Kimbrell v. Kimbrell ( 2010 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 WILLIAM DAVID KIMBRELL,
8 Petitioner-Appellant,
9 v. NO. 29,752
10 LORRAINE KIMBRELL,
11 Respondent-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 James A. Hall, District Judge
14 Gary W. Boyle
15 Santa Fe, NM
16 for Appellant
17 Sutin, Thayer & Browne, P.C.
18 James E. Bristol III
19 Michael J. Golden
20 Santa Fe, NM
21 for Appellee
22 Katherin M. Kinzner-Ellington
23 Ellington & Ellington LLC
24 Santa Fe, NM
25 Guardian ad Litem
26 MEMORANDUM OPINION
1 CASTILLO, Judge.
2 On appeal, Husband raises nine issues, all related to the district court’s
3 determinations made during his divorce and child custody proceedings. Having
4 reviewed Husband’s arguments, we are unpersuaded. Accordingly, we affirm.
5 BACKGROUND
6 The following is a brief recitation of the facts underlying this matter.
7 Additional facts will be developed, as necessary, in our discussion of each issue.
8 Husband and Wife married in Nevada in May 2002. Husband and Wife have resided
9 in New Mexico since 2005. During their marriage, they adopted three children. At
10 the time of trial, the adopted children were fifteen, thirteen, and nine. Husband and
11 Wife also had one biological child during their marriage. That child was four at the
12 time of trial.
13 Husband and Wife separated in April 2006. On May 10, 2006, Husband filed
14 a petition in district court indicating that Husband and Wife had permanently
15 separated. Husband sought an order of legal separation pursuant to NMSA 1978,
16 Section 40-4-3 (1973), dividing the community property and debts, defining Husband
17 and Wife’s parenting responsibilities, an order with regard to child support, and
18 implementation of the couple’s premarital agreement. Husband also sought the
19 appointment of a guardian ad litem (GAL) and a Rule 11-706 NMRA expert to
2
1 evaluate the needs of the children and make a recommendation to the court concerning
2 parenting. Finally, Husband requested that the court hear issues regarding an interim
3 division of income and debts.
4 On June 8, 2006, pursuant to a stipulation by the parties, the court entered an
5 interim order allocating income and expenses. Husband was ordered to pay Wife
6 $4,500 per month for Wife’s living expenses during the pendency of the divorce
7 proceedings.
8 On May 23, 2007, the court entered a stipulated order regarding custody of the
9 children. Pursuant to the recommendations of the appointed Rule 11-706 expert, Dr.
10 Zieman, the parties were granted joint custody of their biological child and modified
11 joint custody of the adopted children.
12 During the course of the divorce proceedings, Husband and Wife’s relationship
13 deteriorated significantly. Husband and Wife were unable to engage in basic
14 communication or interaction without controversy. Out of alleged concern for the
15 children’s welfare, Wife recorded several telephone conversations between Husband
16 and two of the children.
17 After numerous individual meetings with Husband, with Wife, and with the
18 children, Dr. Zieman submitted a final report in which he concluded that Husband and
19 Wife’s disagreements were intractable and that joint custody was no longer feasible
3
1 or in the best interests of the children. The GAL reached the same conclusions and
2 also submitted a final report to that effect.
3 Trial occurred over five days at the end of January and through the beginning
4 of February of 2009. The district court entered findings of fact and conclusions of law
5 in March of 2009. Those findings and conclusions were incorporated into the “Final
6 Decree of Dissolution of Marriage” that was entered in June 2009.
7 In the final decree, the court dissolved the marriage. Wife was awarded sole
8 custody of the couple’s biological child and sole custody of two of the adopted
9 children. Husband was awarded sole custody of the third adopted child. Pursuant to
10 the couple’s premarital agreement, Husband was ordered to pay Wife $4,920 per
11 month for twenty-four months in spousal support. The court found that Husband’s
12 annual income was $200,000 per year, actual or implied, and ordered Husband to pay
13 Wife $911.17 per month in child support.
14 The court awarded fees to the GAL and ordered Husband to pay the majority
15 of those fees. On June 22, 2009, the district court entered an order holding Husband
16 in contempt for failing to pay the GAL’s fees as instructed.
