HSD v. Salazar ( 2011 )

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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 STATE EX REL. HUMAN SERVICES
8 DEPARTMENT,
9 Petitioner-Appellee,
10 v. NO. 31,388
11 LEROY SALAZAR,
12 Respondent-Appellant.
13 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
14 John F. Davis, District Judge
15 Lila Bird
16 Santa Fe, NM
17
18 for Appellee
19 Leroy Salazar
20 Rio Rancho, NM
21 Pro Se Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
24 Respondent appeals from the district court’s order adopting the
25 recommendation of the child support hearing officer and requiring Respondent to pay
1 $1,000 per month in child support arrears via wage withholding. [RP 214-15, 229]
2 The district court’s order was entered on May 10, 2011. [RP 229] Respondent filed
3 a pro se notice of appeal with the district court on Friday, June 10, 2011. [RP 231]
4 This Court issued a calendar notice proposing to dismiss Respondent’s appeal as
5 untimely.
6 This Court issued a calendar notice proposing to conclude that Respondent’s
7 appeal from the aforementioned order was not timely filed, because it was filed
8 outside the thirty day period provided by our rules. See Rule 12-202(A) NMRA; Rule
9 12-201(A)(2) NMRA. We pointed out that the timely filing of a notice of appeal is
10 a mandatory precondition to the exercise of our jurisdiction. See Govich v. N. Am.
11 Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991). We instructed Respondent to
12 inform this Court if there were any unusual circumstances that would permit this
13 Court to exercise its discretion and entertain Respondent’s appeal despite his untimely
14 notice. [CN 3] See Romero v. Pueblo of Sandia, 2003-NMCA-137, ¶ 6, 134 N.M.
15 553, 80 P.3d 490 (recognizing that this Court will not ordinarily entertain an appeal
16 in the absence of a timely notice, but that unusual circumstances create an exception
17 that “warrant[s] permitting an untimely appeal” (quoting Trujillo v. Serrano, 117 N.M.
18 273, 278, 871 P.2d 369, 374 (1994)).
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1 Respondent has filed a memorandum in opposition arguing that (1) he is pro se
2 and understanding the rules and requirements of filing is difficult, (2) the Thirteenth
3 Judicial District Court limited his access to the court, and (3) a holiday was included
4 in the time period, which would make his appeal timely. To the extent Respondent
5 contends that his appeal was timely, we disagree. Respondent argues that Memorial
6 Day fell within the thirty day time period for filing his notice of appeal. Respondent
7 argues that according to our rules holidays are not counted. Our rules provide that a
8 holiday should not be counted when it would be the last day of a computed period of
9 time or when the time a litigant has to act is less than eleven days. See Rule 12-308
10 NMRA. Neither of these circumstances applies here; therefore, the fact that Memorial
11 Day fell within the thirty-day period Respondent had for filing does not have any
12 effect on Respondent’s deadline for filing his notice of appeal.
13 To the extent Respondent relies on his pro se status or the limited filing hours
14 at the Thirteenth Judicial District as unusual circumstances, we conclude that these
15 circumstances are not of the type that would permit this Court to hear Respondent’s
16 appeal despite his untimely notice. Generally, this Court will only exercise its
17 discretion to hear an appeal despite an untimely notice when the untimely filing arises
18 from circumstances outside of the litigant’s control, such as court error. Trujillo, 117
19 N.M. at 278, 871 P.2d at 374 (“Only the most unusual circumstances beyond the
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1 control of the parties—such as error on the part of the court—will warrant
2 overlooking procedural defects.”). To the extent Respondent relies on his pro se
3 status, a pro se litigant is held to the “same standard of conduct and compliance with
4 court rules, procedures, and orders as are members of the bar.” Newsome v. Farer,
5 103 N.M. 415, 419, 708 P.2d 327, 331 (1985). Furthermore, to the extent
6 Respondent relies on the Thirteenth Judicial District’s policy of not permitting pro se
7 filings after noon on Fridays, Respondent does not contend that this policy actually
8 impacted his ability to timely file his notice of appeal.
9 For the reasons stated above and in this Court’s notice of proposed disposition,
10 we dismiss.
11
12 MICHAEL D. BUSTAMANTE, Judge
13 WE CONCUR:
14
15 JAMES J. WECHSLER, Judge
16
17 TIMOTHY L. GARCIA, Judge
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