Techau v. Walker ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39699
HEATHER J. TECHAU,
Petitioner-Appellee,
v.
JASON E. WALKER,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Daniel A. Bryant, District Court Judge
Erinna Marie Atkins
Alamogordo, NM
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Jocelyn Drennan
Albuquerque, NM
for Appellee
Cordell Law, LLP
Linda L. Ellison
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
DUFFY, Judge.
{1} Father appeals the district court’s denial of his motion for order to show cause.
He argues that the district court erroneously found that Mother did not violate the
parties’ various child custody orders, and thereby erred in failing to award Father
attorney fees and reimbursement for travel expenses incurred while visiting the parties’
then minor child (Daughter). Father also claims that the district court should not have
denied admission of a summary exhibit at the hearing on the motion for order to show
cause. We affirm.
DISCUSSION
I. The District Court Did Not Abuse Its Discretion in Denying Father’s Motion
for Order to Show Cause
{2} Father filed a motion for order to show cause asking the district court to find that
Mother had violated various child custody orders. Father argued that Mother had
violated several terms in the parties’ previous custody orders; in particular, the following:
[Father] will be able to maintain the same visitation schedule he currently
has and the relationship between [Daughter] and [Father] will not be
adversely affected by the relocation to Las Vegas, Nevada.
....
[Mother] is required to make the child available for visits with [Father], and
the child does not have veto power over court ordered visits.
....
[Mother] shall be required to bear the expense of travel for [Daughter] to
travel to visit [Father].
{3} Father argued that Mother had “actively interfered with the timesharing,
undermined the timesharing by scheduling other events, or left the matter of timesharing
totally up to [Daughter] and this has resulted in Father missing many of his court
ordered periods of responsibility.” Father continued, “[g]iven [Mother’s] complete failure
to comply with sending [Daughter] for timesharing, Father made trips to Las Vegas,
Nevada to exercise his timesharing. Father should be reimbursed his travel expenses
including flights and/or mileage, any rental car expense, and lodging [to] exercise
timesharing.” Father also requested attorney fees associated with the motion.
{4} Following an evidentiary hearing on the motion, the district court declined to hold
Mother in contempt, concluding that Mother had reasonably fulfilled the requirement to
make Daughter available for visits with Father. The district court observed that “[t]here is
no Court Order or anywhere that requires [Mother] to pay for flights for [Daughter] in
order to visit [Father],” and that “[Mother] had made reasonable accommodations to pay
for [Daughter]’s travel between Las Vegas and Phoenix by purchasing a Jeep, making
sure that it was well-maintained, paying for fuel for the trips and offering to accompany
[Daughter] on the trips.” According to the order, “[Father] did not like that and chose, on
occasions, to fly [Daughter] to and from Phoenix.”
{5} As for the visitation schedule, the district court noted that Daughter and Father
made arrangements for visitation directly and that they often accommodated conflicts in
Daughter’s schedule that arose due to her interests, aspirations, responsibilities, and
desires except for on one occasion. Child was a teenager at the time and had turned
eighteen before the hearing in this matter. The district court found that “[t]he record in
this matter does not establish that [Daughter] in this case was exercising unfettered veto
power over visitation.” The court also found that Father had not timely notified Mother
that he had an issue as to the travel costs and had not sought to resolve the dispute via
mediation before seeking court intervention, as required by the February 13, 2017 order
regarding custody and visitation—one of the very orders Father alleged Mother had
violated in his motion for order to show cause.
{6} On appeal, Father argues that the district court erred in not finding Mother in
contempt. In a proceeding to determine whether there has been a violation of a child
custody order, “[a] trial court has wide discretion in determining whether to hold a
person in contempt.” See Ingalls v. Ingalls, 1994-NMCA-148, ¶ 14, 119 N.M. 85, 888
P.2d 967. We conclude the district court did not abuse its discretion in refusing to hold
Mother in contempt because the court found that Mother had reasonably complied with
the requirements of the court’s child support order, and substantial evidence supports
that determination. See id.; see also Clayton v. Trotter, 1990-NMCA-078, ¶ 5, 110 N.M.
369, 796 P.2d 262 (noting that we review a district court’s order for an abuse of
discretion and uphold its findings when supported by substantial evidence).
{7} At the hearing on the motion, Father, Mother, and Daughter testified about how
they had arranged visitation. Father admitted that Mother had not agreed to pay or
reimburse him for travel costs. He also acknowledged that, under the previous child
custody order, Mother was only responsible for paying Daughter’s travel expenses to
visit him. Finally, Father recognized that Daughter had traveled to see him even when
she had not wanted to visit.
{8} Mother, in turn, acknowledged that she had to pay for Daughter to visit Father.
