State ex rel. Children, Youth & Families Dep't v. Mercer-Smith

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______________
3 Filing Date: June 18, 2015
4 NOS. 31,941 & 28,294 (Consolidated)
5 STATE OF NEW MEXICO ex rel.
6 CHILDREN, YOUTH & FAMILIES
7 DEPARTMENT,
8 Petitioner-Appellant,
9 Concerning JANET MERCER-SMITH and
10 JAMES MERCER-SMITH,
11 Respondents-Appellees.
12 APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY
13 Barbara J. Vigil, District Judge
14 Walz & Associates, P.C.
15 Jerry A. Walz
16 Albuquerque, NM
17 Narvaez Law Firm, P.A.
18 Henry F. Narvaez
19 Bryan C. Garcia
20 Albuquerque, NM
21 Rodey, Dickason, Sloan, Akin & Robb, P.A.
22 Denise M. Chanez
23 Albuquerque, NM
24 for Appellant
1 Comeau, Maldegen, Templeman & Indall, LLP
2 Larry D. Maldegen
3 William P. Templeman
4 Stephen J. Lauer
5 Santa Fe, NM
6 Dan Cron Law Firm, P.C.
7 Dan Cron
8 Santa Fe, NM
9 for Appellees
1 OPINION
2 BUSTAMANTE, Judge.
3 {1} In this case we assess what may be the outer edges of a court’s exercise of its
4 contempt power. At the Respondent parents’ (James and Janet Mercer-Smith) urging
5 the district court found the Children, Youth and Families Department (CYFD) in
6 contempt of court for contravening the district court’s order concerning foster
7 placement of two of their children in its custody. The Mercer-Smiths then sought, and
8 the district court granted, damages for loss of enjoyment of life because the
9 possibility for reconciliation with their children had been reduced as a result of
10 CYFD’s contemptuous conduct. It awarded the Mercer-Smiths over $1.6 million in
11 damages for loss of enjoyment of life and over $2 million in attorney fees and costs
12 for prosecution of the contempt action. We affirm.
13 I. BACKGROUND
14 {2} The case began in 2001 and evolved to encompass four distinct phases—abuse
15 and neglect, foster placement, contempt, and contempt damages—that we summarize
16 in turn. More details are provided as necessary to our discussion of CYFD’s
17 arguments on appeal.
1 A. Abuse and Neglect Petition
2 {3} In February 2001 the Mercer-Smiths’ three daughters, Julia, Rachel, and
3 Allison, were removed from their home based on allegations by Julia and Rachel that
4 they had been abused by their parents. CYFD took custody of the three girls and filed
5 an abuse/neglect petition against the Mercer-Smiths. In August 2001 the Mercer-
6 Smiths and CYFD entered into a stipulated disposition whereby the Mercer-Smiths
7 stipulated that “James Mercer-Smith will enter a plea of no contest to the following
8 allegations: . . . James Mercer-Smith touched his children Julia and Rachel in a way
9 that made them feel uncomfortable and which they reasonably perceived as sexual.”
10 They also stipulated that “Janet Mercer-Smith will enter a plea of no contest to the
11 following allegations: . . . Janet Mercer-Smith knew or should have known that her
12 husband . . . touched their children Julia and Rachel in a way that made them feel
13 uncomfortable and which they reasonably perceived as sexual.” In return, CYFD
14 agreed to “recommend to the District Attorney that the treatment plan established
15 through the Children’s Court case is the most effective way to address the problems
16 that exist with this family rather than through a criminal prosecution.”
17 {4} The Mercer-Smiths’ pleas were accepted by the district court, which ordered
18 that custody of the three girls would remain with CYFD and ordered compliance with
19 a treatment plan. The goal of the treatment plan was reunification of the girls with
2
1 their parents. The abuse and neglect proceedings were effectively concluded by entry
2 of the Mercer-Smiths’ pleas; neither termination of parental rights nor criminal
3 proceedings were ever initiated against the Mercer-Smiths. Several months later,
4 Allison was returned to the Mercer-Smiths’ custody.
5 {5} In August 2002 the district court adopted a planned permanent living
6 arrangement for Julia and Rachel. After this shift, reunification of Julia and Rachel
7 with their parents was no longer a goal. While in CYFD’s custody, Julia and Rachel
8 lived for approximately eighteen and twenty-eight months, respectively, at Casa
9 Mesita, a treatment group home.
10 B. Placement Hearing and Order
11 {6} In June 2003 CYFD proposed to remove Julia and Rachel from the group home
12 and place Julia with the Schmierer family and Rachel with the Farley family. The
13 Mercer-Smiths objected to this plan on the ground that Jennifer Schmierer and Gay
14 Farley, both of whom had been employees at Casa Mesita, had a conflict of interest
15 (or “dual relationship”) based on their therapeutic relationships with Julia and Rachel
16 at the group home. The Mercer-Smiths were also concerned that living with the
17 Schmierers and Farleys would reduce the possibility of reconciliation with their
18 daughters.
3
1 {7} After several days of hearings, the district court found that the proposed
2 placements would constitute “dual relationship[s]” and “potentially exploitive
3 relationship[s].” It concluded that “[CYFD’s] proposed placement of [the girls] into
4 the home of Jennifer and Eric Schmierer [or Dwayne and Gay Farley] constitutes an
5 abuse of discretion.” The district court’s order to this effect (the Placement Order)
6 was entered on November 3, 2003.
7 {8} Following the placement hearing, Rachel and Julia lived for approximately
8 three-and-one-half months with Martin and Jeanne Ritter. After that period, CYFD
9 changed the girls’ living arrangement to “[s]emi [i]ndependent [l]iving.” While living
10 under this arrangement, the girls rented a room from Melissa Brown, Gay and
11 Dwayne Farley’s daughter, who lived a few houses from the Farleys.
12 C. Contempt Proceedings
13 {9} Approximately eight months later, the Mercer-Smiths moved to hold CYFD in
14 contempt for violating the Placement Order.1 The parties engaged in discovery and
15 a contempt hearing began in November 2006. The Mercer-Smiths did not present any
1
16 In addition to CYFD, the motion named CYFD employees Rebecca Liggett,
17 Lou Hoeppner, and Carmela Alcon, as well as Jennifer Schmierer, Gay Farley,
18 Guardian ad litem Jane Wells Starke, and Julia and Rachel’s counsel, Rachel Kolman.
19 The allegations against the CYFD employees in their individual capacity, Jennifer
20 Schmierer, Gay Farley, Jane Wells Starke, and Rachel Kolman were later dismissed.
4
1 witnesses, relying instead on their exhibits and CYFD’s responses to requests for
2 admissions, as well as requested admissions that were deemed admitted by the district
3 court. CYFD called two witnesses, Rebecca Liggett, CYFD counsel for the Mercer-
4 Smiths’ case, and Carmela Alcon, the county office manager for Protective Services,
5 a CYFD division. The district court entered extensive findings of fact and concluded
6 that “CYFD, as an agency, engaged in activity and took direct actions that were in
7 contempt of the November 3, 2003, [district c]ourt’s [f]indings of [f]act and
8 [c]onclusions of [l]aw and [d]ecision on [p]lacement.” It therefore held CYFD in
9 contempt of court. The district court’s findings are discussed in more detail below.
10 D. Contempt Damages
11 {10} A five-day bench trial on damages began in May 2011. The district court also
12 heard additional evidence and argument on October 19, 2011. Sixteen witnesses
13 testified. The Mercer-Smiths argued that they had suffered emotional distress and loss
14 of enjoyment of life and requested compensatory damages for those losses as well as
15 attorney fees and litigation costs incurred in pursuing enforcement of the Placement
16 Order. CYFD made a number of motions to preclude or admit certain evidence and
17 to limit damages, the denials of which are discussed in detail below. At the
18 conclusion of the trial, the district court found that “James Mercer-Smith suffered
19 injuries and other harms caused by CYFD’s contemptuous conduct” and that such
5
1 injuries included past and future emotional distress, loss of enjoyment of life, and
2 “psychological expenses,” and awarded compensatory damages of $616,000. It found
3 that Janet Mercer-Smith suffered the same injuries and awarded compensatory
4 damages of $1 million. Finally, the district court awarded the Mercer-Smiths
5 compensatory attorney fees and litigation costs of $2,034,922, plus applicable gross
6 receipts tax. CYFD appealed.
