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LILA MOFFETT n/k/a LILA MAJOR,
Petitioner-Appellee,
v.
ANTHONY DEVONTENNO,
Respondent-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY, James
Lawrence Sanchez, District Judge
Lila Moffett, Belen, NM, Pro Se Appellee
Anthony Devontenno, Las Cruces, NM, Pro
Se Appellant
MICHAEL E. VIGIL, Judge. WE CONCUR: JAMES
J. WECHSLER, Judge, JONATHAN B. SUTIN, Judge
{1} Father appeals the
district court’s order concerning modification of custody and time sharing. We
issued a calendar notice proposing to affirm, and Father has filed a memorandum
in opposition to the proposed affirmance. We have carefully reviewed the
arguments made in the memorandum in opposition, and are not convinced that the
district court abused its discretion, for the reasons discussed below and in
the calendar notice.
{2} Father renews his
argument that the district court did not hear his motion to modify in a timely
manner. He contends that if the delay had not occurred, Child would have been
only eleven or twelve years old at the time of the hearing, and the Court might
not have given so much weight to her desires concerning custody and visitation.
The fact is, however, that it was Father’s responsibility to ensure that a
timely hearing occurred, by properly requesting a hearing and then, if no
hearing was scheduled, by filing additional pleadings pointing out that fact.
We note that there was a change of judge assignment a few months after Father’s
November 7, 2011 request for a hearing.
[RP 124] It was Father’s
responsibility to alert the replacement judge to his pending motions, rather
than assuming the judge would be able to review any and all transferred cases
to determine whether hearings needed to be scheduled in any of them.
{3} Even more
fundamentally, however, even assuming the district court erred in delaying the
hearing, that fact would not entitle Father to a different result in this
proceeding. The proper remedy for a delayed hearing is not, as Father would
have it, to ignore the time that has passed and the growth Child has undergone.
Instead, the district court properly made its decision on the basis of present
conditions and circumstances, rather than making a hypothetical assumption as
to what the decision might have been if the hearing had been held a year
before, or two years before. We find no abuse of discretion in the district
court’s decision concerning the delayed hearing.
{4} Father also again
argues that the district court gave too much weight to Child’s wishes, because
she was not yet fourteen years old at the time of the hearing. According to
Father, the district court “ruled” that it would consider Child to be fourteen
years of age, even though she was only thirteen-and-one-half years old at the
time of the hearing. We again point out, however, that according to the
applicable statute, the district court was required to consider Child’s wishes
whether she was fourteen years old or younger; and, on the other hand, those
wishes do not automatically control the district court’s decisions concerning
custody and visitation, no matter what the age of Child. NMSA 1978, §
40-4-9
(1977). It was up to the district court to evaluate Child’s maturity as well as
the validity of any concerns Child might have about a changed visitation or
custody schedule. To the extent the district court decided that Child should be
treated as a fourteen-year-old would be under the statute, we cannot say the
court abused its discretion in doing so.
See Normand ex rel. Normand v. Ray,
1990-NMSC-006, ¶ 9,
109 N.M. 403,
785 P.2d 743 (noting district court’s wide
discretion in matters of custody and visitation).
{5} We note Father’s
concern about the school-related activities in which Child is engaged, and the
fact that these activities cut into the time he can spend with Child.
[MIO
unnumbered p. 3] It does not appear that Father brought this concern to the
district court’s attention, as he states the district court “did not hear these
factors.”
[Id.] We will not reverse the district court on the basis of
issues that were not presented to that court for its consideration.
See
Carrillo v. Compusys, Inc.,
1997-NMCA-003, ¶ 11,
122 N.M. 720,
930 P.2d
1172. It is of course beyond dispute that school-related activities or other
activities are beneficial to a young teenager such as Child. If Father feels
nonetheless that these activities overly intrude on the time he spends with
Child, that is a concern that must be addressed to the district court rather
than to this Court for the first time on appeal. If the district court was in
fact presented with this argument and did not find it convincing, we believe
that decision was well within the district court’s discretion, given the
obvious value of these types of activities to Child’s development and
well-being.
{6} For the reasons
stated above and in the calendar notice, we affirm the district court’s
decision in this matter.