheless, “the trial judge, and [appellate courts] on review, [have] important roles to play

in assuring that the purpose of the immunity defense is not emasculated by subjecting the

person claiming it to the hazards of a trial in every case.” Id. at 403, 806 P.2d at 52. Our

Supreme Court has stated in this context that “[w]here the facts are clear, summary judgment

is an important safeguard in preventing frivolous or harassing suits, and trial judges should

not hesitate to grant directed verdicts and otherwise perform their function of deciding issues

of law in appropriate cases.” Id. at 403-04, 806 P.2d at 52-53. It is the court’s duty “[i]n all

cases, [to] be vigilant to guard against dilution of the purpose of the defense through

unjustified exposure of the defendant to the burdens and risks of a trial.” Id. at 404, 806 P.2d

at 53.

{24} This case presented an appropriate opportunity for the district court to evaluate the

issue of immunity without the aid of a jury because the facts of the GAL’s appointment and

Father’s allegations regarding the GAL’s conduct were clearly established. Moreover, we

can conclude in part that the GAL was immune and affirm in part the district court under the
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right for any reason doctrine because the court found below that the GAL was appointed as

an arm of the court and, as a matter of law, most of the conduct alleged by Father is

insufficient to prove that the GAL exceeded the scope of her appointment.

{25} According to the attachments produced by the GAL, the district court stated that the

GAL was appointed under NMSA 1978, Section 40-4-8 (1993), and Rule 1-053.3(A)

NMRA. Section 40-4-8(A) gives the district court discretion to appoint, either sua sponte

or upon application of a party, an attorney at law as a guardian ad litem for minor children

in a custody dispute. As stated above, our Supreme Court indicated that immunity would

in most instances extend to guardians appointed under Section 40-4-8 to represent children

in custody disputes like this one. In addition, Rule 1-053.3(A) states that the guardian ad

litem appointed in a custody dispute “serves as an arm of the court and assists the court in

discharging its duty to adjudicate the child’s best interests.” It also explains that “[t]he

guardian ad litem appointed under this rule is a ‘best interests attorney’ who shall provide

independent services to protect the child’s best interests without being bound by the child’s

or either party’s directive or objectives and who shall make findings and recommendations.”

Rule 1-053.3(C). Furthermore, in its order of appointment, the district court stated that the

GAL “serves as an arm of the court and assists the court in discharging its duty to adjudicate

the children’s best interests.” Thus, we conclude that the district court appointed the GAL

as an arm of the court, consistent with the circumstances in which a guardian ad litem is

immune. Once appointed, the GAL was expressly required to review relevant records,

submit a written report of her investigation, and interview the Children, Mother, Father, any

mental health professionals treating the Children, and any other relevant persons. We

conclude that, as long as the GAL stayed within the scope of her appointment as an arm of

the court, she would be immune from suit for actions or inactions related to the performance

of her duties. To determine whether the GAL exceeded the scope of her appointment, we

examine conduct asserted within the first amended complaint against the GAL, filed by

Father on behalf of Daughter.

{26} Father makes four claims against the GAL, alleging that she (1) intentionally inflicted

emotional distress (IIED) on, (2) breached her fiduciary duty to, (3) invaded the privacy of,

and (4) committed prima facie torts injuring Daughter. First, with respect to the claim for

IIED, Father stated that the GAL “acted together with [Mother] to facilitate the blocking of

calls from [Daughter] to her siblings” when instead the GAL should have both reported the

issue to the district court and undertaken efforts to correct it. Father complained that

Daughter’s fragile mental and psychological condition was created in part by the GAL’s

“repeated interference with [Daughter]’s care and treatment, the [GAL’s] repeated

exacerbation of the conflict between the parties in the [d]ivorce [p]roceeding[,] and [the

GAL’s] refusal to represent the best interests of [Daughter].” The complaint further alleged

that the tort of IIED was committed when the GAL “obtained medical authorizations from

[Daughter] and used those authorizations to obtain access to [Daughter]’s medical records”

which the GAL “published” to the district court, Mother, and counsel for the parties in the

divorce proceeding “notwithstanding [Daughter]’s desire to maintain the confidentiality of

her records.” Finally in relation to the IIED claim, Father asserted that the GAL acted “in
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concert” with Mother to increase conflict between the parties by rejecting settlement offers

and failing to advance Daughter’s interests by taking action to “correct [Mother’s] behavior”

when Mother “completely ignored [Daughter] psychologically and emotionally.”