7 E. General Law of Contempt
8 {11} In order to provide context for the analysis that follows, it is useful to provide
9 an overview of the law of contempt, including generally recognized available
10 remedies. “The district court has inherent power to sanction for contempt.” Purpura
11 v. Purpura, 1993-NMCA-001, ¶ 6, 115 N.M. 80, 847 P.2d 314; see N.M. Const. art.
12 VI, § 13. The contempt power is necessary to allow courts to “to regulate their docket,
13 promote judicial efficiency, and deter frivolous filings,” and “[i]t has long been
14 recognized that a court must be able to command the obedience of litigants and their
15 attorneys if it is to perform its judicial functions.” State ex rel. N. M. State Highway
16 & Transp. Dep’t v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896 P.2d 1148
17 (internal quotation marks and citation omitted). Although this power is a broad one,
18 our Supreme Court has cautioned that “a court should invoke its inherent powers
19 sparingly and with circumspection.” Id. ¶ 25.
6
1 {12} “Contempts procedurally are either civil or criminal in nature [but] the line of
2 demarcation between the two is somewhat hazy.” State ex rel. Bliss v. Greenwood,
3 1957-NMSC-071, ¶ 6, 63 N.M. 156, 315 P.2d 223. Generally, the type of contempt
4 at issue depends on the purpose behind the contempt determination. “Where the
5 primary purpose is to preserve the court’s authority and to punish for disobedience
6 of its orders, the contempt is criminal. Where the primary purpose is to provide a
7 remedy for an injured suitor and to coerce compliance with an order, the contempt is
8 civil.” Id.; see Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441 (1911) (“It
9 is not the fact of punishment, but rather its character and purpose, that often serve to
10 distinguish between the two classes of cases.”). Here, the district court awarded
11 damages to compensate the Mercer-Smiths for damage done to their chances of
12 reconciliation with their daughters. These compensatory damages fall within the
13 scope of civil contempt.
14 {13} Compensatory damages for civil contempt are “somewhat analogous to a tort
15 judgment for damages caused by wrongful conduct.” Parker v. United States, 153
16 F.2d 66, 70 (1st Cir. 1946), cited in El Paso Prod. Co. v. PWG P’ship, 1993-NMSC-
17 075, ¶ 30, 116 N.M. 583, 866 P.2d 311. As such, they serve “to make reparation to
18 the injured party and restore the parties to the position they would have held had the
19 [court’s order] been obeyed.” Vuitton et Fils S. A. v. Carousel Handbags, 592 F.2d
7
 1 126, 130 (2d Cir. 1979); Hutto v. Finney, 437 U.S. 678, 691 (1978) (“Civil contempt
2 may also be punished by a remedial fine, which compensates the party who won the
3 injunction for the effects of his opponent’s noncompliance.”). Damages may include
4 typical tort damages, including lost wages, Meade v. Levett, 671 N.E.2d 1172, 1181
5 (Ind. Ct. App. 1996); lost profits, Eldim, Inc. v. Mullen, 710 N.E.2d 1054, 1058
6 (Mass. App. Ct. 1999); emotional distress, In re Reno, 299 B.R. 823, 829 (Bankr.
7 N.D. Tex. 2003); Sebastian v. Texas Dep’t of Corr., 558 F. Supp. 507, 510 (S.D. Tex.
8 1983); and attorney fees and litigation costs. Baca, 1995-NMSC-033, ¶ 25 (holding
9 that a district court may award attorney fees against the state); Spear v. McDermott,
10 1996-NMCA-048, ¶ 43, 121 N.M. 609, 916 P.2d 228. But see McBride v. Coleman,
11 955 F.2d 571, 577 (8th Cir. 1992) (“[C]ivil contempt [is not] an appropriate vehicle
12 for awarding damages for emotional distress[.]”). The district court does not have
13 discretion to deny compensatory damages, if established with reasonable certainty.
14 El Paso Prod. Co., 1993-NMSC-075, ¶ 31 (“[O]nce a plaintiff satisfies his burden of
15 proving violation of a court order, proximate cause, and damages, he or she is entitled
16 to judgment for recovery of those damages.”). In apparent recognition of the weight
17 of this authority, CYFD did not argue below and does not argue here that
18 compensatory damages are not available as a remedy for contumacious conduct.
8
1 {14} “The elements necessary for a finding of civil contempt are: (1) knowledge of
2 the court’s order, and (2) an ability to comply.” In re Hooker, 1980-NMSC-109, ¶ 4,
3 94 N.M. 798, 617 P.2d 1313. Thus, the party need not have intent to disobey the
4 district court’s order. Seven Rivers Farm, Inc. v. Reynolds, 1973-NMSC-039, ¶ 16,
5 84 N.M. 789, 508 P.2d 1276 (“[I]ntent is not an essential element of contempt.”).
6 Because knowledge of the district court’s order is a prerequisite to contempt, the
7 district court’s order must not be ambiguous. See Greer v. Johnson, 1971-NMSC-127,
8 ¶ 10, 83 N.M. 334, 491 P.2d 1145 (upholding a finding of contempt where the court’s
9 order was not ambiguous); State ex rel. Patton v. Marron, 1917-NMSC-039, ¶ 50, 22
10 N.M. 632, 167 P. 9 (stating that “[t]he order or decree alleged to have been violated
11 must be definite and certain, and a respondent will not be held in contempt for alleged
12 violation of an order wanting in these essential respects” and that “[t]he charge of
13 contempt cannot be established for failure to comply with uncertain or indefinite
14 orders, judgments, or mandates.” (internal quotation marks and citation omitted)).
15 That being said, the parties subject to an order have an obligation to seek clarification
16 from the district court if they do not understand the court’s order. When parties
17 instead “undert[ake] to make their own determination of what [a] decree mean[s,
18 t]hey act[] at their peril.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 192
19 (1949). Further, “[i]t does not lie in [the contemnors’] mouths to say that they have
9
1 an immunity from civil contempt because the plan or scheme which they adopted was
2 not specifically enjoined. Such a rule would give tremendous impetus to [a] program
3 of experimentation with disobedience of the law.” Id.
4 {15} “When reviewing a charge of civil contempt, the action of the trial court will
5 not be disturbed absent an abuse of discretion.” State ex rel. Udall v. Wimberly, 1994-
6 NMCA-121, ¶ 15, 118 N.M. 627, 884 P.2d 518. Thus, we will reverse a contempt
7 judgment where “the ruling is clearly against the logic and effect of the facts and
8 circumstances of the case[, or] based on a misunderstanding of the law.” Chavez v.
9 Lovelace Sandia Health Sys., Inc., 2008-NMCA-104, ¶ 25, 144 N.M. 578, 189 P.3d
10 711 (internal quotation marks and citation omitted). “Even when we review for an
11 abuse of discretion, our review of the application of the law to the facts is conducted
12 de novo.” Id. (alteration, internal quotation marks, and citation omitted). When
13 reviewing whether the district court’s findings are supported by the evidence, we
14 “view[] the evidence in the light most favorable to the trial court’s decision, resolve[]
15 all conflicts and indulge[] all permissible inferences to uphold the court’s decision,
16 and disregard[] all evidence and inferences to the contrary.” State v. Gonzales, 2001-
17 NMCA-025, ¶ 40, 130 N.M. 341, 24 P.3d 776, overruled on other grounds by State
18 v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. In doing so, we are
19 mindful that, as in all civil cases, “[t]he burden of proof in [civil contempt
10
1 proceedings] . . . is . . . the preponderance of the evidence.” Greer, 1971-NMSC-127,
2 ¶ 9. In addition, “the credibility of the witnesses and the weight to be given the
3 evidence is for the trier of the facts.” Id.
