Jaramillo v. Jaramillo ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40341
SHANNON K. JARAMILLO n/k/a
SHANNON K. POGZEBA,
Petitioner-Appellee,
v.
MARIO JARAMILLO,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Gerard J. Lavelle, District Court Judge
Matteucci Family Law, P.C.
Robert P. Matteucci
Albuquerque, NM
for Appellee
Mario Jarmillo
Albuquerque, NM
Pro Se Appellant
MEMORANDUM OPINION
IVES, Judge.
{1} Respondent, a self-represented litigant, appeals the district court’s order granting
Petitioner’s request to relocate Child to Nebraska. We issued a calendar notice
proposing to affirm. Respondent has filed a memorandum in opposition, which we have
duly considered. Unpersuaded, we affirm.
{2} In his memorandum in opposition, Respondent acknowledges that he failed to
preserve his argument regarding Rule 1-054.1 NMRA because he was unaware of the
rule’s existence, but argues that his “lack of awareness constitutes a legitimate reason
for not raising the issue.” [DS 2] Respondent also argues that the Judge hindered his
ability to preserve the issue by silencing and interrupting him. [Id.] Having
acknowledged that he was unaware of the existence of the rule prior to this appeal,
Respondent’s assertion that the district court judge’s actions prevented him from asking
that the rule be applied is unpersuasive. Moreover, Respondent’s claim that his
argument was not raised in district court due to his own lack of knowledge does not
constitute one of the narrow reasons that may justify our review of unpreserved issues,
and Respondent does not claim that any preservation exceptions apply. See Rule 12-
321(B)(2) NMRA (stating that we may review a claim that has not been preserved when
the matter involves the general public interest, plain error, fundamental error, or the
fundamental rights of a party); see also Muse v. Muse, 2009-NMCA-003, ¶ 57, 145 N.M.
451, 200 P.3d 104 (“[A] fundamental right is that which the Constitution explicitly or
implicitly guarantees.” (internal quotation marks and citation omitted)); N.M. State Bd. of
Psych. Exam’rs v. Land, 2003-NMCA-034, ¶ 25, 133 N.M. 362, 62 P.3d 1244 (stating
that “the fundamental error doctrine does not apply to civil cases except in the most
extraordinary circumstances,” and “is generally limited to those instances in which the
innocence of the accused remains unassailable, and to allow the conviction to stand
would shock the conscience of the court”); Azar v. Prudential Ins. Co. of Am., 2003-
NMCA-062, ¶ 28, 133 N.M. 669, 68 P.3d 909 (stating that a matter of substantial public
interest is one that “is likely to settle a question of law affecting the public at large or a
great number of cases and litigants in the near future”). As such, we conclude that the
arguments asserted by Respondent in his memorandum in opposition do not impact the
analysis set forth in our proposed disposition of this issue.
{3} Respondent also continues to challenge the district court judge’s denial of
Respondent’s motion to recuse. [MIO 2-3] “We review the denial of a motion to recuse
for an abuse of discretion.” N.M. Constr. Indus. Div. & Manufactured Hous. Div. v.
Cohen, 2019-NMCA-071, ¶ 25, 453 P.3d 456 (internal quotation marks and citation
omitted). In determining whether an objective observer would conclude that a judge’s
impartiality was questionable, “an appellate court should look to see how the judge
arrived at the decision not to recuse and then should review the judge’s actions for
bias.” State v. Riordan, 2009-NMSC-022, ¶ 11, 146 N.M. 281, 209 P.3d 773. There
must be a “reasonable factual basis for doubting the judge’s impartiality”; a claim of bias
“cannot be based on mere speculation.” N.M. Constr. Indus. Div. and Manufactured
Hous. Div., 2019-NMCA-071, ¶ 26 (internal quotation marks and citation omitted).
{4} Respondent argues that his motion seeking recusal was based on “factual
circumstances that, if true, could reasonably cast doubt on the judge’s impartiality.”