{27} Second, Father asserted that the GAL breached her fiduciary duty to Daughter by

colluding with Mother to block Daughter’s phone calls to her siblings and by disclosing

Daughter’s medical records to the district court. Third, the complaint stated that the GAL

invaded Daughter’s privacy by disclosing Daughter’s “medical and psychological

information” to the district court and parties. Lastly, the complaint restates all of the

allegations described above as grounds for prima facie tort.

{28} With one exception, we conclude that Father’s allegations relate to the GAL’s role

and actions as an arm of the court and as a matter of law cannot be deemed to have exceeded

the scope of her appointment. With respect to the IIED and prima facie tort claims, Father

asserts a general failure by the GAL to advance Daughter’s interests. The original order

appointing the GAL assigned her the tasks of making recommendations on all issues related

to the children, investigating on behalf of the court what constituted the best interests of the

children, reporting to parties and the court on issues related to the best interests of the

children and otherwise performing the duties of a guardian ad litem. The same order

reminded the parties that the GAL “may make recommendations that neither party, nor the

children, will like.” The order further gave the GAL full access to the children’s “medical,

therapy, dental, school, court and all other records related to the children.” Under the order

the GAL’s responsibility was to investigate the matter as a whole and report back to the

court with her recommendations as to Daughter’s best interests. The GAL had a duty to

listen to and consider the opinions and desires of Daughter and Father, but had no duty to

advocate for their personal positions as such. In fact, if the GAL disagreed with Father or

Daughter on a matter she would have a duty to disagree to the court and other parties as she

deemed most appropriate. It should be noted also that there are no guarantees that a GAL’s

judgment will be correct or even wise. But a faulty judgment call by a GAL does not

deprive the GAL of the immunity our Supreme Court described in Collins so long as the

GAL remains within the scope of her appointment.

{29} The allegations in the First Amended Complaint consist for the most part of

disagreements with the GAL’s judgment calls made within the scope of her appointment or

merely assert inadequate, incomplete, or excessive performance of her tasks. For example,

the complaint asserts causes of action for IIED, breach of fiduciary duty and prima facie tort

based on the GAL’s alleged failure to report certain details regarding Mother’s relationship

with Daughter and the failure to report Mother’s efforts to block contact between Daughter

and her siblings. In our view these acts or failures to act on the part of the GAL—assuming

as we must that they are true—fall within the scope of the district court’s appointment order,

Section 40-4-8 and Rule 1-053.3. As such, the GAL would be immune from suit for these

alleged failures.

{30} Furthermore, as an arm of the court, the GAL had a duty to report to the court
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whether proposed settlements were in the Children’s best interests. To the extent that the

GAL advised the court for or against proposed settlements, that too was within the sphere

of her responsibility. Lastly, the allegation that the GAL disclosed Daughter’s medical

records to the district court and the parties, which is related to all four claims against the

GAL, involves actions also directly encompassed within a guardian’s statutory and rulebased duties in a custody proceeding. According to the district court’s order and under Rule

1-053.3(C), the GAL was required to “make findings and recommendations” to the district

court regarding the best interests of the Children. In gathering and disclosing the records,

she was acting as an investigatory arm of the court and, as such, is immune from suit for

such actions. We therefore conclude that the GAL was immune from suit with regard to the

allegations addressed above, and we affirm the district court’s dismissal of these claims.

{31} There remains one factual issue on which the GAL failed to establish a prima facie

showing entitling her to summary judgment. On behalf of Daughter, Father alleged that the

GAL colluded with Mother to block Daughter’s phone calls to her siblings. If true, such an

action would exceed the scope of her appointment, based upon the court orders related to the

underlying custody matter that the GAL attached to her motion in this case, none of which

allow her to restrict the Children’s communication. But the GAL provided no affidavit or

other documentation asserting that she did not collude with Mother to inhibit Plaintiff’s

communication with her siblings. See Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d

1241, 1244-45 (1992) (“Upon the movant making a prima facie showing, the burden shifts

to the party opposing the motion to demonstrate the existence of specific evidentiary facts

which would require trial on the merits.”). We therefore reverse the district court’s summary

judgment solely with regard to claims involving the GAL’s alleged involvement with Mother

in blocking Daughter’s phone calls to her siblings. As explained above, the GAL is immune

from suit for any of Father’s claims related to the GAL’s alleged failure to report that Mother

blocked Daughter’s phone calls.