17 DISCUSSION
18 In his appeal, Husband claims the district court erred in (1) denying his request
19 for independent psychological evaluations of the children; (2) failing to offset the
4
1 spousal support awarded to Wife by the amount Husband agreed to pay Wife during
2 the pendency of the divorce; (3) altering custody of the children without considering
3 the requisite statutory factors; (4) terminating joint custody without first finding that
4 either parent was unfit; (5) improperly calculating Husband’s income for purposes of
5 child support; (6) admitting into evidence, listening to, and relying upon the telephone
6 conversations Wife surreptitiously recorded; (7) denying his motion to continue trial;
7 (8) holding him in contempt; and (9) permitting one of Wife’s witnesses to testify
8 telephonically at trial. We address these arguments in this order.
9 I. Husband’s Motion for Psychological Evaluation of the Children
10 Prior to trial, Husband moved for a psychological evaluation of the children by
11 a doctor retained by Husband. That motion was denied. Husband asserts that this
12 ruling was in error. According to Husband, the district court, by denying his motion
13 for a psychological evaluation of the children, effectively ignored the mental health
14 of the children in its custody determination contrary to NMSA 1978, Section 40-4-
15 9(A)(5) (1977). Similarly, Husband also argues that the district court failed to
16 consider the wishes of the children contrary to Section 40-4-9(A)(2). We are
17 unpersuaded.
18 “In any proceeding involving custody, the courts’ primary concern and
19 consideration must be for the child’s best interests.” Schuermann v. Schuermann, 94
5
1 N.M. 81, 83, 607 P.2d 619, 621 (1980). “In determining which parent will provide
2 best for those interests, courts should consider all relevant factors including, but not
3 limited to” the five enumerated factors in Section 40-4-9(A). Schuermann, 94 N.M.
4 at 83, 607 P.2d at 621. “The [district] court retains broad discretion and great
5 flexibility in fashioning a custody arrangement that will serve the best interests of the
6 children.” Thomas v. Thomas, 1999-NMCA-135, ¶ 10, 128 N.M. 177, 991 P.2d 77 (internal quotation marks and citation omitted). “We will overturn the [district]
8 court’s custody decision only for abuse of discretion, and we will uphold the court’s
9 findings if supported by substantial evidence.” Id. “Substantial evidence is such
10 relevant evidence as a reasonable mind might accept as adequate to support a
11 conclusion.” Register v. Roberson Constr. Co., 106 N.M. 243, 244, 741 P.2d 1364,
12 1366 (1987).
13 Husband’s allegation that the district court did not consider any evidence as to
14 the mental health of the children contrary to Section 40-4-9(A)(5) is unfounded.
15 Husband appears to assume that psychological testing was the only way to evaluate
16 the children’s mental health. This is not the case. The record reflects that Dr. Zieman
17 evaluated the family and submitted extensive reports about the emotional and mental
18 health of the children. The district court’s custody determination was based, in part,
19 on Dr. Zieman’s recommendations. Accordingly, Husband’s argument that the
6
1 children’s mental health was ignored by the district court in its custody determination
2 is without merit.
3 Husband’s claim that the district court failed to consider evidence pertinent to
4 the wishes of the children contrary to Section 40-4-9(A)(2) is equally unfounded. One
5 of the adopted children expressed fear of Husband. Therefore, Wife was given sole
6 custody of that child. One of the adopted children expressed her desire to remain in
7 Husband’s custody. Husband was given sole custody of that child. Evidence was
8 submitted that the third and youngest adopted child, who was nine at the time of trial,
9 was willing to do or say whatever was necessary to ensure that he continued to have
10 a home and receive attention. Under these circumstances, relying on that child’s
11 wishes would have been imprudent as they were an unreliable basis to ascertain what
12 was in that child’s best interest. The couple’s biological child was only four years old
13 at the time of trial. In this case, it would also have been imprudent to consider that
14 child’s wishes in ascertaining what was in her best interests given her young age. We
15 see no merit in Husband’s contention that the district court failed to consider the
16 children’s wishes. It considered them where appropriate.
17 We also disagree with Husband’s argument that the district court was required
18 to expressly set forth its consideration of each enumerated factor in Section 40-4-9(A).
19 The plain language of Section 40-4-9(A) requires the court to consider “all relevant
7
1 factors” in determining what is in the child’s best interest. This language does not
2 compel the district court to expressly state whether each enumerated factor was
3 pertinent to the court’s determination and how. Husband’s reliance on Taylor v.
4 Tittman, 120 N.M. 22, 896 P.2d 1171 (Ct. App. 1995), and State ex rel. Children,
5 Youth and Families Department v. Michelle B., 2001-NMCA-071, 130 N.M. 781, 32
6 P.3d 790 is similarly misplaced. These cases do not support his contention that the
7 district court must expressly state how it considered each of the five enumerated
8 factors.