4 II. DISCUSSION AND ANALYSIS
5 {16} CYFD makes eleven arguments on appeal that we have grouped into three
6 major categories. First, it argues that the district court did not have jurisdiction to
7 continue contempt proceedings after Julia and Rachel had been dismissed from the
8 abuse and neglect proceedings because they had turned eighteen. Second, it argues
9 that its conduct was not contemptuous. Third, it argues that, even if the district court
10 correctly held it in contempt, the district court erred in awarding damages to the
11 Mercer-Smiths. The third category of arguments includes CYFD’s assertions that (1)
12 CYFD’s conduct did not cause any damage to the Mercer-Smiths because, under a
13 law of the case theory, CYFD had no duty to support reconciliation of the family, (2)
14 the district court’s findings of fact on damages are not supported by the evidence, (3)
15 the “unclean hands” doctrine prohibits compensatory damages for the Mercer-Smiths,
16 (4) certain evidence was improperly admitted, (5) the New Mexico Tort Claims Act
17 either precludes or limits the amount of damages that can be awarded, (6) the amount
18 of attorney fees awarded was incorrect, and (7) the district court judge improperly
19 refused to recuse herself from the case. We address these arguments in turn.
11
1 A. Jurisdiction
2 {17} CYFD first argues that the district court should have abated the contempt
3 proceedings when Julia and Rachel turned eighteen and CYFD’s legal custody of
4 them was terminated by operation of law. See NMSA 1978, § 32A-4-24(F) (2009)
5 (“When a child reaches eighteen years of age, all neglect and abuse orders affecting
6 the child then in force automatically terminate except as provided in [NMSA 1978,]
7 Section 32A-4-23.1 [(2009)] . . . and Subsection [C] of [NMSA 1978,] Section 32A-
8 4-25.3 [(2009)]).”
9 {18} We disagree that the district court lost jurisdiction to continue contempt
10 proceedings when the abuse and neglect proceedings were terminated. In Gonzales
11 v. Surgidev Corp., the New Mexico Supreme Court considered whether the district
12 court had jurisdiction to enter sanctions for discovery abuses after a final judgment
13 had been entered in the underlying matter. 1995-NMSC-047, ¶ 9, 120 N.M. 151, 899
14 P.2d 594. It concluded that it did, stating that “[a] court retains jurisdiction under its
15 inherent authority to impose sanctions at any time, subject only to constitutional
16 limitations or equitable defenses.” Id. Gonzales is dispositive of this issue.
17 {19} CYFD also argues that continuing with the contempt proceedings was contrary
18 to law because those proceedings did not further the purposes of the Children’s Code.
19 See NMSA 1978, §§ 32A-1-1 to -24-5 (1993, as amended through 2013). CYFD
12
1 maintains that the imposition of the district court’s contempt powers under the
2 Children’s Code necessarily requires that the court conduct children’s court
3 proceedings, and any contempt proceedings thereunder, “in a manner that will further
4 the purposes and policies of [the Children’s Code].” State v. Julia S., 1986-NMCA-
5 039, ¶ 19, 104 N.M. 222, 719 P.2d 449. For support, CYFD directs us to Julia S., in
6 which this Court considered whether the district court could order incarceration of a
7 child as a sanction for a first probation violation under its contempt power. Id. ¶ 18.
8 Stating that “the court is expected to conduct children’s court proceedings in a
9 manner that will further the purposes and policies of [the Children’s Code]” and that
10 “[t]his expectation extends to the imposition of the court’s contempt powers[,]” the
11 Court held that incarceration of the child for the first probation violation was contrary
12 to the Children’s Code because the Children’s Code provided that the child may be
13 incarcerated only after three probation violations. Id. ¶¶ 19, 21-22. The Court also
14 held that the district court’s inherent contempt power was not unreasonably hindered
15 by the statutory limitation in the Children’s Code. Id. ¶ 27.
16 {20} Julia S. is inapposite for two reasons. First, the Julia S. court expressly limited
17 its analysis and holding to “probation violations of [children in need of supervision]”
18 and stated that it “express[ed] no opinion . . . as to the proper limits of the court’s
19 contempt power for an indirect contempt other than a probation violation.” Id. ¶ 28.
13
1 Second, there the contempt sanction was reversed because it was in direct
2 contradiction to a provision in the Children’s Code. Id. ¶ 22. Here, there is no express
3 provision in the Children’s Code prohibiting the district court’s award of
4 compensatory contempt damages to the Mercer-Smiths.
5 {21} As to CYFD’s more general argument that the finding of contempt and award
6 of damages exceeded the district court’s authority because they did not further “the
7 care, protection[,] and wholesome mental and physical development” of Julia and
8 Rachel or the preservation of the Mercer-Smith family, this argument misplaces the
9 focus of the inquiry. See § 32A-1-3(A). CYFD would have us focus on whether the
10 contempt order and damages award themselves further the purposes of the Code, but
11 the more appropriate inquiry is whether the district court’s Placement Order did so.
12 So long as the Placement Order was consistent with the Children’s Code, a contempt
13 order enforcing that order is also consistent with it. See § 32A-4-13(B) (stating that
14 the Children’s Court has contempt power). We conclude that the district court had
15 jurisdiction to enter the contempt order and award compensatory damages.
16 B. Contumacious Conduct
17 {22} CYFD next argues that the district court erred in finding its conduct
18 contumacious. It makes two contentions. The first hinges on the language of the
19 Placement Order. CYFD contends that the Placement Order was not clear and
14
1 unambiguous because the language of the order prohibited only “placement” of the
2 girls with the Schmierers and Farleys as licensed foster parents with a contract with
3 CYFD to care for the girls. The second argument is that, even if the Placement Order
4 was unambiguous, the district court’s findings as to contempt are not supported by
5 the evidence. We begin with the first argument.
6 {23} CYFD maintains that the Placement Order prohibited only “placement” of Julia
7 and Rachel in the Schmierer and Farley homes and CYFD designation of those
8 families as foster parents to Julia and Rachel. CYFD asserts that “placement into
9 foster care is derived from a signed contract between CYFD and the prospective
10 foster family and the payment of money by CYFD to that foster family.” Thus, it
11 argues that it did not disobey the Placement Order because there was never a contract
12 with the Schmierers and Farleys and no foster parent payments were made to them.
13 Further, it contends, it was not clear and unambiguous that the district court intended
14 to prohibit contact between the girls and the Schmierer and Farley families.
15 {24} This argument elevates form over substance. Even if we accept CYFD’s
16 argument that the Placement Order did not prohibit contact between the girls and the
17 two families, CYFD’s position ignores the district court’s findings to the effect that
18 the amount of contact was tantamount to placement in those homes and thus violated
19 the Placement Order.
15
1 {25} It is clear from the language in the Placement Order and from the district
2 court’s oral ruling that it was concerned about the nature of the relationship between
3 the girls and people who had been their counselors. For instance, in the Placement
4 Order the district court found that Julia was a former client of Jennifer Schmierer and
5 that “Gay Farley . . . rendered counseling or therapy to Rachel . . . within the previous
6 [sixty] months of the proposed placement.” Based on these findings, it also found that
7 the placement of Julia and Rachel with their former counselors created “dual
8 relationships” that are forbidden by the code of ethics for counselors and therapists.
9 16.27.18.18(D) NMAC (06/15/2001). Section 16.27.18.16(B) NMAC (07/01/2004)
10 of the code of ethics includes within “dual relationships” those involving a “financial
11 or other potentially exploitive relationship with the client.”2 At the conclusion of the
12 placement hearing, the district court stated that it was troubled by the proposed
2
13 We note that the concept of a “dual relationship” appears in other parts of the
14 Administrative Code relating to psychologists and social workers. For instance, with
15 regard to social workers, 16.63.16.8(G)(3) NMAC (09/01/2014) prohibits social
16 workers from engaging in dual relationships, which “occur when social workers relate
17 to clients in more than one relationship, whether professional, social, or business.