B. The Internet Order Was Constitutionally Invalid

{32} Father’s argument as to the impropriety of the issuance of the Internet Order is

twofold. First, he asserts that the district court lacked subject matter jurisdiction to issue the

Internet Order. Second, he argues that the Internet Order violated his right to freedom of

speech. We review questions of subject matter jurisdiction and constitutional challenges to

the district court’s Internet Order de novo. State v. Atcitty, 2009-NMCA-086, ¶ 13, 146

N.M. 781, 215 P.3d 90 (stating that issues related to subject matter jurisdiction are reviewed

de novo); State v. Druktenis, 2004-NMCA-032, ¶ 14, 135 N.M. 223, 86 P.3d 1050 (stating

that constitutional challenges are reviewed de novo). “Whether a statement is privileged

[under the First Amendment] presents a question of law for the court to determine.”

Marchiondo v. Brown, 98 N.M. 394, 400, 649 P.2d 462, 468 (1982). We address each

argument in turn.

1. The District Court Had Subject Matter Jurisdiction to Issue the Internet Order
12

{33} Father argues that the district court lacked subject matter jurisdiction to issue the July

1, 2011, Internet Order requiring the removal and banning the republication of his

disciplinary complaint against the GAL. Father contends that under the UCCJEA, codified

within NMSA 1978, Section 40-10A-202 (2001), the district court lacked subject matter

jurisdiction to issue the Internet Order because the entire family had relocated to Canada and

because Mother agreed that the district court no longer had jurisdiction over the custody

case. Section 40-10A-202(a)(2) provides that a New Mexico court will maintain exclusive

continuing jurisdiction until “a court of this state or a court of another state determines that

the child, the child’s parents[,] and any person acting as a parent do not presently reside in

this state.”

{34} Even if we assume without deciding that the district court lacked jurisdiction over

the custody case, it nonetheless retained subject matter jurisdiction to issue the injunction.

The UCCJEA only applies to “child-custody determination[s].” Section 40-10A-202(b).

“[C]hild-custody determination[s]” are defined by the UCCJEA to “mean[] a judgment,

decree or other order of a court providing for legal custody, physical custody or visitation

with respect to a child. The term includes a permanent, temporary, initial or modification

order. The term does not include an order relating to child support or other monetary

obligation of an individual.” NMSA 1978, § 40-10A-102(3) (2001).

{35} Thus, the UCCJEA exclusively applies to curtail the jurisdictional reach of district

courts with relation to “child custody determinations” in expressly specified circumstances.

Here, the Internet Order is entirely unrelated to “child custody determinations.” The court

instead simply issued an injunction that forbade Father’s website publications that were in

direct violation of prior court orders regarding his behavior in the ancillary custody matter.

{36} We dealt with a similar jurisdictional issue in Ottino v. Ottino, 2001-NMCA-012,

¶¶ 1-4, 130 N.M. 168, 21 P.3d 37, where a mother and her child sued to enforce postminority support from the child’s adoptive father pursuant to a marriage settlement

agreement. The father argued that the district court lacked jurisdiction to hear the claim

because under New Mexico law, district courts lack the power to order, on the district

court’s own authority, post-minority support. Id. ¶ 9. The issue in Ottino was: “whether

the court ha[d] jurisdiction over an agreement of the parties, ancillary to a final divorce

decree.” Id. ¶ 13.

{37} In Ottino, we explained that “[o]ur district courts are courts of general jurisdiction.”

Id. ¶ 6. As such, “the district court’s original jurisdiction arises from our state’s constitution.