9 In Taylor, we held that “joint custody cannot be terminated except after a
10 hearing following specific notice that continuation of joint custody will be at issue.”
11 Taylor, 120 N.M. at 25, 896 P.2d at 1174. Our conclusion that sufficient notice was
12 a prerequisite was partly premised on our observation that a district court must
13 consider the enumerated factors in Section 40-4-9(A) along with all other relevant
14 factors when deciding whether to terminate joint custody. Taylor, 120 N.M. at 25,
15 896 P.2d at 1174. Sufficient notice, we reasoned, would ensure that the parties had
16 ample opportunity to develop facts pertinent to the relevant factors. Id. In Michelle
17 B., we held that the district court abused its discretion in failing to make any of “the
18 required findings addressing the best interests of [the child]” and observed that several
19 of the court’s findings were inconsistent with its conclusion that termination was
8
1 warranted. Michelle B., 2001-NMCA-071, ¶ 27. We find nothing in these cases
2 which supports Husband’s contention that a district court is required to expressly set
3 forth its consideration of each enumerated factor in Section 40-4-9(A) when issuing
4 a custody order.
5 II. Spousal Support Under the Premarital Agreement
6 Husband and Wife entered into a premarital agreement which established the
7 amount of spousal support Wife would be entitled to upon divorce. During the
8 pendency of the divorce proceedings, Husband provided monthly payments to Wife
9 for her living expenses pursuant to the stipulated interim order allocating income and
10 expenses. Husband now argues that the district court erred in refusing to offset Wife’s
11 spousal support award by the amount Wife received during the pendency of the
12 divorce proceedings. Husband claims that, as a consequence of the court’s refusal to
13 offset, Wife received an award of spousal support in excess of her entitlement under
14 the premarital agreement. We disagree.
15 Resolution of this issue turns on interpretation of Husband and Wife’s
16 premarital agreement. A premarital agreement is a contract. Lebeck v. Lebeck, 118
17 N.M. 367, 373, 881 P.2d 727, 733 (Ct. App. 1994). “The interpretation of a contract
18 is an issue of law that we review de novo.” Mueller v. Sample, 2004-NMCA-075, ¶ 8,
19 135 N.M. 748, 93 P.3d 769. “It is a well established principle of contract law that
9
1 courts will not rewrite a contract for the parties. It is also established that courts will
2 apply the plain meaning of the contract language as written in interpreting terms of a
3 contract.” Christmas v. Cimarron Realty Co., 98 N.M. 330, 332, 648 P.2d 788, 790
4 (1982) (citations omitted).
5 The district court concluded that Husband was not entitled to offset the spousal
6 support Wife was entitled to under the premarital agreement for the following reasons:
7 (1) both the premarital agreement and the interim order were silent as to the question
8 of offsets, and (2) the parties stipulated to the interim order. As discussed below,
9 these conclusions are sound.
10 The district court’s conclusion that both the premarital agreement and interim
11 order are silent on this issue is correct. The pertinent provision in the premarital
12 agreement includes the following language in a section discussing the termination of
13 marriage by divorce or decree of separate maintenance:
14 In the event of termination of this marriage by reason of divorce . . . the
15 parties agree as follows:
16 ....
17 (e) Neither party shall claim any amount for temporary or
18 permanent maintenance or alimony, except that [Husband] would agree
19 to pay [Wife] according to the following schedule[:]
20 ....
21 (ii) If married more than two (2) years but less than seven
10
1 (7) years, the sum of $50,000[] for two (2) years[.]
2 There is nothing in this provision which addresses offsets. At the very most, the plain
3 language of this provision bars Wife from “claiming” temporary or permanent
4 maintenance beyond that which she was entitled to under the premarital agreement.
5 Husband does not argue that the money Wife received pursuant to the stipulated
6 interim order constitutes a claim. Husband relies on the bald assertion that it is
7 obvious that the money Wife received under the interim order is temporary for
8 maintenance or alimony. Husband, however, fails to provide evidence that this was
9 the parties’ understanding, nor does he cite any authority for this proposition. See ITT
10 Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M.
11 244, 959 P.2d 969 (refusing to consider a proposition not supported by authority).
12 Further, the interim allocation of income and expenses was a stipulated order.
13 Husband included no language alerting Wife to his current interpretation of the
14 premarital agreement. Thus, the stipulated order is silent as to the issue of offsets.
15 Based on the foregoing, we hold that the district court correctly interpreted the terms
16 of the premarital agreement and that its award was appropriate under the terms of that
17 agreement.