18 Dual or multiple relationships can occur simultaneously or consecutively.” Similarly,
19 “[a] psychologist shall not serve in varied capacities that confuse the role of the
20 psychologist. Such confusion is most likely when the psychologist changes from one
21 role to another and fails to make clear who is the client or patient. The psychologist
22 is responsible for taking appropriate precautions to avoid harmful dual
23 relationships[.]” 16.22.2.9(B)(4) NMAC (03/21/2009). 16.22.1.7(A)(16) NMAC
24 (04/11/2012) states that a dual relationship constitutes a conflict of interest for
25 psychologists.
16
1 placement plan “because of the risk of roles in these types of cases being confused.”
2 It also referenced the “prior relationship” between the girls and their counselors and
3 the counselors’ ethical obligations. Contrary to CYFD’s argument, we think it is clear
4 from these statements and the district court’s findings that it was concerned about
5 Jennifer Schmierer and Gay Farley assuming multiple roles in the girls’ lives, not
6 only about where the girls would live and who got paid by CYFD. Given, among
7 other things, email exchanges among CYFD case workers and CYFD counsel
8 discussed further below, we conclude that this intent and limitation inherent in the
9 district court’s order was understood by CYFD also.
10 {26} We next address CYFD’s contention that the district court’s findings are not
11 supported by the evidence. CYFD argues that the district court erred in deeming
12 admitted the Mercer-Smiths’ second and third requests for admission (RFAs) and
13 that, without these admissions, there is insufficient evidence to support the district
14 court’s findings related to contempt. It also specifically challenges fifty-five findings
15 of fact. Any unchallenged findings are binding on appeal. Rule 12-213(A)(4) NMRA
16 (“The argument shall set forth a specific attack on any finding, or such finding shall
17 be deemed conclusive.”). We begin with a discussion of how the second and third
18 requests for admission came to be deemed admitted and review this ruling for an
19 abuse of discretion.
17
1 {27} After the Mercer-Smiths served their second and third RFAs, CYFD moved for
2 a protective order and to strike the requests or for additional time to respond to the
3 requests. After a hearing, the motion for additional time was granted “pending further
4 hearing in this matter.” A hearing was held on June 13, 2006, but CYFD’s attorney
5 was not present. Following the Mercer-Smiths’ argument in response to CYFD’s
6 motion for a protective order, the district court ordered the requested admissions
7 deemed admitted. CYFD moved for reconsideration of this order.
8 {28} At the hearing on the motion for reconsideration, the district court heard from
9 both CYFD and the Mercer-Smiths on whether appropriate notice of the June 13,
10 2006, hearing was given to CYFD. The Mercer-Smiths presented billing records and
11 telephone call records documenting their efforts to schedule the June 13, 2006,
12 hearing. CYFD argued that no one at CYFD had received notice of the hearing and
13 that it had not been contacted by the Mercer-Smiths about the hearing. The district
14 court confirmed the procedures for mailing hearing notices by its staff. Ultimately,
15 the district court concluded that “the process and notification requirements [that] the
16 court is obligated to fulfill in this case have been met and that [CYFD] failed to
17 appear for the hearing.” It therefore denied the motion for reconsideration and stated
18 that “the court’s ruling will stand.” On appeal, the Mercer-Smiths maintain that notice
19 was provided to CYFD and CYFD avers that it was not. We defer to the district
18
1 court’s resolution of factual conflicts. Buckingham v. Ryan, 1998-NMCA-012, ¶ 10,
2 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the testimony, we defer to
3 the trier of fact.”). Given its determination that CYFD received notice but failed to
4 appear, we conclude that the district court did not err in deeming the second and third
5 requests for admission admitted. Morrison v. Wyrsch, 1979-NMSC-093, ¶¶ 13, 15,
6 93 N.M. 556, 603 P.2d 295 (stating that district courts have discretion to determine
7 whether counsel’s failure to respond to a request for admission is excusable and, if
8 not, to deem the requests admitted); see Rule 1-036 NMRA.
9 {29} After reviewing the admitted RFAs as well as other evidence, we conclude that
10 the district court’s findings are supported by substantial evidence. “Substantial
11 evidence is such relevant evidence that a reasonable mind would find adequate to
12 support a conclusion.” Miller v. Bank of Am., N.A., 2014-NMCA-053, ¶ 11, 326 P.3d
13 20 (internal quotation marks and citation omitted), cert. granted, 2014-NMCERT-
14 005, 326 P.3d 1112. Under the substantial evidence standard of review,
15 the question is not whether substantial evidence exists to support the
16 opposite result, but rather whether such evidence supports the result
17 reached. We will not reweigh the evidence nor substitute our judgment
18 for that of the factfinder. We consider the evidence in the light most
19 favorable to the prevailing party and disregard any inferences and
20 evidence to the contrary.
21 Id. (alterations, internal quotation marks, and citations omitted).
19
1 {30} In essence, the district court found that CYFD knew that the Placement Order
2 prohibited the two families from being caretakers of Julia and Rachel and that it
3 nevertheless arranged for Julia and Rachel to “spend[] the majority of their waking
4 hours either in school or with the [Schmierers and Farleys].” We examine whether the
5 evidence supports the district court’s findings as to (1) the contact between the girls
6 and the Schmierers and Farleys, (2) CYFD’s knowledge of the nature and extent of
7 the contact, (3) the extent of the Ritters’ role and CYFD’s knowledge of that role, and
8 (4) whether CYFD intentionally took direct action contrary to the Placement Order.3
9 {31} CYFD challenges findings of fact to the effect that Julia and Rachel (1) ate
10 morning and evening meals with the Schmierers and Farleys; (2) were transported to
11 and from school, extracurricular activities, and medical appointments by the
12 Schmierers and Farleys; (3) were taken on vacation by Gay Farley; and (4) were
13 provided with their own bathrooms in the Schmierer and Farley homes. They also
14 challenge findings that Rachel attended church with Gay Farley and received
15 clothing, presents, school supplies, and a cell phone from Gay Farley, that Rachel
16 kept clothing at the Farley home, and that Gay Farley paid for medical expenses for
17 Rachel, which payment was later reimbursed by CYFD, and for dance lessons.
3
18 Because we have concluded that the district court retained jurisdiction over
19 the contempt proceedings, we do not need to address CYFD’s challenge to the district
20 court’s finding that it had jurisdiction to continue them.
20
1 Similarly, they challenge findings that Jennifer Schmierer or the Schmierers paid for,
2 and were reimbursed for, Julia’s medical expenses and paid for her cell phone.
3 Finally, they challenged the district court’s findings that the Schmierers and Farleys
4 were “caretakers” for the girls. Many of these findings were in fact admitted by
5 CYFD in the first RFA. Others are supported by admissions from the RFAs that were
6 deemed admitted by the district court. Furthermore, the district court’s finding that
7 “[during the time the Ritters were the putative foster parents], the Schmierers and the
8 Farleys performed functions that a foster parent normally would” is unchallenged.
9 {32} CYFD also challenges findings related to whether CYFD knew of the type and
10 degree of contact between Julia and Rachel and the Schmierers and Farleys. These
11 include findings that “the only foster care services provided by the Ritters that [the
12 CYFD social worker knew of] was ‘a place to sleep[,]’ ” that “CYFD was aware that
13 Gay Farley had daily contact with the Mercer-Smith girls while the Ritters were
14 ‘foster parents[,]’ ” and that “CYFD knew of the nature of the contact Gay Farley had
15 with the Mercer-Smith girls while the Ritters were ‘foster parents.’ ” Other findings
16 were that one or both of the Schmierers and one or both of the Farleys had “attended
17 most CYFD staffing meetings involving [Julia and Rachel] since September 9, 2003”
18 and that “CYFD is aware that Gay Farley has taken the Mercer-Smith girls out of
19 state.” Again, some of these findings are supported by CYFD’s admissions on the
21
1 first RFA. Identical statements in the third RFA that were deemed admitted also
2 support these findings. Thus, they are supported by the evidence.
