White v. Bibby

• Court: New Mexico Court of Appeals
• Decided: May 25, 2011
• Docket: 30,975
• Status: Unpublished

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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

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

7 ANNE HOLLY WHITE,

8 Petitioner-Appellee,

9 v. NO. 30,975

10 WYLDER K. BIBBY,

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Gerard J. Lavelle, District Judge

14 Anne Holly White 15 Albuquerque, NM

16 Pro Se Appellee

17 Wylder K. Bibby 18 Albuquerque, NM

19 Pro Se Appellant

20 MEMORANDUM OPINION

21 VIGIL, Judge.

22 Respondent appeals, pro se, from a district court order denying his motion to

23 modify a pre-existing custody order. We issued a calendar notice proposing to affirm. 1 Respondent filed a memorandum in opposition. Respondent then filed a supplement

2 to the memorandum. Petitioner then filed a response to the supplement, and a motion

3 to strike Respondent’s supplement to the memorandum. We decline to consider

4 Respondent’s supplemental filings because they are either duplicative of the record

5 or were not made part of the record below. As such, we deny Petitioner’s motion as

6 unnecessary. We affirm the district court order.

7 Issue 1

8 Respondent has claimed that the district court erred in refusing to permit

9 Child’s therapist from testifying at the hearing to modify a pre-existing (December 9,

10 2009) order, which continued to give him sole legal and physical custody of Child,

11 with Petitioner (Mother) and Grandparent visitation. [RP 790-91, 809] Respondent’s

12 motion had sought to terminate all visitation based on the alleged conduct of Mother

13 and Grandparents. [RP 793] The record indicates that the parties had a long history

14 of back-and-forth accusations. Notwithstanding Respondent’s memorandum, which

15 largely refers us to the importance of parental rights generally, we believe that the

16 district court could, within its discretion, limit the hearing to a consideration of

17 Respondent’s credibility as to his accusations, and could defer to the court-appointed

18 expert, Dr. Roll, for oversight of Child’s behavioral status. In any event, there is no

19 tendered testimony in the record, and we conclude that it is speculative that additional

20 therapist testimony would have established a material and substantive change in

2 1 circumstances. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915

2 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”); see also

3 Campos Enters., Inc. v. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M. 691, 964

4 P.2d 855 (noting that an appellate court reviews only matters that were presented to

5 the trial court).

6 Issue 2

7 Respondent has also challenged the denial of his motion on the merits. As

8 noted, the district court was familiar with the long history of bad relations between the

9 parties. We believe that Respondent’s motion largely came down to an issue of

10 credibility, with the district court, sitting as fact finder, deciding that the ongoing

11 hostility was not a change in circumstances, but instead demanded an order instructing

12 the parties to stop the bad-mouthing. This is the precise language used by the district

13 court in its order. [RP 809] As such, we defer to the court’s determination that this

14 was not a change in circumstances, but instead an opportunity to reign in the parties.

15 Issue 3

16 Respondent claims that he has been denied due process. Defendant’s examples

17 go back to 2006, and he was required to raise any challenges as those matters related

18 to the various appealable orders that ensued. We only concern ourselves with the

19 process as it relates to his current motion to modify. Because we believe that our

3 1 analysis of his first two issues indicate that he was not denied due process with respect

2 to his motion, we do not believe that this claim has merit.

4 1 For the reasons set forth above, we affirm.

2 IT IS SO ORDERED.

3 _________________________ 4 MICHAEL E. VIGIL, Judge

5 WE CONCUR:

6 _________________________________ 7 JONATHAN B. SUTIN, Judge

8 _________________________________ 9 TIMOTHY L. GARCIA, Judge