18 III. Change in Custody
19 Husband argues that the district court terminated joint custody without
11
1 considering all of the factors in Section 40-4-9 and NMSA 1978, Section 40-4-9.1
2 (1999). Husband claims that because the court did not address all of the factors in
3 these statues, the order was erroneous as a matter of law.
4 As proof of his claim, Husband merely set out a bullet list of the factors in the
5 statutes cited above and, without citation or explanation, states that the district court
6 failed to consider the factors. In contrast, both Wife and the GAL direct us to specific
7 portions of the record which directly contradict Husband’s claims and which
8 demonstrate that evidence pertinent to the factors was indeed considered. Because
9 Husband’s argument is gravely underdeveloped and is plainly inconsistent with the
10 record, we decline to further review it. See Headley v. Morgan Mgmt. Corp.,
11 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a
12 cursory argument that relied on several factual assertions that were made without
13 citation to the record).
14 IV. Joint Custody Presumption
15 Husband argues that the district court erred in deciding that each parent should
16 have sole custody of specific children. Husband claims that the grounds cited for this
17 order were insufficient and that the court was required to find that the parents were
18 unfit before awarding sole custody. New Mexico law requires no such finding in
19 these circumstances.
12
1 “There shall be a presumption that joint custody is in the best interests of a child
2 in an initial custody determination.” Section 40-4-9.1(A).
3 With respect to any proceeding in which it is proposed that joint custody
4 be terminated, the court shall not terminate joint custody unless there has
5 been a substantial and material change in circumstances affecting the
6 welfare of the child, since entry of the joint custody order, such that joint
7 custody is no longer in the best interests of the child.
8 Id. “The [district] court retains broad discretion and great flexibility in fashioning a
9 custody arrangement that will serve the best interests of the children.” Thomas, 1999-
10 NMCA-135, ¶ 10 (internal quotation marks and citation omitted). “We will overturn
11 the [district] court’s custody decision only for abuse of discretion, and we will uphold
12 the court’s findings if supported by substantial evidence.” Id.13 On May 23, 2007, the district court entered a preliminary order granting
14 Husband and Wife joint custody of their biological child and joint modified custody
15 of their adopted children. This custody determination was based on the
16 recommendations of Dr. Zieman. The district court modified custody in its final order
17 based on updated recommendations from the GAL and Dr. Zieman.
18 The GAL observed that Husband and Wife’s inability to co-parent and
19 Husband’s inability to place the children’s well being and relationships with one
20 another above his own desire to alienate Wife necessitated an award of sole custody.
21 Dr. Zieman reached the same conclusion but was far more explicit in condemning
13
1 both Husband and Wife’s conduct. In Dr. Zieman’s view, Husband and Wife are not
2 concerned with the best interests of their children but are primarily focused on
3 defeating one another and winning control over financial resources. Accordingly, Dr.
4 Zieman concluded that sole legal custody was not only prudent but necessary. This
5 arrangement, Dr. Zieman found, would most effectively limit the amount of
6 interaction between Husband and Wife which would in turn protect the children from
7 being further ensnared in Husband and Wife’s ongoing and intractable feud. This
8 evidence plainly supports the district court’s conclusion that the circumstances since
9 the initial custody determination had changed materially and that joint custody was
10 no longer in the children’s best interests.
11 Relying on Section 40-4-9.1(A), Husband argues that a presumption in favor
12 of joint custody had to be overcome before the district court could modify the initial
13 custody determination. Husband misreads the statute. It states that the presumption
14 in favor of joint custody is applicable only to the initial custody determination.
15 Section 40-4-9.1(A). Thereafter, with regard to any proceeding where it is proposed
16 that joint custody should be terminated, it is only necessary for the court to be satisfied
17 that a substantial and material change in circumstances supports the conclusion that
18 joint custody is no longer in the child’s best interest. Id.19 Relying on Sanchez v. Sanchez, 107 N.M. 159, 754 P.2d 536 (Ct. App. 1988),
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1 Husband contends that the district court was required to issue a finding regarding
2 parental fitness before it could award sole custody. Husband correctly observes that
3 in Sanchez we found parental fitness significant for purposes of determining whether
4 joint custody was in the child’s best interest. Id. at 162, 754 P.2d at 539. However,
5 Husband overlooks the fact that the former version of Section 40-4-9.1—the version
6 predating the 1986 amendments to that statute—controlled in Sanchez. Id. at 161, 754
7 P.2d at 538. The prior version of Section 40-4-9.1 did not include a list of factors to
8 guide courts in assessing the best interests of a child in a custody dispute. Compare
9 § 40-4-9.1(B) (1981), with § 40-4-9.1(B) (1986). We relied on case law in Sanchez
10 as the basis for our conclusion that parental fitness was an appropriate consideration.