3 {33} The district court made findings to the effect that the “placement” of the girls
4 with the Ritters was superficial and that the Ritters were not caretakers of Julia and
5 Rachel to the same extent the Schmierers and Farleys were. For instance, the district
6 court found that CYFD policy requires that foster parents be licensed and that,
7 although the Ritters had been licensed as foster parents until August 2003, they were
8 not licensed foster parents during the time that Julia and Rachel were “placed” with
9 them. It also found that the Ritters did not attend CYFD meetings about Julia and
10 Rachel and that CYFD did not visit the Ritter home while Julia and Rachel were
11 “placed” there even though its policy is to conduct home visits monthly. It found that
12 “[t]here are no . . . contact notes for the period of time Julia and Rachel . . . were
13 ‘placed’ with the Ritters.” These findings are either unchallenged, admitted by CYFD,
14 or supported by the deemed admissions. Finally, CYFD does not challenge the district
15 court’s finding that the social worker noted in the case notes that “[i]n essence, we
16 were asking the Ritters to provide a place for [Julia and Rachel] to sleep, with
17 minimal oversight required.” Together, these findings support the district court’s
18 further finding that the Ritters “were not [f]oster [p]arents for Julia and Rachel
22
1 Mercer-Smith between October 5, 2003[] and January 31, 2004[,]” and related
2 findings.
3 {34} Finally, the findings as to CYFD’s knowledge of the level of contact occurring
4 between the girls and the two families and its facilitation of the Schmierers’ and
5 Farleys’ (1) daily contact with the girls; (2) participation in meetings concerning the
6 girls; (3) reimbursement for medical expenses; and (4) out-of-state vacations with the
7 girls, among other things, support the district court’s further finding that “CYFD, as
8 an agency, engaged in activity and took direct actions that were in contempt of the
9 [Placement Order].” As to the findings related to whether CYFD intended to
10 contravene the Placement Order, the evidence supports these findings as well. CYFD
11 challenges the district court’s findings that “CYFD was only interested in placing
12 Julia . . . with the Schmierers and Rachel . . . with the Farleys[,]” that “CYFD did not
13 want to place [Julia and Rachel] with the Ritters[,]” that a CYFD social worker told
14 the Ritters that she intended the girls to be with the Schmierers and Farleys “as much
15 as possible” while “placed” with them, and that “[t]he designation by CYFD of the
16 Ritters as ‘foster parents’ was done deliberately by CYFD for the purpose of
17 concealing from the [c]ourt . . . that [the Schmierers and Farleys] served the function
18 of being foster parents for [the girls].” Gay Farley testified that immediately after the
19 placement hearing at which the district court prohibited placement of the girls with
23
1 the Schmierers and Farleys, she met with several CYFD personnel, including CYFD
2 counsel, to develop a plan for the girls’ living arrangements. On cross-examination,
3 she agreed with the Mercer-Smiths’ counsel that “[the] plan that was agreed to by the
4 participants in that meeting was that the girls would sleep at the Ritters[’] and spend
5 the rest of their time with [the Farleys] and the Schmierers[.]” Consistent with this
6 testimony, a CYFD social worker stated in her notes that she told the Ritters that the
7 girls “would be spending the majority of their waking hours either in school or with
8 [the Schmierers and Farleys]. In essence, [CYFD was] asking the Ritters to provide
9 a place for them to sleep, with minimal oversight required” and that she “t[r]ied to
10 assure the Ritters that [CYFD was] asking them to do minimal actual parenting.”
11 CYFD’s case notes indicate that when CYFD decided to implement the semi-
12 independent living plan, CYFD personnel were aware that Rachel’s and Julia’s
13 residence with the Farley’s daughter might violate the placement order. Indeed, the
14 social worker noted that “[t]he judge may disagree with placement of the girls with
15 the Browns [the Farleys’ daughter’s family] as foster care due to their relationship
16 with the Farleys.” In email exchanges discussing the semi-independent living plan
17 and renting a room with the Browns, CYFD personnel acknowledged that this
18 arrangement could constitute an “end run” around the Placement Order, stating, “If
19 the question is do I think . . . [the district court] will accuse us of trying to back door
24
1 [it], yes I think that is possible. If the question is whether we should do it anyway, I
2 think the answer is also yes[.]” CYFD personnel also questioned whether it had “an
3 obligation to inform the court of the relationship [between the Browns] and the
4 Farley[]s who were initially denied by the court[.]” In addition to this evidence, the
5 findings related to CYFD’s intent are supported by facts deemed admitted in the third
6 RFA.
7 {36} We need not address the remainder of the challenged findings, as those already
8 discussed are sufficient to support the district court’s conclusion that CYFD acted in
9 contempt of the Placement Order. We conclude that, viewed in the light most
10 favorable to the district court’s conclusion, the evidence supports the district court’s
11 findings and therefore find no error in its conclusion that CYFD was contumacious.
12 C. Damages
13 {37} CYFD makes seven allegations of error in the district court’s damages award.
14 We address each argument in turn.
15 1. Law of the Case Theory
16 {38} CYFD first argues that the damages award to the Mercer-Smiths was contrary
17 to the law of the case. CYFD’s law of the case argument goes as follows: because
18 “CYFD had absolutely no legal duty or obligation to seek, encourage, or support any
19 reconciliation between the girls and their parents[,]” it could not have breached that
25
1 duty and, therefore, there could not have been any damage to the Mercer-Smiths as
2 a result of CYFD’s conduct. For support, CYFD relies on the fact that the district
3 court ruled in 2002 and 2003 that Julia and Rachel “[would] not return to their home
4 of origin.”
5 {39} CYFD conflates the concepts of reunification, meaning that Julia and Rachel
6 would return to live in the Mercer-Smiths’ home, and reconciliation, meaning contact
7 and communication between the girls and their parents in the future. Although the
8 permanency plan for Julia and Rachel was changed from reunification to a planned
9 permanent living arrangement by agreement of the parties, and it was clear that Julia
10 and Rachel would not return to their parents’ home, it is also clear from the record
11 that the district court, several witnesses at the placement hearing, and CYFD itself
12 understood reunification and reconciliation to be two separate ideas. For instance, the
13 district court indicated that reconciliation was still a goal when it ordered the girls to
14 participate in therapy with Janet Mercer-Smith even after the planned permanent
15 living arrangement was instituted. In addition, in questioning Dr. Charles Glass, a
16 therapist hired by CYFD to work with the family, at the placement hearing, CYFD’s
17 counsel asked about CYFD’s obligation to pursue reunification. Dr. Glass
18 differentiated between reunification and reconciliation, stating that he understood that
19 CYFD was not obligated to try to reunify the family. This distinction having been
26
1 made, CYFD went on to ask him about reconciliation in families separated because
2 of abuse. On redirect, the Mercer-Smiths’ counsel also distinguished between
3 reunification and reconciliation and Dr. Glass testified as to the potential impact of
4 reconciliation on children. Similarly, CYFD asked Jennifer Schmierer how she would
5 react “if Julia indicated that she wanted to have contact with her parents” and she
6 testified that she would “make sure it would happen.” CYFD also asked whether Ms.
7 Schmierer had any conversations with Julia about whether she should have contact
8 with her parents. CYFD also questioned Rachel and Julia about whether they had
9 spoken with Ms. Schmierer or Ms. Farley about having contact with their parents.
10 Given that reunification with the Mercer-Smiths was not a goal at the time of the
11 hearing, these questions indicate that CYFD and these witnesses understood that
12 reconciliation between the Mercer-Smiths and the girls was different from
13 reunification. Thus, it was not the “law of the case” that reconciliation was not a goal
14 for Rachel and Julia.
15 2. Substantial Evidence
16 {40} CYFD next argues that “there was no credible evidence introduced at the
17 placement hearing or the damages trial as to [the] viability of reconciliation between
18 the girls and the [Mercer-Smiths] as of 2003.” It specifically challenges two findings
19 of fact in the district court’s order on damages. After reviewing of the evidence in the
27
1 light most favorable to the district court’s findings and disregarding evidence to the
2 contrary, we conclude that these findings are supported by the record. Miller, 2014-
3 NMCA-053, ¶ 11.
4 {41} In challenged finding number six, the district court found that “prior to the
5 [district c]ourt’s . . . 2003 . . . ruling on CYFD’s proposed change in placements, there
6 continued to be viable prospects for reconciliation between [the Mercer-Smiths] and
7 their daughters.” Dr. Glass was admitted as an expert in psychology at the placement
8 hearing and also testified later at the damages hearing. At the damages hearing, Dr.