[MIO 3] These circumstances include interactions that the judge had with Petitioner’s
counsel (Counsel) more than a decade earlier; the judge’s use of Counsel in his
professional capacity to act as a settlement facilitator, personal representative, and
special master in cases unrelated to this one; and both the judge and Counsel having
ties to Nebraska. [MIO 3] In denying Respondent’s motion, the judge took note of the
fact that Respondent had not previously made any assertions of bias when the judge
ruled against Petitioner but now asserted bias based on the denial of Respondent’s
motions. [DS 3] Given that it is well-settled that “adverse rulings do not constitute bias,”
Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regul. Comm’n, 2010-
NMSC-013, ¶ 42, 148 N.M. 21, 229 P.3d 494, we conclude that there was no
reasonable factual basis to determine the judge could not fairly and objectively hear the
case. See N.M. Constr. Indus. Div. & Manufactured Hous. Div., 2019-NMCA-071, ¶ 26
(“Recusal is only required when a judge has become so embroiled in the controversy
that he or she cannot fairly and objectively hear the case.” (alterations, internal
quotation marks, and citation omitted)). Respondent’s argument that the district court
judge abused his discretion in declining to recuse himself is therefore unpersuasive.
{5} Respondent also continues to argue that the district court erred by failing to issue
findings of fact and conclusions of law along with its order granting Petitioner’s request
to relocate Child. [MIO 3] As stated in our notice of proposed disposition, the district
court’s failure to issue written findings of fact and conclusions of law is not error in light
of the fact that it explained its rational orally during the hearing on the merits. See
Burris-Awalt v. Knowles, 2010-NMCA-083, ¶ 10, 148 N.M. 616, 241 P.3d 617. This
Court also noted in the proposed disposition that Respondent had not identified any
reason to believe the district court failed to consider relevant facts in making its decision
and that Respondent failed to identify the facts he felt were necessary to the district
court’s decision but were omitted from the district court’s reasoning or that should have
been identified in a written finding. [CN 6] Respondent’s memorandum in opposition
fails to clarify the issue, asserting only that “a comprehensive written explanation would
provide a more detailed and complete understanding of the [district] court’s reasoning
as well as conducting a best interest analysis.” [MIO 3-4]
{6} “A party responding to a summary calendar notice must come forward and
specifically point out errors of law and fact,” and the repetition of earlier arguments does
not fulfill this requirement. State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421,
759 P.2d 1003, superseded by statute on other grounds as stated in State v. Harris,
2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore conclude that Respondent has failed
to assert reversible error as to this issue.
{7} Throughout his memorandum in opposition, Respondent continues to argue that
the district court erred in approving Petitioner’s request to relocate with Child. [MIO 4]
Our notice proposed to hold that based on the evidence the parties chose to submit, the
district court properly concluded that it was in Child’s best interest to move to Nebraska
with Petitioner, and Respondent failed to demonstrate an abuse of discretion. [CN 9]
See Jaramillo v. Jaramillo, 1991-NMSC-101, ¶ 27, 113 N.M. 57, 823 P.2d 299 (stating
that the district court’s role is to “consider as much information as the parties choose to
submit” in deciding whether relocation will serve a child’s best interests). In response,
Respondent makes five assertions that he believes demonstrate reversible error. First,
Respondent asserts that relocation is improper because Petitioner filed a motion
seeking relocation but did not file a motion to modify custody. [MIO 4] Under Jaramillo,
either party in a relocation dispute can initiate a proceeding to alter an existing custody
arrangement on the ground that a “substantial and material change in circumstances” is
about to occur: “In almost every case in which the change in circumstances is
occasioned by one parent’s proposed relocation, the proposed move will establish the
substantiality and materiality of the change.” Id. Respondent has not identified any
authority to suggest a motion to modify must precede a motion seeking relocation, and
our case law does not support imposing such a requirement. See Hopkins v. Wollaber,
2019-NMCA-024, ¶ 21, 458 P.3d 583 (recognizing Jaramillo as governing cases in
which joint custody in both parents is continued, but one parent seeks modification of
the joint custody arrangement in order to accommodate a long-distance relocation).