11 Sanchez, 107 N.M. at 162-63, 754 P.2d at 539-40. The 1986 amendments did not
12 incorporate parental fitness as a factor. The present matter is controlled by the current
13 version of Section 40-4-9.1 and, therefore, the district court was under no obligation
14 to consider parental fitness in rendering its custody determination.
15 V. Imputed Income
16 Husband argues that the district court incorrectly calculated his annual income
17 for purposes of awarding child support. Specifically, he claims the district court erred
18 in imputing $200,000 of income to him. We find no error in the district court’s
19 assessment of Husband’s income.
15
1 “Findings made by the district court about the parents’ incomes, as required by
2 the guidelines to apportion child support, are reviewed to determine whether they are
3 supported by substantial evidence.” Grant v. Cumiford, 2005-NMCA-058, ¶ 21, 137
4 N.M. 485, 112 P.3d 1142. With respect to Husband’s finances, the district court
5 found that Husband is a serial entrepreneur engaged in the buying and selling of
6 businesses, that Husband presently owns a company involved in the natural gas
7 business which he bought for two million dollars, and that Husband expects to earn
8 $200,000 annually from this business.
9 The district court’s decision to rely on Husband’s own testimony regarding
10 income to reach a determination regarding his actual income is appropriate under our
11 case law. In Talley v. Talley, 115 N.M. 89, 91, 847 P.2d 323, 325 (Ct. App. 1993), we
12 held that a district court was entitled to consider potential as well as actual, present
13 income to calculate a parent’s gross income for purposes of child support.
14 Accordingly, even if Husband were merely estimating that he would earn $200,000
15 annually, it was not error for the district court to rely on Husband’s estimation as
16 potential income.
17 Accordingly, we hold that the district court’s finding that Husband’s annual
18 income was $200,000 is supported by substantial evidence. Furthermore, we reject
19 Husband’s argument that the district court erred by imputing income to him. The
16
1 district court’s conclusion that Husband’s annual income was $200,000 was based on
2 Husband’s own testimony of his income.
3 VI. Telephone Recordings
4 Prior to trial, Wife recorded several phone conversations between Husband and
5 two of the children using a handheld tape recorder and the speaker phone option on
6 her home telephone. She testified that she recorded the conversations out of concern
7 for the children’s well being; she claimed the children appeared to be adversely
8 impacted after speaking with Husband, and she thus felt it was appropriate to monitor
9 the calls. The district court concluded that Wife’s decision to record the conversations
10 did not violate Husband’s constitutional rights and that the recordings were
11 admissible.
12 Husband, citing 18 U.S.C. § 2515 (1968)—a federal statute that Husband
13 contends prohibits the admission of evidence derived from intercepted telephone
14 calls—argues that the district court committed reversible error in admitting the
15 recordings. Husband requests that we reverse the district court’s order and remand the
16 matter for a new trial in which the tape recordings are not considered by the court, the
17 Rule 11-706 expert, or the GAL. There are significant problems with Husband’s
18 arguments.
19 Husband fails to include “a statement explaining how th[is] issue was preserved
17
1 in the court below” in his brief in chief, contrary to Rule 12-213(A)(4) NMRA. There
2 is nothing in Husband’s brief describing the contents of the taped conversations.
3 Furthermore, aside from simply stating the plain language of 18 U.S.C. § 2515 and
4 claiming that admission of the tapes was a “material error,” Husband has provided us
5 no argument or guidance as to how this alleged error constituted reversible error. See
6 ITT Educ. Servs., Inc., 1998-NMCA-078, ¶ 10 (refusing to consider a proposition not
7 supported by authority). Furthermore, even if we were to find the recordings were
8 erroneously admitted, and that in doing so a reversible error was committed, Husband
9 also fails to provide any argument as to the legal consequences of this error. See id.10 He simply wants the matter remanded for a new trial. There is no basis for this. See
11 id.12 Despite Husband’s contention that the recordings were admitted over his
13 objection, Husband failed to direct us to the location in the record where that objection
14 can be found. “We will not search the record for facts, arguments, and rulings in order
15 to support generalized arguments.” Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M.