Therefore, absent a constitutional amendment, the court’s jurisdiction cannot be limited by

the Legislature’s enactment of a statute.” Id. ¶ 14 (citation omitted). This court held that

“the district court has the power, arising from its original jurisdiction over matters sounding

in contract, to enforce valid agreements for post-minority support.” Id. Hence, despite the

district court’s inability to order post-minority child support on its own initiative, the court

still retained its constitutional authority to enforce a contract between the parties. Similarly,

the Supreme Court has repeatedly stated that to determine whether the district court has
13

jurisdiction, we must ask “whether or not it had power to enter upon the inquiry.” Sundance

Mech. & Util. Corp. v. Atlas, 109 N.M. 683, 687, 789 P.2d 1250, 1254 (1990) (internal

quotation marks and citation omitted).

{38} At issue in the present case is whether the district court constitutionally has the power

to enjoin publication by one of the parties, a matter that is ancillary to the underlying custody

dispute. Article VI, Section 13 of the New Mexico Constitution states: 

The district court shall have original jurisdiction in all matters and causes not

excepted in this constitution, and such jurisdiction of special cases and

proceedings as may be conferred by law, and appellate jurisdiction of all

cases originating in inferior courts and tribunals in their respective districts,

and supervisory control over the same. The district courts, or any judge

thereof, shall have power to issue writs of habeas corpus, mandamus,

injunction, quo warranto, certiorari, prohibition and all other writs,

remedial or otherwise in the exercise of their jurisdiction; provided, that no

such writs shall issue directed to judges or courts of equal or superior

jurisdiction.

(Emphasis added.) Based on the New Mexico Constitution and our precedent, we conclude

that the district court had jurisdiction to issue the Internet Order because it is a court of

general jurisdiction with the express authority to issue injunctions regarding speech. See

N.M. Const. art. VI, §§ 3, 23, 26 (stating the matters and causes over which the district court

does not have original jurisdiction). Simply because a district court is primarily tasked with

resolving matters related to domestic relations in a given case does not deprive it of

jurisdiction over ancillary issues related to general tort law. In re Guardianship of Arnall,

94 N.M. 306, 308, 610 P.2d 193, 195 (1980) (stating that although it is “preferable that

guardianships of minors, [and] termination proceedings . . . be brought in children’s or

family court[,] the failure to do so does not constitute a jurisdictional defect”). We therefore

hold that there was no defect in the court’s exercise of subject matter jurisdiction.

2. The Internet Order Was Not Supported by Proper Findings

{39} Father contends that the portion of the district court’s Internet Order requiring him

to take down his disciplinary complaint against the GAL and restraining him from

republishing it violated his right to freedom of speech. Father emphasizes his assertion that

the Internet Order constitutes a prior restraint on his speech because it prevents republication

of the complaint.

{40} We first address Father’s contention that the Internet Order was a prior restraint.

“The term prior restraint is used to describe administrative and judicial orders forbidding

certain communications when issued in advance of the time that such communications are

to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993) (emphasis in original)

(internal quotation marks and citation omitted). “Prior restraint means only that the
2

 We note that this list is not exhaustive. 

14

government may not enjoin or restrain a particular expression prior to its judicial review,

even though the same expression could constitutionally be subject to punishment

afterwards.” City of Farmington v. Fawcett, 114 N.M. 537, 540, 843 P.2d 839, 842 (Ct.

App. 1992).

{41} In this case, the district court reviewed the disciplinary complaint against the GAL

that Father had already published on his organization’s website and then ordered Father to

remove the content and restrained Father’s republication of the document. We highlight the

fact that the court specifically restrained republication of only the disciplinary complaint that

it reviewed; no other documents regarding the GAL were addressed in the Internet Order.

Because the expression at issue was already subject to judicial review, the Internet Order did

not constitute a prior restraint on Father’s freedom of expression.

{42} Nonetheless, to the extent that Father argues that the Internet Order violates his right

to freedom of speech, there exists no basis within the record to conclude otherwise because

the Internet Order fails to meet constitutional standards. The First Amendment to the United

States Constitution and Article II, Section 17 of the New Mexico Constitution both protect

a person’s right to speak, write, and publish freely, with several exceptions. “[T]he

protection accorded . . . for freedom of speech and press does not protect every publication,

such as obscene, fraudulent or untrue defamatory statements.” State v. Powell, 114 N.M.