9 Glass testified that as of late 2002, although “[t]here were certainly concerns about
10 whether it was going to be possible or not, [he] believed that the potential was still
11 there for reconciliation [between the Mercer-Smiths and their daughters].” Dr. Glass
12 also signed a letter that was submitted to the district court before the placement
13 hearing and later admitted at the damages hearing stating that he believed “that any
14 possibility of future reconciliation with the girls’ parents would be significantly
15 lessened if they were to reside with [the Schmierers and the Farleys].” This statement
16 implies that at the time of the letter there was a possibility of reconciliation between
17 the girls and their parents. CYFD appears to argue that this evidence is insufficient
18 because it is merely the authors’ belief. But both Dr. Glass and Dr. Ned Siegel, who
19 also signed the letter, were admitted as experts and experts are permitted to express
28
1 an opinion under Rules 11-702, 703, and 704 NMRA. We conclude that this evidence
2 is sufficient to support the district court’s finding number six that there were “viable
3 prospects for reconciliation” before the 2003 Placement Order.
4 {42} Challenged finding number seven states that “[d]espite th[e] written statement
5 [referenced above], CYFD, Julia and Rachel never asserted in responsive pleadings
6 and testimony that prospects for reconciliation . . . had already been irretrievably
7 damaged.” Because the evidence cited in support of this finding includes only the
8 pleadings in response to the Mercer-Smiths’ objection to the placement of the girls
9 and to the testimony at the placement hearing, we interpret this finding to be focused
10 only on what CYFD asserted in those pleadings. On appeal, CYFD points to evidence
11 that “Julia and Rachel had repeatedly told their therapists, the expert psychologists,
12 CYFD, and the judge that they had no desire or intention to reunify or reconcile with
13 their parents.” It maintains that “[a]ll this evidence contradicts the [district c]ourt’s
14 [f]inding of [f]act [number seven].” But CYFD does not direct us to any instance in
15 the specific pleadings and testimony referenced in this finding where CYFD or the
16 girls stated that reconciliation was no longer viable. We conclude that this finding is
17 supported by the evidence, although we note that the finding is also very limited in
18 scope.
29
1 {43} CYFD argues in a few sentences that its conduct was not the cause of any
2 decrease in the possibility of reconciliation and maintains that the district court’s
3 findings and conclusions to the contrary are “erroneous.” It claims that “[t]hese
4 findings and conclusion[s] are contradicted by Julia and Rachel.” But under the
5 substantial evidence standard of review, we do not consider evidence contrary to the
6 district court’s findings. Miller, 2014-NMCA-053, ¶ 11. In addition, CYFD does not
7 explain how the district court’s findings are incorrect. We therefore do not consider
8 this argument any further. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,
9 ¶ 15, 137 N.M. 339, 110 P.3d 1076.
10 3. Unclean Hands4
11 {44} CYFD argues that the district court abused its discretion when it awarded
12 damages to the Mercer-Smiths because “[t]he doctrine of unclean hands generally
13 prevents a complainant from recovering where he or she has been guilty of
14 fraudulent, illegal or inequitable conduct in the matter with relation to which he [or
15 she] seeks relief.” Magnolia Mountain Ltd., P’ship v. Ski Rio Partners, Ltd., 2006-
16 NMCA-027, ¶ 36, 139 N.M. 288, 131 P.3d 675 (alteration in original) (internal
17 4
Although CYFD references estoppel in its brief in chief, it makes no
18 substantive argument based on estoppel and expressly stated in the proceedings below
19 that it withdrew its estoppel argument. We therefore do not address CYFD’s
20 argument based on estoppel.
30
1 quotation marks and citation omitted). CYFD argues that the damages award is
2 improper because of the Mercer-Smiths’ “reprehensible misconduct” that led to entry
3 of the no-contest plea. The Mercer-Smiths argue that this argument is unavailing
4 because “[i]n most other jurisdictions, the [unclean hands] doctrine is not a defense
5 to a claim for damages.” They cite to several out-of-state cases as support for this
6 proposition. See, e.g., Wilson v. Prentiss, 140 P.3d 288, 293 (Colo. App. 2006) (“The
7 doctrine of unclean hands enables a defendant to raise an equitable defense to defeat
8 equitable remedies, but not remedies at law.”).
9 {45} Several New Mexico domestic relations cases state that “in the context of
10 contempt proceedings, the court has the power to consider any valid defense,”
11 including equitable defenses. Hopkins v. Hopkins, 1989-NMCA-101, ¶ 18, 109 N.M.
12 233, 784 P.2d 420; Mask v. Mask, 1980-NMSC-134, ¶ 5, 95 N.M. 229, 620 P.2d 883
13 (stating that because that “case arose in the context of a contempt proceeding[,] . . .
14 equitable principles [were] applicable”). In Corliss v. Corliss, 1976-NMSC-023, ¶ 3,
15 89 N.M. 235, 549 P.2d 1070, the Court appeared to distinguish between contempt
16 actions and those for money damages when it stated that the wife in that case brought
17 a “contempt action as opposed to seeking a money judgment for arrearages. This
18 action invoked the equitable powers of the court in which the trial court has
19 discretion. In a suit for a money judgment very little discretion is allowed. The court
31
1 merely examines the validity of the prior judgment and enters a money judgment.” Id.
2 We have found no New Mexico case expressly addressing whether the unclean hands
3 doctrine is a defense to contempt of court where compensatory money damages are
4 sought.
5 {46} In El Paso Production Co. v. PWG Partnership, however, the New Mexico
6 Supreme Court held that district courts do not have discretion to withhold a damages
7 award for contempt if the plaintiff has proven a violation, causation, and damages.
8 1993-NMSC-075, ¶ 31, 116 N.M. 583, 866 P.2d 311 (“We hold that once a plaintiff
9 satisfies his burden of proving violation of a court order, proximate cause, and
10 damages, he or she is entitled to judgment for recovery of those damages.”). A lack
11 of discretion in this decision suggests that the equitable defense of unclean hands is
12 not available. But we need not resolve this issue because even if it is, the doctrine
13 does not apply here. “Ordinarily, the wrong which may be invoked to defeat a suit
14 under the clean-hands maxim must have an immediate and necessary relation to the
15 equity which the complainant seeks to enforce against the defendant.” Romero v.
16 Bank of the Sw., 2003-NMCA-124, ¶ 38, 135 N.M. 1, 83 P.3d 288 (alteration, internal
17 quotation marks, and citation omitted). “What is material is not that plaintiff’s hands
18 are dirty, but that he dirtied them in acquiring the right he now asserts[.]” Mechem v.
19 City of Santa Fe, 1981-NMSC-104, ¶ 10, 96 N.M. 668, 634 P.2d 690. For instance,
32
1 in Romero, this Court affirmed the denial of the unclean hands defense where the
2 “unclean” conduct complained of was unrelated to the transaction for which the
3 plaintiff sought restitution. 2003-NMCA-124, ¶ 38. Here, the Mercer-Smiths sought
4 to have the district court’s Placement Order enforced. The conduct of which CYFD
5 complains did not occur during the placement or contempt proceedings and did not
6 relate to the Mercer-Smiths’ right to have the Placement Order followed. We
7 conclude that the district court did not err in denying CYFD’s assertion that the
8 unclean hands doctrine precludes the contempt damages award.
9 4. Evidentiary Rulings
10 {47} CYFD argues that the district court erred in three evidentiary rulings. “We
11 review the admission of evidence for abuse of discretion.” Couch v. Astec Indus., Inc.,
12 2002-NMCA-084, ¶ 8, 132 N.M. 631, 53 P.3d 398. First, it maintains that the district
13 court wrongly precluded admission of the stipulated judgment in which the Mercer-
14 Smiths entered pleas of no contest. We discern no error in the district court’s ruling
15 because Rule 11-410(A)(2) NMRA prohibits the admission of a nolo contendere plea
16 against the one who made it as proof of guilt. In an argument similar to its “unclean
17 hands” argument, CYFD argues that it “would have utilized [the evidence of the nolo
18 pleas] to show based on those admissions, that the Mercer-Smiths were not entitled
19 to damages.” Such use is clearly prohibited by Rule 11-410(A)(2). See Kipnis v.
