Stuckey v. Lamprell

REX E. STUCKEY, Petitioner-Appellee, v. TAMRA L. LAMPRELL, Respondent-Appellant.

NO. A-1-CA-35538

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 18, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY

Matthew J. Wilson, District Judge

Boyle Law Office

Gary W. Boyle

Santa Fe, NM

for Appellee

Atkinson & Kelsey, PA

Thomas C. Montoya

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

VIGIL, Judge.

{1} Mother makes three arguments on appeal: (1) the procedure by which the district court adopted the September 27, 2013 interim order changing sole legal custody of Child from Mother to Father (the Interim Order) violated her right to due process, rendering the Interim Order void; (2) assuming the Interim Order is void, such a determination requires that sole legal custody of Child be returned to Mother and that all subsequent orders of the district court on the issue of custody be deemed void; and (3) the district court erred in denying her postjudgment motion for a bonding study. We affirm. Because this is a memorandum opinion and the parties are familiar with the facts and procedural posture of the case, we set forth only such facts and law as are necessary to decide the merits.

BACKGROUND

{2} In July 2010, Father filed a petition to establish paternity, determine custody and time-sharing, and to assess child support with regard to Child. The district court, on its own motion, ordered that the case be referred to Family Court Services for mediation, early neutral evaluation, priority consultation or advisory consultation as deemed appropriate by Family Court Services. Priority consultation recommendations concerning custody and time-sharing were filed on October 11, 2012, recommending, in pertinent part, that Father be given unsupervised visitation. Mother filed objections to these recommendations.

{3} After an evidentiary hearing, the district court entered a final order on December 14, 2012, in which the court adopted the priority consultation recommendations and awarded Father unsupervised visitation. Updated priority consultation recommendations were filed on April 9, 2013, recommending, in pertinent part, that Father continue to have unsupervised visitation with Child and that advisory consultation should be conducted through Family Court Services to further address custody, time-sharing, and other parenting issues. The district court filed its order adopting these recommendations on May 20, 2013.

{4} In an order filed on September 6, 2013, the district court granted Father's motion to hold Mother in contempt for refusing to turn Child over to him for scheduled unsupervised visitation, and the district court also set a hearing for September 20, 2013 to "discuss the progress of the Advisory Consultation Recommendations and any request by the Consultant for additional information[,]" which was continued to September 27, 2013.

{5} At the September 27, 2013 hearing, the district court announced that Family Court Services had completed the advisory consultation report and because of the nature of the report and the concerns raised therein regarding Mother, the court was adopting Family Court Service's recommendations immediately. The district court explained to the parties in open court that "if such a drastic step is not made, then the child can be harmed." The September 27, 2013 written order adopting theadvisory consultant's recommendations, the Interim Order, states that the advisory consultation report

raises significant concerns regarding Mother's ability to parent, and [Child's] safety while with Mother including:

a. The results of Mother's psychological testing and diagnosis.

b. Concerns regarding [Child's] safety while with Mother.

c. That Mother 'is so highly consumed with this case that it interferes with her ability to spend time with [Child] to provide enriching activities. The investment of time and energy that Mother is making to analyze and interpret this case appears unhealthy and confirms the psychologist's assessment that her 'analytic skills can be detrimental when they are paired with suspiciousness, defensiveness, and self-protection.'

The district court therefore ordered, in pertinent part, that custody of Child be immediately transferred to Father on an interim basis. The parties were given copies of the advisory consultation report at the September 27, 2013 hearing and were informed that a hearing on any objections to the advisory consultation recommendations would be held on December 10, 2013.

{6} Mother filed objections to the Interim Order and a Rule 1-060(B) NMRA motion for reconsideration on October 9, 2013. However, there was significant delay in the hearing on Mother's objections to the Interim Order. This delay was the result of the following events: (1) the district court's order granting Mother's December 6, 2013 motion to postpone the hearing until at least late January 2014 based on the anticipated withdrawal of her attorney; (2) Mother's motion seekingthe judge's recusal for a conflict of interest, which was granted and left the case without a judge until February 5, 2014; (3) litigation of Mother's Rule 1-060(B) motion for relief from the Interim Order, which was denied on June 30, 2014; motions practice following Family Court Services' July 2, 2014 filing of updated priority consultation recommendations, recommending that the Interim Order remain in place; (5) Mother's litigation with the Office of the Attorney General seeking to obtain from Family Court Services the records relied upon in forming the advisory and priority consultation recommendations, which resulted in the district court's September 2, 2014 order compelling production of the requested records to Mother; and (6) delay caused by the parties' joint motion to vacate the scheduled September 11, 2014 hearing on Mother's objections to the Interim Order, which the district court granted and reset for October 28 and 29, 2014.

{7} On February 13, 2015, after a three-day evidentiary hearing on October 28 and 29, 2014 and February 2, 2015, the district court entered a final order (Final Order) resolving Mother's objections to the Interim Order and certain other motions filed by Mother seeking to expand her visitation with Child. Over the course of this three-day hearing, Mother called witnesses on her behalf, cross-examined witnesses against her, and argued the merits of her objections to the Interim Order and advisory consultation recommendations.

{8} Applying NMSA 1978, Section 40-4-9 (1977), the district court concluded that it was in the best interest of Child that Father maintain sole legal custody, that Mother have periods of unsupervised visitation, and that to the extent that Mother's objections to the Interim Order or advisory and priority consultation recommendations conflicted with the court's findings and conclusions, such objections were overruled. In pertinent part, the district court found that: "Father is capable of supporting a relationship between [C]hild and Mother. Mother's ability to support a relationship between the child and Father is questionable at best." [C]hild should not be subject to another major change in custody at this time." "[C]hild is currently doing well."

{9} Over eight months after entry of the Final Order, on October 22, 2015, Mother filed a motion for a bonding study to determine the best interest of Child with regard to custody and visitation. On March 7, 2016, the district court denied the motion. The district court found that Mother's motion was an untimely discovery motion and that "[p]rior to the trial on the merits, the parties had an extensive period in which to conduct discovery. [Mother] had an opportunity to participate in discovery and the Court issued orders at [Mother's] request requiring additional disclosure of information from Family Court Services and Las Cumbres Community Services."

{10} Mother appeals.

DISCUSSION

I. Due Process in Entry of the Interim Order

{11} Mother argues that the Interim Order was entered in violation of procedural due process and is therefore void. Mother asserts that the due process violation stems from the district court's failure, prior to adopting Family Court Services' advisory consultation recommendations, to give her prior notice that a change in custody matter would be heard and opportunity to object to the advisory consultation recommendations and to examine witnesses. Mother further contends that the advisory consultation recommendations "were based on a report which was not received in evidence, which report was based on a non-expert's reliance on hearsay" and was adopted as a result of ex parte communications between the district court and Family Court Services.

{12} Father responds that "Mother received appropriate due process[.]" Father asserts that "a post-deprivation hearing [held] within a reasonable period does not violate [a] parent's minimum federal due process rights" and that a district court is empowered to take whatever interim actions are needed to protect the best interest of a child even prior to being given an opportunity to be heard. Further, "[b]ecause the [Interim Order] was an interim order only and because the [post-deprivation] hearing afforded to Mother was reasonably scheduled," Father contends, Mother's due process rights were not violated. We agree.

{13} "The Fourteenth Amendment to the U.S. Constitution guarantees citizens . . . procedural due process in state proceedings." Bd. of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, ¶ 21, 118 N.M. 470, 882 P.2d 511. Our review is de novo. See State ex rel. Children, ...