395, 407, 839 P.2d 139, 151 (Ct. App. 1992).2

 For the district court to issue an order

restraining Father’s speech, the speech must not be a type of expression that is within the

broad category of what is constitutionally protected. 

{43} The GAL argued to the district court and again argues on appeal that the speech was

defamatory. Yet the district court never determined that the speech was defamatory during

the hearing on this issue or in its order. Rather, in the Internet Order compelling removal

and enjoining republication of the complaint, the court justified the restraint by stating that

it “ha[d] an important and inherent obligation to make parties to this action refrain from

harassment and intimidation of other parties and the [GAL and that Father] caused to be

published on the internet information designed to harass and intimidate the [GAL] in the

exercise of her duties.” The court failed to make any other substantive findings about the

document itself that was published by Father.

{44} Although the GAL is immune from harassing lawsuits brought by the parties, we lack

the constitutional authority to unilaterally extend this policy protecting the GAL in order to

separately curtail Father’s exercise of free speech on the internet. As explained above,

freedom of speech can only be limited where the speech is not protected. Thus, we cannot

affirm the district court’s Internet Order on its basis that the speech was harassing or

intimidating because this alone is insufficient to show that the speech was not protected.

Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the
3

The Disciplinary Board complaint does not appear in the record before us, but

recordings from the hearing and the district court’s orders indicate that the district court did

examine the complaint.

15

First Amendment, it is that the government may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable.”).

{45} The GAL argues that we can conclude that the internet publication constituted

defamation based upon evidence the GAL presented in the district court, the findings the

court made in its Internet Order, and the findings it made in a second order regarding the

GAL’s attorney fees. Yet the second order simply recognizes that the disciplinary complaint

was “nothing more than a thinly disguised attempt by [Father] to use the disciplinary system

as an alternative forum in which to pursue his vendetta against [the GAL].” Neither order

addressed or established the existence of the requisite elements of defamation, although it

appears that the GAL presented evidence regarding the nature and contents of the

publication and Father’s motives in publishing the contents.3

{46} Nevertheless, “a claim of defamation . . . raises questions of fact[,]” Phillips v.

Allstate Ins. Co., 93 N.M. 648, 650, 603 P.2d 1105, 1107 (Ct. App. 1979), and we may not

weigh the evidence for the first time on appeal in order to affirm on a basis that the district

court did not analyze below. Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536,

994 P.2d 1154. Because the district court did not make factual findings regarding

defamation but rather simply restrained Father’s publication based on a constitutionally

impermissible rationale, we must reverse. We remand for the district court to consider the

GAL’s arguments and evidence regarding defamation in light of the facts of this case, should

Father wish to persist in his publication efforts.

III. CONCLUSION 

{47} For the reasons stated above, we grant Mother’s and the GAL’s joint motion to

dismiss the appeal as to Mother, and we deny the joint motion as to the GAL. We reverse

the district court’s order dismissing Father’s suit against the GAL, but only to the extent that

the order dismissed Father’s claims involving the GAL’s alleged involvement in blocking

Daughter’s phone calls to her siblings. We affirm the district court’s order dismissing

Father’s suit against the GAL as to all other claims. We also reverse the district court’s

Internet Order restraining the publication of the disciplinary complaint. We remand this case

to the district court for proceedings consistent with this Opinion.

{48} IT IS SO ORDERED.

____________________________________

J. MILES HANISEE, Judge
16

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

CYNTHIA A. FRY, Judge

Topic Index for Kimbrell v. Kimbrell, Nos. 30,447/31,491

APPEAL AND ERROR

Remand

Standard of Review

ATTORNEYS

Disciplinary Action

CIVIL PROCEDURE

Failure to State a Claim

Summary Judgment

Mootness

Motion to Dismiss

Standing

CONSTITUTIONAL LAW

Freedom of Speech

Mootness

New Mexico Constitution, General

Prior Restraint

DOMESTIC RELATIONS

Child Custody

Guardian ad Litem

Parental Rights

JUDGMENT

Settlement

JURISDICTION

Subject Matter Jurisdiction

NEGLIGENCE

Joint and Several Liability
17

TORTS

Defamation

Emotional Distress, Infliction of

Immunity

Invasion of Privacy

Prima Facie Tort