Castleman v. Davis

• Court: New Mexico Court of Appeals
• Decided: September 28, 2011
• Docket: 31,271
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 BRANDON CHASE CASTLEMAN,

8 Petitioner-Appellee,

9 v. NO. 31,271

10 CRYSTAL LYNN DAVIS,

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 13 William G. Shoobridge, District Judge

14 Tommy D. Parker 15 Hobbs, NM

16 for Appellee

17 Crystal Lynn Davis 18 Portales, NM

19 Pro Se Appellant

20 MEMORANDUM OPINION

21 VANZI, Judge.

22 Appellant Crystal Lynn Davis appeals the district court’s decree of paternity,

23 order of custody of minor children, order of supervised visitation for non-custodial 1 parent, and award of child support and other supplemental relief. On June 22, 2011,

2 this Court filed a notice of proposed summary disposition proposing to affirm the

3 district court. On August 10, 2011, Appellant filed a memorandum in opposition to

4 proposed summary affirmance, which we have given due consideration. We affirm

5 the district court.

6 Denial of Continuance

7 Appellant’s memorandum clarifies the circumstances of the district court’s

8 grant of a continuance as to the originally scheduled date for the final hearing on the

9 merits. The district court first scheduled the hearing for February 22, 2011. [RP 13]

10 Four days earlier, on February 18, Appellant had retained an attorney who

11 immediately moved for a continuance to allow preparation time for the hearing. [RP

12 16] On February 21, Judge Mark Sanchez, who had originally been assigned to the

13 case, recused himself. [RP 19] Judge William Shoobridge was assigned the case on

14 February 24. [RP 20] The final hearing on the merits was rescheduled for March 15.

15 [RP 22] On March 14, the day before the hearing, Appellant faxed a letter to the court

16 asking for a continuance to a date after March 17, when she would know the outcome

17 of a probation hearing scheduled for that date. [RP 25] The letter asserts that she was

18 prohibited from leaving Roosevelt or Curry Counties and could not attend the hearing

19 in Lea County. [Id.] There is no indication in this letter that Appellant sent a copy of

2 1 it to Appellee or his attorney, requested permission to travel to Lea County for the

2 hearing, or requested permission to appear telephonically. She now informs us that

3 a bench warrant for her arrest had been issued on March 8. [MIO 2]

4 Appellant argues that the district court should have viewed, and this Court

5 should now view, the March 14 faxed letter as her first request for a continuance, not

6 her second, as the first continuance would have occurred anyway because of the

7 judge’s recusal. [MIO 2] As we stated in our notice of proposed summary

8 disposition, “[g]ranting of a continuance . . . rests within the sound discretion of the

9 trial court, and the denial of a continuance will be reversed only upon a showing of

10 a clear abuse of discretion.” Bombach v. Battershell, 105 N.M. 625, 626, 735 P.2d

11 1131, 1132 (1987).

12 Regarding Appellant’s current argument that the March 14 letter should be

13 considered her first request for a continuance, we observe that even though the

14 continuance of the hearing scheduled for February 22 was based on the recusal and

15 not in response to Appellant’s motion, Appellant obtained the same benefit as if her

16 motion had been granted. On March 14, the judge considering Appellant’s request to

17 continue the hearing scheduled for the following day had information before him

18 relevant to the question of whether he should grant the continuance. First, because

19 Appellant’s request came in only the day before and because it does not appear that

3 1 Appellant sent a copy of the request to Appellee, Appellee would most likely appear

2 as scheduled at some inconvenience to him if the hearing did not go forward. [RP 25]

3 Second, Appellant does not specify any reason she could not have moved for the

4 continuance earlier. [Id.] Third, except for her purported inability to travel to Lea

5 County for reasons related to her criminal case, she could have appeared on March 15

6 and explained to the court the reasons why it would be more efficient to move the

7 hearing to a date after her March 17 court date. Fourth, based on the information in

8 Appellant’s letter asserting that she was “out on bond which prohibits [her] from

9 leaving Roosevelt or Curry County,” the district court was left to wonder whether she

10 had requested permission to travel for this hearing and been denied permission. [Id.]

11 Fifth, there is no indication that Appellant requested permission to appear

12 telephonically. Sixth, given the availability of relief from default under Rules 1-

13 055(C) and 1-060(B), the district court might have concluded that it was best to

14 proceed on March 15 and let Appellant pursue relief later under those rules if she

15 chose. We observe that Appellant did not seek to have the continuance set aside in

16 district court pursuant to Rules 1-055(C) or 1-060(B).

17 We conclude that the district court did not abuse its discretion in denying a

18 continuance under these circumstances.

4 1 Venue and Child Support Calculation Issues

2 Appellant’s memorandum in opposition does not address the issues of whether

3 venue was proper in Lea County or whether child support was calculated correctly.

4 Accordingly, we affirm the district court on these issues for the reasons stated in our

5 notice of proposed summary disposition.

6 CONCLUSION

7 For the reasons stated above, we affirm the district court.

8 IT IS SO ORDERED.

9 __________________________________ 10 LINDA M. VANZI, Judge

11 WE CONCUR:

12 _________________________________ 13 CYNTHIA A. FRY, Judge

14 _________________________________ 15 MICHAEL E. VIGIL, Judge