16 451, 200 P.3d 104 (filed 2008). The citation Husband provided, conclusion of law
17 forty-five in the record proper at volume six on page 1464, does not lead us to an
18 objection of any kind. In fact, it is an incorrect citation; conclusion of law forty-five
19 is on page 1463 of the record proper. There is nothing regarding Husband’s alleged
18
1 objection in this conclusion of law.
2 Husband claims that the district court admitted into evidence, listened to, and
3 relied upon illegally obtained tape recordings of the recorded conversations. We
4 cannot evaluate this contention because Husband fails to direct us to any portion of
5 the record to support this claim. See id. Husband also fails to cite any finding of fact,
6 conclusion of law, or any other order which would support his assertion that the
7 district court relied on the recorded conversations in rendering any portion of its final
8 order. See id. Our review of the order suggests that the opposite is true: the district
9 court did not rely on the recorded conversations.
10 The telephone recordings were mentioned in the following portions of the
11 order: findings of fact fifty through fifty-six and sixty and conclusions of law forty-
12 three through forty-six. In these findings and conclusions, the court described Wife’s
13 motivation for making the recordings, determined that Dr. Zieman’s findings and
14 recommendations were not based on the recorded telephone conversations, concluded
15 that Wife did not violate Husband’s rights in making the recordings, and concluded
16 that the recordings were admissible under 18 U.S.C. § 2510(5)(a) and 18 U.S.C. §
17 2511 (2008). These findings and conclusions do not support Husband’s factual
18 assertion that the district court relied on the recordings in rendering its custody
19 determination. If there are findings and conclusions that do support his claim, it was
19
1 incumbent upon Husband to bring those to our attention.
2 Husband also claims that the district court admitted testimony and other
3 evidence from expert and other witnesses who relied on the content of the recordings.
4 Husband again fails to cite the record to support these factual assertions. Furthermore,
5 these claims are thoroughly unspecific. Husband fails to explain what “testimony” or
6 “other evidence” he is referring to and which experts relied upon it. In the opening
7 portions of his brief in chief, Husband argues that both the recommendation of the
8 GAL and Dr. Zieman’s Fourth Family Psychological Evaluation were based on the
9 content of the recorded phone calls. Presumably, this argument relates to Husband’s
10 contention that “expert” and “other witnesses” relied on the recorded conversations,
11 but again Husband fails to cite the record to substantiate his claims regarding the GAL
12 and Dr. Zieman’s reports. Nor does Husband clarify which GAL report he was
13 referring to.
14 There is yet one additional and critical problem with Husband’s contention that
15 expert and other witnesses relied on the content of the recordings. Our review of the
16 reports that the court relied on for its custody determination—the GAL’s January 20,
17 2009 recommendation and Dr. Zieman’s Fourth Family Psychological Evaluation—
18 reveals that they are not based on the recorded conversations. With respect to Dr.
19 Zieman’s final recommendation, the Fourth Family Psychological Evaluation, the
20
1 district court expressly found that it was not based on the recorded conversations.
2 With respect to the GAL’s January 20, 2009 recommendation, the recorded
3 conversations are not mentioned anywhere in that report.
4 We decline to further address the arguments in this section of Husband’s brief
5 because those arguments are inadequately developed, are not sufficiently clear, and
6 because Husband has not complied with our rules of appellate procedure in this
7 section of his brief.
8 VII. Continuance
9 On January 13, 2009, the district court issued a notice of hearing informing the
10 parties that trial would commence on January 26, 2009. The district court previously
11 consulted the parties at a motions hearing on January 8, 2009, as to whether this
12 proposed trial date was acceptable. On January 21, 2009, Husband submitted a
13 motion to continue the trial date. The district court denied that motion. Husband
14 argues that the district court’s decision to deny his motion violates the First Judicial
15 District’s local rules. We are unpersuaded.
16 “The granting or denying of continuances is a matter within the sound
17 discretion of the [district] court, and such actions will be reviewed only where
18 palpable abuse of discretion is demonstrated.” Schmider v. Sapir, 82 N.M. 355, 358,
19 482 P.2d 58, 61 (1971). Husband does not argue that the district court abused its
21
1 discretion in denying his motion to continue. Rather, Husband claims that the district
2 court’s order violated Local Rule 1-401 NMRA. That rule, which governs settings in
3 the First Judicial District, states “[a]s a general rule, notice of settings shall be given
4 counsel at least four (4) weeks prior to the trial or hearing date but shorter notice may
5 be given upon the consent and agreement of counsel or where, in the discretion of the
6 judge, less notice is required.” Local Rule 1-401A. The plain language of this rule
7 provides that courts in the First Judicial District shall provide parties forty weeks’
8 notice of a setting but may schedule settings that would result in a shortened period
9 of notice at their discretion. In the present matter, the district court’s decision to
10 provide a shortened period of notice was not an abuse of discretion.