Mother testified that she could not afford flights, but stated that she had purchased a
Jeep, paid for insurance, registration, maintenance, and fuel, and offered to drive to
Phoenix with Daughter to see other family and friends while Daughter visited Father.
Mother also testified she had persuaded Daughter to visit Father at times when
Daughter did not wish to travel to Phoenix. Daughter confirmed that Mother had
required her to visit Father even when she wished otherwise, and that Mother had never
denied her money for travel to visit Father. In addition to the testimony of the parties, the
district court admitted emails between Father and Mother detailing Daughter’s missed
trips to Phoenix and Mother’s reassurance that Daughter would be available for visits
and Mother would provide resources for her travel.
{9} Father does not directly challenge the district court’s findings regarding Mother’s
reasonable efforts to facilitate visitation, but points instead to his own testimony as
evidence that Mother had “interfered with the timesharing, undermined the timesharing
by scheduling other events thereby making [Daughter] unavailable, or left the matter of
timesharing totally up to [Daughter] to work out directly with [Father].” Notwithstanding
this, it was for the district court to weigh the evidence and, as discussed above, the
evidence presented at the hearing supports the district court’s ultimate finding that
Mother had not violated the custody orders. Mother made Daughter available for visits,
provided the means for Daughter to travel when she desired, encouraged Daughter to
visit Father even when she did not want to, and demonstrated that Daughter did not
exercise unrestricted veto power. Consequently, the district court did not abuse its
discretion in denying Father’s motion for order to show cause.
{10} As for Father’s request for reimbursement for expenses he incurred in exercising
timesharing, the district court noted at the hearing that there was no basis in any of the
prior court orders for requiring Mother to reimburse Father for his travel costs. Given this
and the fact that Mother ultimately prevailed below, we perceive no abuse of discretion
in the district court’s decision to deny Father’s request for reimbursement or in the
court’s ruling that Father will be responsible for his own attorney fees. See Corliss v.
Corliss, 1976-NMSC-023, ¶ 15, 89 N.M. 235, 549 P.2d 1070 (“The matter of attorney’s
fees also lies within the discretion of the court.”). For the foregoing reasons, we affirm
the district court’s denial of Father’s motion for order to show cause and denial of
Father’s request for costs and attorney fees.
II. The District Court Did Not Abuse its Discretion in Refusing to Admit
Father’s Summary Exhibit
{11} At the hearing on the motion for order to show cause, Father attempted to admit
a summary exhibit detailing the travel expenses he alleged he incurred while visiting
Daughter. The district court denied admission because Father had not provided Mother
with the summary evidence in advance of the hearing. Father contends the district court
erred in its ruling.
{12} “The admission or exclusion of evidence is reviewed for an abuse of discretion.”
Ruiz v. Vigil-Giron, 2008-NMSC-063, ¶ 7, 145 N.M 280, 196 P.3d 1286. “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case. We cannot say the trial court abused its discretion by its
ruling unless we can characterize it as clearly untenable or not justified by reason.” Id.(internal quotation marks and citation omitted).
{13} Summary exhibits are governed by Rule 11-1006 NMRA, which states:
The proponent may use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court. The proponent must make the originals or
duplicates available for examination or copying, or both, by other parties at
a reasonable time and place. The court may order the proponent to
produce them in court.
(Emphasis added.) At the hearing, the district court explained that “[t]he whole point of
[the rule] is to allow counsel on the other side an opportunity to be adequately prepared
to cross-examine the witness.” Father’s counsel proposed a recess for Mother’s counsel
to review the evidence but the district court countered that it would be too difficult for
opposing counsel “to try to do that kind of assessment, evaluation, and investigation in
the context of a two-hour hearing on a Monday afternoon.” Mother’s counsel also noted
that Father had ample time to produce the evidence prior to the hearing, but had failed
to do so. Additionally, Mother’s counsel objected to a continuance because Daughter
was preparing to enter the military and might not have been available for a future
hearing.
{14} The district court took careful measure of the parties’ actions and statements
before denying admission of the summary exhibit. The district court noted that the
decision was within its discretion and that it had to “look at what’s going on and weigh
and balance the due process rights of each party.” Furthermore, the district court
ultimately allowed Father to testify at length about the alleged travel expenses he
sought to recover. As such, we fail to see how exclusion of his summary exhibit resulted
in an abuse of discretion, much less in prejudice to Father. See Kilgore v. Fuji Heavy
Indus. Ltd., 2009-NMCA-078, ¶ 39, 146 N.M 698, 213 P.3d 1127 (“If evidence is
erroneously admitted or excluded, the complaining party must show prejudice to obtain
a reversal.”).
CONCLUSION
{15} For the forgoing reasons, we affirm.
{16} IT IS SO ORDERED.
MEGAN P. DUFFY, Judge
WE CONCUR:
J. MILES HANISEE, Judge
SHAMMARA H. HENDERSON, Judge