{8} Second, Respondent argues the district court erred in failing to “adequately
explore alternatives or consider whether there were less restrictive means to address
any concerns related to [C]hild’s well-being.” [MIO 4] Third, Respondent similarly argues
that it was improper for the district court to order supervised visitation in Nebraska
rather than in New Mexico. [MIO 5] Respondent does not, however, cite to any authority
to support either assertion. As we noted in the proposed disposition, our case law
recognizes that the failure to cite legal authority to support an argument constitutes
grounds for this Court refusing to review an issue. See ITT Educ. Servs., Inc. v. N.M.
Tax’n & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (refusing
to consider a proposition that was unsupported by citation to authority); In re Adoption of
Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (explaining that where
arguments are not supported by cited authority, we presume counsel was unable to find
supporting authority, will not research authority for counsel, and will not review issues
unsupported by authority).
{9} Fourth, Respondent argues that the district court did not consider Child’s best
interests before making a decision regarding relocation. [MIO 4] More specifically,
Respondent asserts that the district court improperly allowed for relocation based on
Respondent’s refusal to submit to a mental health evaluation, and he argues that it was
inappropriate for the district court to require such an evaluation. [MIO 4-5] As noted in
the proposed disposition, the district court received testimony from both parties, as well
as other witnesses [CN 8-9], and made credibility determinations based on the evidence
before it, ultimately concluding that relocation was in Child’s best interests [DS 6-7, 11-
12]. We therefore conclude that Respondent’s assertion that the district court “did not
consider the evidence, arguments, and [C]hild’s best interests” is not supported by the
facts in this case.
{10} Insofar as Respondent asserts it was improper for the district court to seek a
psychological evaluation of Respondent or to consider Respondent’s refusal to submit
to such an evaluation, his argument is unpersuasive in light of the fact that the “mental
and physical health of all individuals involved” is a factor that the district court is
statutorily required to consider in determining the best interests of Child. See NMSA
1978, § 40-4-9(A)(5) (1977). Additionally, Respondent has neither identified any
relevant factors that he believes the district court failed to consider, nor identified
additional facts or evidence he believes the district court omitted from its best interests
analysis. As a result, Respondent has failed to demonstrate the district court abused its
discretion in concluding relocation was in Child’s best interests. See Hopkins, 2019-
NMCA-024, ¶ 9 (reviewing the district court’s child custody determination for an abuse
of discretion).
{11} Fifth and finally, Respondent continues to assert the district court’s decision
violates his constitutionally protected parental rights. [MIO 9; DS 32] “A parent’s
fundamental right to raise his or her children, however, is secondary to the best
interests and welfare of the child.” Lucero v. Hart, 1995-NMCA-121, ¶ 17, 120 N.M. 794,
907 P.2d 198. In light of our analysis of the district court’s best interests determination
and the broad nature of Respondent’s assertion, Respondent has failed to demonstrate
reversible error as to this issue. See, e.g., State v. Ortiz, 2009-NMCA-092, ¶ 32, 146
N.M. 873, 215 P.3d 811 (refusing to address conclusory arguments, reasoning that “[a]
party cannot throw out legal theories without connecting them to any elements and any
factual support for the elements” (internal quotation marks and citation omitted)). To the
extent Respondent also seeks to advance this argument on Child’s behalf, he may not
do so. See In re Schmidt, 1997-NMSC-008, ¶ 13, 122 N.M. 770, 931 P.2d 1386 (noting
that litigants “may not appear through unlicensed laymen[—]not even their parents”).
{12} Respondent has not otherwise asserted any fact, law, or argument in his
memorandum in opposition that persuades us that our notice of proposed disposition
was erroneous. See Mondragon, 1988-NMCA-027, ¶ 10; see also Hennessy v. Duryea,
1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held
that, in summary calendar cases, the burden is on the party opposing the proposed
disposition to clearly point out errors in fact or law.”). Accordingly, for the reasons stated
in our notice of proposed disposition and herein, we affirm the district court’s order
granting Petitioner’s request to relocate Child to Nebraska.
{13} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
J. MILES HANISEE, Judge
SHAMMARA H. HENDERSON, Judge