                                                 I attest to the accuracy and
                                                  integrity of this document
                                                    New Mexico Compilation
                                                  Commission, Santa Fe, NM
                                                 '00'04- 15:18:27 2013.07.03

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

                                        1
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


        1
        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
{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



Father’s appeal of the district court’s rulings on spousal support, child support, termination
of joint custody, procedural matters, and contempt sanctions).

                                               3
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

                                              4
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

                                               5
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.


                                               6
{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

                                               7
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

                                               8
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

                                              9
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

                                              10
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 rule-
based 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


                                               11
{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 post-
minority 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

                                                12
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

                                               13
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


    2
        We note that this list is not exhaustive.

                                                14
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



       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
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


                                         16
TORTS
Defamation
Emotional Distress, Infliction of
Immunity
Invasion of Privacy
Prima Facie Tort




                                    17