11 VIII. Contempt
12 After trial, the court awarded fees to the GAL and ordered Husband to pay the
13 majority of them. At a hearing on the GAL’s fees on May 29, 2009, Husband claimed
14 that he could not afford the fees. The district court observed that Husband, because
15 he was uncooperative and difficult, was partly to blame for the amount of the GAL’s
16 fees. The court concluded that the fees were reasonable and ordered Husband to pay
17 them.
18 On June 18, 2009, the district court held a hearing on an order to show cause
19 as to why Husband had not paid the GAL as ordered. Husband was present and
22
1 testified at that hearing. Husband again claimed that he could not afford the fees. The
2 district court rejected this claim and again ordered Husband to pay them. The district
3 court warned Husband that if he failed to comply, he would be held in contempt and
4 would be jailed.
5 On June 22, 2009, the district court entered an order holding Husband in
6 contempt for failing to pay the GAL’s fees as ordered. In the order, the district court
7 established a payment schedule whereby Husband was required to pay certain
8 amounts by specific dates. The first payment date was June 26, 2009. According to
9 the order, if Husband failed to submit $40,000 to the GAL by that date, he would be
10 required to report to the Santa Fe County Detention Center to begin serving a sixty-
11 day sentence. Additional payment dates were scheduled for July 30, 2009, and
12 August 30, 2009. The order also commanded Husband to make timely payment of all
13 future GAL fees that he may be ordered to pay. Husband submitted payment on June
14 26, 2009 as ordered. Husband complied with the remaining scheduled payment dates.
15 Husband argues that the district court committed reversible error in finding him
16 in contempt. This claim is based on two grounds. First, Husband asserts that he
17 received inadequate notice of the contempt proceeding. Second, Husband argues that
18 he was entitled to a jury trial on the contempt charge. We are unpersuaded by both
19 arguments.
23
1 As early as May 29, 2009, Husband was aware of the order requiring him to pay
2 the GAL’s fees, and he unsuccessfully argued that he could not afford to pay them.
3 Husband was present and testified at the June 18, 2009 hearing on the order to show
4 cause as to why he refused to pay the GAL’s fees. The district court explicitly
5 informed Husband at that hearing that it rejected his allegation that he could not afford
6 the GAL’s fees, that he was required to pay those fees, and that failure to comply with
7 the court’s order would result in a finding of contempt. Husband did not comply with
8 the court’s order. On June 22, 2009, Husband was found to be in contempt. Husband
9 cannot complain of lack of notice. He was personally informed on June 18, 2009 by
10 the court of the consequences of disobeying its order and was not held in contempt
11 until after he failed to pay.
12 Husband also contends that he is entitled to a jury trial for the contempt charge.
13 New Mexico case law does not support this position. “[T]here is no right to a jury
14 trial for contempt charges except where potential criminal sanctions exceed six
15 months in jail or a fine of more than $1000[.]” Chaara v. Lander, 2002-NMCA-053,
16 ¶ 19, 132 N.M. 175, 45 P.3d 895. Husband was informed that he would be sentenced
17 to sixty days in jail unless he complied with the payment schedule. Husband
18 interprets the order as potentially subjecting him to a minimum of four potential sixty-
19 day sentences. The language of the order, however, does not support this contention.
24
1 The contempt order commands Husband to render payment as scheduled and threatens
2 a single, sixty-day sentence for failure to comply. As Husband was not sanctioned
3 with a potential jail sentence exceeding six months, he was not entitled to a jury trial.
4 Furthermore, Husband was held in civil contempt—not criminal contempt. The
5 clear purpose of the contempt finding and potential sanction was to ensure Husband
6 complied with the court’s decision to award the GAL fees. See State ex rel. Bliss v.
7 Greenwood, 63 N.M. 156, 159, 315 P.2d 223, 225 (1957) (“Where the primary
8 purpose is to provide a remedy for an injured suitor and to coerce compliance with an
9 order, the contempt is civil.”). There are important distinctions between civil and
10 criminal contempt. See In re Klecan, 93 N.M. 637, 638, 603 P.2d 1094, 1095 (1979)
11 (“Civil contempts are those proceedings instituted to preserve and enforce the rights
12 of private parties to suits and to compel obedience to the orders, writs, mandates and
13 decrees of the court; whereas criminal contempt proceedings are instituted to preserve
14 the authority and vindicate the dignity of the court.”). Husband does not address
15 whether a sanction for civil contempt may be considered a criminal sanction. As
16 discussed, a party is entitled to a jury trial on a contempt charge only where criminal
17 sanctions are involved.
