Moffett v. Devontenno

• Court: New Mexico Court of Appeals
• Decided: January 21, 2014
• Docket: 33,044
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

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

2 LILA MOFFETT n/k/a LILA MAJOR,

3 Petitioner-Appellee,

4 v. NO. 33,044

5 ANTHONY DEVONTENNO,

6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 8 James Lawrence Sanchez, District Judge

9 Lila Moffett 10 Belen, NM

11 Pro Se Appellee

12 Anthony Devontenno 13 Las Cruces, NM

14 Pro Se Appellant

15 MEMORANDUM OPINION

16 VIGIL, Judge. 1 {1} Father appeals the district court’s order concerning modification of custody and

2 time sharing. We issued a calendar notice proposing to affirm, and Father has filed a

3 memorandum in opposition to the proposed affirmance. We have carefully reviewed

4 the arguments made in the memorandum in opposition, and are not convinced that the

5 district court abused its discretion, for the reasons discussed below and in the calendar

6 notice.

7 {2} Father renews his argument that the district court did not hear his motion to

8 modify in a timely manner. He contends that if the delay had not occurred, Child

9 would have been only eleven or twelve years old at the time of the hearing, and the

10 Court might not have given so much weight to her desires concerning custody and

11 visitation. The fact is, however, that it was Father’s responsibility to ensure that a

12 timely hearing occurred, by properly requesting a hearing and then, if no hearing was

13 scheduled, by filing additional pleadings pointing out that fact. We note that there was

14 a change of judge assignment a few months after Father’s November 7, 2011 request

15 for a hearing. [RP 124] It was Father’s responsibility to alert the replacement judge

16 to his pending motions, rather than assuming the judge would be able to review any

17 and all transferred cases to determine whether hearings needed to be scheduled in any

18 of them.

2 1 {3} Even more fundamentally, however, even assuming the district court erred in

2 delaying the hearing, that fact would not entitle Father to a different result in this

3 proceeding. The proper remedy for a delayed hearing is not, as Father would have it,

4 to ignore the time that has passed and the growth Child has undergone. Instead, the

5 district court properly made its decision on the basis of present conditions and

6 circumstances, rather than making a hypothetical assumption as to what the decision

7 might have been if the hearing had been held a year before, or two years before. We

8 find no abuse of discretion in the district court’s decision concerning the delayed

9 hearing.

10 {4} Father also again argues that the district court gave too much weight to Child’s

11 wishes, because she was not yet fourteen years old at the time of the hearing.

12 According to Father, the district court “ruled” that it would consider Child to be

13 fourteen years of age, even though she was only thirteen-and-one-half years old at the

14 time of the hearing. We again point out, however, that according to the applicable

15 statute, the district court was required to consider Child’s wishes whether she was

16 fourteen years old or younger; and, on the other hand, those wishes do not

17 automatically control the district court’s decisions concerning custody and visitation,

18 no matter what the age of Child. NMSA 1978, § 40-4-9 (1977). It was up to the

19 district court to evaluate Child’s maturity as well as the validity of any concerns Child

3 1 might have about a changed visitation or custody schedule. To the extent the district

2 court decided that Child should be treated as a fourteen-year-old would be under the

3 statute, we cannot say the court abused its discretion in doing so. See Normand ex rel.

4 Normand v. Ray, 1990-NMSC-006, ¶ 9, 109 N.M. 403, 785 P.2d 743 (noting district

5 court’s wide discretion in matters of custody and visitation).

6 {5} We note Father’s concern about the school-related activities in which Child is

7 engaged, and the fact that these activities cut into the time he can spend with Child.

8 [MIO unnumbered p. 3] It does not appear that Father brought this concern to the

9 district court’s attention, as he states the district court “did not hear these factors.”

10 [Id.] We will not reverse the district court on the basis of issues that were not

11 presented to that court for its consideration. See Carrillo v. Compusys, Inc.,

12 1997-NMCA-003, ¶ 11, 122 N.M. 720, 930 P.2d 1172. It is of course beyond dispute

13 that school-related activities or other activities are beneficial to a young teenager such

14 as Child. If Father feels nonetheless that these activities overly intrude on the time he

15 spends with Child, that is a concern that must be addressed to the district court rather

16 than to this Court for the first time on appeal. If the district court was in fact presented

17 with this argument and did not find it convincing, we believe that decision was well

18 within the district court’s discretion, given the obvious value of these types of

19 activities to Child’s development and well-being.

4 1 {6} For the reasons stated above and in the calendar notice, we affirm the district

2 court’s decision in this matter.

3 {7} IT IS SO ORDERED.

4 __________________________________ 5 MICHAEL E. VIGIL, Judge

6 WE CONCUR:

7 ___________________________________ 8 JAMES J. WECHSLER, Judge

9 ___________________________________ 10 JONATHAN B. SUTIN, Judge