33
1 Jusbasche, 2015-NMCA- , ¶ 15, P.3d (No. 33,821, Apr. 2, 2015) (stating
2 that the rule prohibits admission of evidence of nolo pleas when offered to prove
3 guilt).
4 {48} Second, CYFD argues that the district court erred when it denied admission of
5 the transcript of a safehouse interview with Julia. Despite CYFD’s arguments that the
6 transcript was admissible because it was either a “business record” under Rule 11-
7 803(6) NMRA or a prior consistent statement under Rule 11-801(D)(1) NMRA, the
8 district court ruled that the transcript was inadmissible hearsay. On appeal, CYFD
9 argues only that the interview “was relevant and admissible as [a] prior consistent
10 statement[].” It does not make a substantive argument as to why admission of a prior
11 consistent statement was necessary or why the district court’s ruling was incorrect.
12 “We will not review unclear arguments, or guess at what [a party’s] arguments might
13 be.” Headley, 2005-NMCA-045, ¶ 15.
14 {49} Third, CYFD argues that the district court erred in admitting and considering
15 the testimony by economist Stan Smith and that “[his] entire testimony . . . should be
16 stricken as it fails to meet the admissibility standards pursuant to State v. Alberico
17 [, 1993-NMSC-047], 116 N.M. 156, 861 P.2d 192 . . . and Daubert v. Merrell Dow
18 Pharmaceuticals, Inc., 509 U.S. 579 . . . (1993).” It also argues that Smith’s
19 testimony was “not . . . sound as his opinions were based on self-reporting
34
1 impairment assessments . . . by the Mercer-Smith[s], as well [as] upon blatantly false
2 assumptions that Julia and Rachel . . . would provide household services and
3 guidance and counseling to [the Mercer-Smiths].” [BIC 97]
4 {50} Generally, “it is not improper for the trial court to permit an economist to
5 testify regarding his or her opinion concerning the economic value of a plaintiff’s loss
6 of enjoyment of life.” Sena v. N. M. State Police, 1995-NMCA-003, ¶ 29, 119 N.M.
7 471, 892 P.2d 604. As to CYFD’s argument regarding the proper standard for
8 admission of testimony by an economic expert, we note that CYFD conceded in the
9 district court that the Alberico/Daubert standard did not apply to expert testimony by
10 an economist that is based on experience and training. See State v. Torres, 1999-
11 NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d 20 (concluding that “application of the
12 Daubert factors is unwarranted in cases where expert testimony is based solely upon
13 experience or training.” (internal quotation marks and citation omitted)). We agree
14 that the district court did not err in not applying the Alberico/Daubert standard for
15 scientific reliability of the economist’s testimony. See Smith v. Ingersoll-Rand Co.,
16 214 F.3d 1235, 1245-46 (10th Cir. 2000) (holding that the district court did not err
17 in admitting testimony by Stan Smith even though it did not perform a Daubert
18 analysis); Gurule v. Ford Motor Co., No. 29,296, mem. op., 2011 WL 2071701, ¶ 8
19 (N.M. Ct. App. Feb. 17, 2011) (non-precedential) (holding that testimony by an
35
1 economist on hedonic damages was not subject to the “Alberico standard of scientific
2 reliability” (internal quotation marks and citation omitted)).
3 {51} Instead, CYFD argued in the district court that the main question before the
4 district court was whether “th[e] evidence [presented by Smith would] be of
5 assistance to . . . the trier of fact.” This argument rests on CYFD’s contention that
6 Smith’s testimony was essentially speculative because it was based on the Mercer-
7 Smiths’ own estimates of their loss of enjoyment and assumptions about what might
8 have happened in the relationship between the girls and their parents in the future. As
9 the district court observed, however, the basis of Smith’s opinions provided rich
10 fodder for cross-examination. Simply because Smith’s calculations were based on
11 self-reports by the Mercer-Smiths does not render them inadmissible here.
12 {52} To the extent CYFD argues that Smith’s testimony impermissibly intruded on
13 the realm of the factfinder, we disagree that Smith’s testimony “crosse[d] the line
14 between the permissible and impermissible [by] attempt[ing] to define the legal
15 parameters within which the [factfinder] must exercise its fact-finding function.”
16 Smith, 214 F.3d at 1246 (internal quotation marks and citation omitted). Smith
17 testified in some detail about his model for calculating the value of a loss of
18 enjoyment of life and loss of services, the assumptions he employed, the inputs he
19 received from the Mercer-Smiths, and the studies on which the model was based. He
36
1 testified that the report he provided included several calculations intended as a guide
2 for the district court but did not offer an opinion as to the value the district court
3 should adopt. Furthermore, the district court did not adopt any of the damages figures
4 from Smith’s report. The report provided estimates of the damages based on the
5 Mercer-Smiths’ report of their percentage of loss of enjoyment as well as estimates
6 based on a percentage of half that amount. The district court’s award was less than
7 the lower estimate from Smith’s report and did not include any damages related to
8 loss of services by Julia and Rachel. We discern no error in admission of this
9 testimony.
10 5. Tort Claims Act
11 {53} CYFD next argues that the Mercer-Smiths’ claim for damages is akin to a tort
12 claim and that it is “not actionable pursuant to the New Mexico Tort Claims Act
13 [(NMTCA)] as there is no waiver of immunity.” It also argues that, if this Court
14 concludes that sovereign immunity does not preclude damages, the damages should
15 be limited to the statutory cap in the NMTCA. Neither of these arguments is availing.
16 {54} The district court’s contempt power derives from the judicial branch’s inherent
17 power to compel compliance with its orders. Greenwood, 1957-NMSC-071, ¶ 17
18 (“[T]he power to punish for contempt is inherent in the courts and its exercise is the
19 exercise of the highest form of judicial power.”). “The real basis of this power is to
37
1 be found in the doctrine of separation of powers as provided for in the Organic Act
2 and later in the New Mexico Constitution.” Id. Such power is not absolute and may
3 be circumscribed by the legislature to a limited extent. Id. ¶ 18. Thus, although “the
4 [L]egislature may provide rules of procedure which are reasonable regulations of the
5 contempt power it may not, either by enacting procedural rules or by limiting the
6 penalty unduly, substantially impair or destroy the implied power of the court to
7 punish for contempt.” Id. When the legislature acts to regulate the court’s contempt
8 power, we examine “the reasonableness of the legislative regulation.” Id. ¶ 19.
9 Ultimately, “[t]he statutory regulation must preserve to the court sufficient power to
10 protect itself from indignities and to enable it effectively to administer its judicial
11 functions.” Id.
12 {55} Common law sovereign immunity was abolished by the New Mexico Supreme
13 Court in 1975. Hicks v. State, 1975-NMSC-056, ¶ 9, 88 N.M. 588, 544 P.2d 1153
14 (“Common law sovereign immunity may no longer be interposed as a defense by the
15 [s]tate, or any of its political subdivisions, in tort actions.”). Later cases clarified that
16 the holding in Hicks “generally abolished the common law doctrine of sovereign
17 immunity in all its ramifications, whether in tort or contract or otherwise.” Torrance
18 Cnty. Mental Health Program, Inc. v. N. M. Health & Env’t Dep’t, 1992-NMSC-026,
19 ¶ 14, 113 N.M. 593, 830 P.2d 145. In response, the Legislature passed the NMTCA,
38
1 which “grants all government entities and their employees general immunity from
2 actions in tort, but [also] waives that immunity in certain specified circumstances.”
3 Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-040, ¶ 8, 140 N.M. 205, 141 P.3d
4 1259; see NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2013). CYFD
5 argues that the sovereign immunity granted to state agencies by the NMTCA
6 immunizes it from being held in contempt of court.