18 The district court committed no error in holding Husband in contempt.
19 IX. Allowing Telephonic Trial Testimony
25
1 Husband’s final argument concerns the district court’s decision to permit Steven
2 Parker (Parker), a witness for Wife who was residing in Great Britain at the time of
3 trial, to testify by telephone. Husband makes four arguments in support of his
4 contention that the district court erred in permitting Parker to testify. First, relying on
5 federal and out of state authorities, Husband argues that witnesses must testify in
6 person to ensure that they are properly identified. Second, citing a legal treatise and
7 a New Mexico Attorney General opinion, Husband claims that witnesses must appear
8 in person so that the oath can be properly administered ensuring truthful testimony.
9 Third, Husband claims that there is no rule in New Mexico which permits witnesses
10 to testify telephonically at trial and that Rule 1-043 NMRA prohibits such testimony.
11 Fourth, Husband argues that there are “sound policy considerations” prohibiting
12 telephonic testimony, including that the district court will not be able to assess witness
13 credibility, that witnesses might not testify truthfully, that witnesses will not
14 understand the significance of the penalty for perjury, and that witnesses might be
15 subject to outside influences requires in person testimony at trial.
16 We may summarily dismiss Husband’s fourth argument, the argument based
17 on public policy, because he again fails to cite any authority for these assertions. See
18 ITT Educ. Servs., Inc., 1998-NMCA-078, ¶ 10 (refusing to consider a proposition not
19 supported by authority). As we explain below, Husband’s other arguments were not
26
1 preserved.
2 In his brief in chief, Husband did not cite to where in the record he preserved
3 his arguments. In his reply brief, Husband did cite to the record, but the citation
4 Husband provided relates to the testimony of Dr. Siegel, not to the objections to
5 Parker’s telephonic testimony.
6 Wife did provide the correct citation to the record containing the discussion
7 preceding Parker’s testimony. As Wife points out, the parties addressed whether
8 Parker should be allowed to testify by telephone beginning at 1:40:30 and ending at
9 1:43:50 on January 26, 2009. The district court first asked Wife to describe what she
10 anticipated Parker would say. The district court then asked Husband to clarify the
11 basis of his objection to allowing Parker to testify. Husband opposed allowing Parker
12 to testify by telephone and claimed that Parker was biased in favor of Wife and angry
13 with Husband. In Husband’s view, it was necessary for Parker to be present so that
14 Parker would have to look at Husband while testifying and to ensure meaningful cross
15 examination. Husband alleged that Parker left the United States without consulting
16 Husband and purchased his plane ticket with a credit card associated with Husband’s
17 business.
18 The district court then asked the GAL to express her opinion on the matter. The
19 GAL thought Parker’s testimony was significant and asked the court to allow him to
27
1 testify.
2 Based on the foregoing, the district court concluded that Parker should be
3 permitted to testify by telephone. The court weighed the importance of Parker’s
4 testimony against the fact that he was living overseas and could not be present in
5 court. The court ruled that the balance weighed in favor of allowing Parker to testify.
6 The court acknowledged Husband’s argument regarding bias and informed Husband
7 that he would carefully consider the issue of Parker’s credibility.
8 The foregoing summary of the arguments made at trial establishes that Husband
9 did not preserve the arguments he now makes on appeal. He did not contend that
10 Parker’s absence would prevent the court from properly identifying Parker. He did
11 not contend that Parker’s absence would prevent the court from properly
12 administering the oath, which would in turn prevent Parker from testifying truthfully.
13 Finally, he did not contend that Rule 1-043 prohibits Parker from testifying by
14 telephone. Because Husband failed to preserve these arguments, we decline to further
15 review them. See Smith v. Vill. of Ruidoso, 1999-NMCA-151, ¶ 39, 128 N.M. 470,
16 994 P.2d 50 (declining to address arguments not made at trial for lack of
17 preservation).
18 CONCLUSION
19 For the foregoing reasons, we affirm.
28
1 IT IS SO ORDERED.
2 ________________________________
3 CELIA FOY CASTILLO, Judge
4 WE CONCUR:
5 __________________________________
6 JAMES J. WECHSLER, Judge
7 __________________________________
8 ROBERT E. ROBLES, Judge
29