I Cedrins v. R Shrestha

• Court: New Mexico Court of Appeals
• Decided: April 24, 2009
• Docket: 29,242
• Status: Unpublished

Opinion

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

2 INARA CEDRINS,

3 Petitioner-Respondent,

4 v. NO. 29,242

5 RAMESH SHRESTHA,

6 Respondent-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Barbara Vigil, District Judge

9 Inara Cedrins 10 Cerrillos, NM

11 Pro Se Appellant

12 MEMORANDUM OPINION

13 KENNEDY, Judge.

14 Petitioner is appealing, pro se, from a district court final decree of divorce. We

15 issued a calendar notice proposing to affirm. Petitioner has filed a memorandum in

16 opposition. Not persuaded by Petitioner’s arguments, we affirm the district court

17 judgment.

18 Issues 1-2: Petitioner continues to challenge the alleged refusal of the district

19 court to consider the immigration history and implications on the parties’ marriage,

20 and she claims that the marriage was the result of Respondent’s fraudulent intentions. 1 [MIO 1] Based on this general allegation, Petitioner has made multiple contract and

2 tort claims against Respondent and other parties. [DS 1; 2-8; MIO 1-2] Petitioner is

3 seeking money damages and claims that Respondent violated federal law. [DS 13]

4 However, New Mexico is a “no-fault” divorce state, meaning that we have removed

5 fault-finding from the personal-relationship dynamics of marriage and divorce. See

6 State ex rel. DuBois v. Ryan, 85 N.M. 575, 577, 514 P.2d 851, 853 (1973); see NMSA

7 1978, § 40-4-1(A) (1973) (stating grounds for divorce includes incompatibility).

8 When determining whether a divorce should be granted on grounds of incompatibility,

9 fault is not relevant to the determination. DuBois, 85 N.M. at 577, 514 P.2d at 853.

10 Here, we believe that the district court properly limited its consideration to whether

11 the petition for divorce should be granted, in that the numerous contract and tort

12 claims are matters outside the scope of this proceeding. Similarly, any issue relating

13 to Respondent’s immigration status and any violation of federal law is outside the

14 scope of these proceedings.

15 Issue 3: Petitioner continues to argue that she did not have adequate legal

16 counsel. [MIO 2] However, Defendant was not constitutionally entitled to counsel

17 in this civil proceeding, and the adequacy of counsel does not affect our review. See

18 Archuleta v. Goldman, 107 N.M. 547, 552, 761 P.2d 425, 430 (Ct. App. 1987).

19 Issue 4: In her docketing statement, Petitioner claimed that she was unable to

2 1 complete discovery. [DS 1; 9] Our calendar notice observed that Petitioner has not

2 indicated that she timely preserved this issue, see Rule 12-216(A) NMRA, has not

3 established that the trial court erred in refusing to compel discovery or impose

4 sanctions, see Estate of Romero ex rel. Romero v. City of Santa Fe, 2006-NMSC-028,

5 ¶ 6, 139 N.M. 671, 137 P.3d 611, and has not established prejudice because this

6 discovery appears to be related to the various allegations that were not germane to the

7 divorce decree itself. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M.

8 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”). In her

9 memorandum in opposition, Petitioner claims that she did not know how to bring this

10 evidence before the court. [MIO 2] However, pro se litigants must comply with the

11 rules and orders of the court and will not be treated differently than litigants with

12 counsel. Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84. In the

13 absence of any indication that the trial court erred, we will not reverse for new

14 proceedings.

15 Issue 5: Petitioner has raised a claim that either Respondent’s attorney or the

16 court was at fault for failing to inform her that it was time for her to come into the

17 courtroom and that her absence resulted in the inability to present or comment on

18 evidence. [MIO 2-3. The record reflects that Petitioner informed the district court

19 that she had appeared at the hearing, but had waited outside to be called. [RP 160]

20 The judgment indicates that the district court determined that Petitioner had been

3 1 given notice and failed to appear. [RP 189] We believe that the district court

2 essentially rejected Petitioner’s credibility with respect to the reason for her alleged

3 lack of participation in the hearing, and we defer to this determination on appeal. See

4 Fierro v. Murphy, 85 N.M. 179, 510 P.2d 112 (Ct. App. 1973) ("It is the function of

5 the fact finder to weigh the evidence and decide on the credibility of witnesses.").

6 For the reasons set forth above, we affirm.

7 IT IS SO ORDERED.

8 ___________________________________ 9 RODERICK T. KENNEDY, Judge

10 WE CONCUR:

11 ___________________________ 12 JAMES J. WECHSLER, Judge

13 ___________________________ 14 LINDA M. VANZI, Judge