7 {56} There are two reasons why this argument fails. First, the plain language of the
8 NMTCA “grant[s] immunity from liability for any tort” and nothing in the NMTCA
9 addresses immunity from contempt of court. Section 41-4-4(A) (emphasis added). To
10 the extent that CYFD argues that the NMTCA applies because the damages here “are
11 in the nature of a tort claim,” we are unpersuaded. Simply because contempt
12 compensatory damages are similar to tort damages does not mean they are governed
13 by the NMTCA. Second, accepting CYFD’s argument would mean that the
14 Legislature effectively “destroyed” the district court’s ability to find state agencies
15 in contempt and provide a remedy therefor, a clear and improper infringement on the
16 inherent power of the judicial branch. See Greenwood, 1957-NMSC-071, ¶ 18. For
17 these reasons, we reject CYFD’s assertion that it is immune from the district court’s
18 contempt power under the NMTCA. See generally State ex rel. Taylor v. Johnson,
19 1998-NMSC-015, ¶ 62, 125 N.M. 343, 961 P.2d 768 (“It is clear this Court has
39
1 authority to implement the full extent of contempt sanctions against executive branch
2 members, including fines and imprisonment.”); Baca, 1995-NMSC-033, ¶¶ 22-23
3 (commenting that attorney fee awards have a compensatory aspect and stating that a
4 court may award attorney fees against the state for contempt).
5 {57} CYFD makes a cursory argument that, even if it is not immune from liability
6 under the NMTCA, any liability “must be limited to the statutory caps for a single
7 occurrence under the [NM]TCA.” We disagree. As presently configured, the NMTCA
8 does not govern the district court’s power to hold the State in contempt in any way,
9 including limiting the amount of damages that might be awarded.
10 6. Attorney Fees
11 {58} CYFD argues that the attorney fee award “should be substantially reduced, as
12 the attorney fees and costs submitted by [the Mercer-Smiths] were excessive,
13 duplicative, incomplete, not reasonable[,] and many costs were not allowable
14 pursuant to Rule 1-054 [NMRA].” It makes several arguments on this issue. First, it
15 argues that an award of attorney fees against the state is improper except where the
16 litigation was “frivolous or vexatious.” It cites to Baca, 1995-NMSC-033, ¶ 12, for
17 this proposition. But CYFD has simply cherry-picked this favorable phrase from the
18 Baca opinion. In the same sentence quoted by CYFD, the Baca Court stated that
19 attorney fees are appropriate “to vindicate [the court’s] judicial authority.” Id. In
40
 1 addition, the Baca Court adopted the rationale in Chambers v. NASCO, Inc., 501 U.S.
2 32, 45-46 (1991), in which the U.S. Supreme Court stated that courts have “the power
3 to award attorney[] fees as a sanction for bad faith or vexatious litigation or for
4 defiance of a court order.” Baca, 1995-NMSC-033, ¶ 12 (emphasis added). Reading
5 these cases in their entirety, it is clear that attorney fees against the state are
6 permissible when the state defies a court order, not just for frivolous or vexatious
7 claims.
8 {59} Second, CYFD argues that the district court should have disallowed attorney
9 fees incurred after entry of the contempt order. CYFD points to El Paso Production
10 Co. for the proposition that only attorney fees related to prosecution of a contempt
11 order may be awarded. It apparently finds this rule in the Court’s statement that, after
12 finding contempt, “[t]he court . . . may award attorney[] fees incurred in obtaining the
13 order of contempt.” 1993-NMSC-075, ¶ 31. But this reading of El Paso Production
14 Co. ignores the Court’s previous statement that “once a plaintiff satisfies his burden
15 of proving violation of a court order, proximate cause, and damages, he or she is
16 entitled to judgment for recovery of those damages.” Id. (emphasis added). Thus,
17 proving damages is part and parcel of a contempt proceeding. Furthermore, there is
18 nothing talismanic about the entry of a contempt order that cuts off damages related
19 to the contempt incurred after entry of the order. In Spear, this Court held that a
41
1 compensatory award of $25,000 was not an abuse of discretion where the funds were
2 earmarked to pay for anticipated future litigation made necessary by the contempt.
3 1996-NMCA-048, ¶ 44; see In re Hooker, 1980-NMSC-109, ¶ 1, 94 N.M. 798, 617
4 P.2d 1313 (affirming a compensatory contempt award for attorney fees, including fees
5 incurred subsequent to entry of the contempt order).
6 {60} Third, CYFD argues that the district court erroneously awarded attorney fees
7 and costs associated with defense of the abuse and neglect petition. As support, it
8 directs us to an affidavit submitted by its fee expert and presented to the district court
9 which stated that a portion of the fees requested were related to the abuse and neglect
10 petition. But the Mercer-Smiths presented their own affidavits denying that the fee
11 request included any fees unrelated to the contempt proceedings. “[W]hen there is a
12 conflict in the testimony, we defer to the trier of fact.” Buckingham, 1998-NMCA-
13 012, ¶ 10. Given that there is evidence supporting the district court’s finding that the
14 attorney fees requested were incurred in “investigating and prosecuting the contempt
15 proceedings,” we see no abuse of discretion in this regard.
16 {61} Finally, CYFD makes a generalized attack on the attorney fee award by citing
17 to its pleadings below, which it asserts alerted the district court to “example after
18 example” of unallowable costs. Absent specific allegations and citations, we decline
19 CYFD’s invitation to search the record for errors in the district court’s attorney fee
42
1 award.5 We conclude that the district court did not abuse its discretion in the award
2 of attorney fees to the Mercer-Smiths.
3 7. Peremptory Excusal
4 {62} On January 4, 2010, the present matter was reassigned to Judge Michael Vigil
5 as part of a mass reassignment of cases by the chief judge under Rule LR1-203(A)
6 NMRA. On January 12, 2010, Judge Barbara Vigil, who had overseen the case since
7 2001, On appeal, CYFD argues that the district court erred in denying CYFD’s
8 motion to reassign the case to another judge, or for leave to file a peremptory excusal.
9 As we understand it, CYFD’s argument boils down to its assertion that the January
10 12, 2010, order reassigning the case to Judge Barbara Vigil was void because it was
11 contrary to LR1-203(A) and Rule 1-088.1 NMRA, and that the order is an indication
12 that Judge Vigil “actively sought to retain jurisdiction over the case” because she was
13 inappropriately “embroiled” in the proceeding.
14 {63} We need not address these arguments, however, because the order denying
15 CYFD’s motion states that “[t]his matter was inadvertently administratively
16 5
CYFD does specify one cost: a charge of $24,225 for a psychiatrist who did
17 not testify at trial. Other than asserting that this charge is not allowable, it makes no
18 argument as to why such a charge is inappropriate in an award for contempt
19 compensatory damages. We therefore do not address this issue. Headley, 2005-
20 NMCA-045, ¶ 15 (“We will not review unclear arguments, or guess at what [a
21 party’s] arguments might be.”).
43
1 reassigned from Judge Barbra J. Vigil to Judge Michael E. Vigil as part of a mass
2 reassignment” and that “[b]ecause the administrative reassignment was merely an
3 administrative error, the transfer is rendered a nullity and the case shall remain
4 assigned to Judge Barbara Vigil.” The order further states that “Judge Barbara Vigil’s
5 continued assignment to the matter is not prejudicial to any party.” The order was
6 signed by Judge Barbara Vigil, Judge Michael Vigil, and Judge Stephen Pfeffer, who
7 was the chief judge at the time. Given the concurrence of three judges that the
8 reassignment was an administrative oversight, we perceive no error in the denial of
9 CYFD’s motion.
10 III. CONCLUSION
11 {64} For the foregoing reasons, we affirm the district court’s contempt order and
12 award of damages. Consistent with the reasoning behind the district court’s award of
13 attorney fees, we conclude that the Mercer-Smiths are entitled to attorney fees on
14 appeal. We therefore remand to the district court for calculation of reasonable
15 attorney fees.
16 {65} IT IS SO ORDERED.
17
18 MICHAEL D. BUSTAMANTE, Judge
44
1 WE CONCUR:
2
3 MICHAEL E. VIGIL, Chief Judge
4
5 M. MONICA ZAMORA, Judge
45