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LAURA WALRAVEN,
Petitioner-Appellant,
v.
JAMES SMITH, JR.,
Respondent-Appellee.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY,
Daylene Marsh, District Judge
Laura Walraven, Farmington, NM, Pro Se
Appellant
Bradford Dalley, Farmington, NM, for
Appellee
MICHAEL E. VIGIL, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, M. MONICA ZAMORA, Judge
{1} Appearing pro se,
Petitioner, Laura Walraven (Mother), appeals from the district court’s order
finding Mother in contempt of court, suspending all previous custody and
visitation orders, and establishing a new visitation schedule for Mother. [RP
346, 352-53] Mother also challenges the district court’s order to the extent
that it implicitly denied her motion for reconsideration of the court’s earlier
order awarding primary physical custody of Child to Respondent, James Smith,
Jr. (Father). [RP 327, 330] We issued a notice proposing to summarily affirm
and Mother filed an objection, in which she raised additional arguments. We
construe Mother’s objection as a memorandum in opposition and a motion to amend
the docketing statement. We deny Mother’s motion to amend the docketing
statement and affirm.
A. MEMORANDUM
IN OPPOSITION
{2} In our notice, we
stated that Mother appeared to be challenging the district court’s custody
determination because (1) she was not represented by counsel in the district
court; (2) she did not have the opportunity to retain an expert witness to
testify on her behalf; and (3) the district court did not hear testimony from
Child’s counselor at the hearing on March 12, 2013. We proposed to affirm with
respect to all of these issues. Mother does not address the second and third
issues in her memorandum in opposition and we thus deem them abandoned.
See
Taylor v. Van Winkle’s Iga Farmer’s Mkt.,
1996-NMCA-111, ¶ 5,
122 N.M. 486,
927 P.2d 41 (recognizing that issues raised in a docketing statement, but not
contested in a memorandum in opposition are abandoned).
{3} Mother continues to
argue that the district court erred in granting her attorney’s motion to
withdraw and in failing to appoint an attorney on her behalf. Specifically, she
contends the district court abused its discretion in failing to hold a hearing
on the motion and in granting the motion in light of the fact that Mother paid
her attorney “thousands of dollars” to represent her. [MIO ¶¶ 3, 4] She also
contends the district court should have appointed an attorney to represent her
because the actions that have taken place in this case are “tantamount to
terminating [Mother’s] parental right[s.]” [MIO ¶ 7]
{4} We perceive no
error in the district court’s grant of Mother’s attorney’s motion to withdraw.
As an initial matter, Mother does not point to any authority which would
require the district court to hold a hearing on an unopposed motion to
withdraw, and we are aware of none.
See In re Adoption of Doe,
1984-NMSC-024, ¶ 2,
100 N.M. 764,
676 P.2d 1329 (“We assume where arguments in
briefs are unsupported by cited authority, counsel after diligent search, was
unable to find any supporting authority. We therefore will not do this research
for counsel.”). With respect to the merits, we perceive no error in the
district court’s grant of the motion. Mother’s attorney stated, as grounds for
the motion, that Mother “no longer wishes that I represent her” and that she
refunded the money she had held in trust for Mother. [RP 267] Father’s attorney
stated in a subsequent pleading that Mother “fired her attorney[.]” [RP 273]
Mother does not provide us with any authority supporting her argument that it
was error for the district court to grant her attorney’s motion on these facts,
and we are aware of none.
See In re Adoption of Doe,
1984-NMSC-024, ¶ 2.
{5} We also perceive no
error in the fact that the district court allowed Mother to proceed pro se and
did not appoint counsel on her behalf. As we mentioned in our notice, a party
does not have the right to appointed counsel in civil cases.
See Bruce v.
Lester,
1999-NMCA-051, ¶ 4,
127 N.M. 301,
980 P.2d 84. The fact that Mother
faced a potential change to her custody and visitation arrangements in this
case, which she initiated, does not make this case analogous to a case in which
the State seeks to terminate a parent’s parental rights. Mother does not
provide us with any authority supporting her argument, and we are aware of
none.
See In re Adoption of Doe, 1984- NMSC-024, ¶ 2.
{6} To the extent that
Mother contends the district court erred in refusing to grant her a continuance
in order to obtain new counsel, the record does not reflect that Mother
requested a continuance and we thus conclude that this argument has not been
preserved for our review.
See State v. Varela,
1999-NMSC-045, ¶ 25,
128
N.M. 454,
993 P.2d 1280 (“In order to preserve an error for appeal, it is
essential that the ground or grounds of the objection or motion be made with
sufficient specificity to alert the mind of the trial court to the claimed
error or errors, and that a ruling thereon then be invoked.” (internal
quotation marks and citation omitted)).
{7} In addition to
making arguments with respect to the district court’s grant of her attorney’s
motion to withdraw, Mother raises four additional issues in her motion to amend
the docketing statement. First, she contends the district court abused its
discretion in requiring her to share the results of her court-ordered
psychiatric examination report with the entity responsible for supervising her
visitation with Child. [MIO ¶ 6] Second, she contends the district court erred
in relying on her statement that she would not follow the court’s orders
because that “was not what I meant[.]” [MIO ¶ 8] Third, she contends the
district court erred “by not putting [Child’s] best interest over her personal
bias, dislikes, and contempt for me and my [d]isability[.]” [MIO ¶ 10] Fourth,
she contends the district court erred in finding her in contempt of court for
failing to appear at a hearing about which she did not receive notice. [MIO ¶
11]
{8} With respect to the
first issue, we see no evidence in the record that Mother preserved this issue
by raising it in the district court, and thus do not consider it.
See Varela,
1999-NMSC-045, ¶ 25.
{9} With respect to the
second issue, we perceive no error in the district court’s reliance on Mother’s
statement in open court that she would not abide by any order of the court. [RP
327, ¶ 2] Mother does not deny making this statement and cites no authority
supporting her position.
See In re Adoption of Doe,
1984-NMSC-024, ¶ 2.
{10} With respect to the
third issue, we perceive no evidence of personal bias in the district court’s
ruling, and no evidence that the district court acted in a way that was
inconsistent with Child’s best interests. A party must present a reasonable
factual basis for doubting a judge’s impartiality,
see State ex rel.
Bardacke v. Welsh,
1985-NMCA-028, ¶ 62,
102 N.M. 592,
698 P.2d 462, and
Mother has not satisfied this burden.
{11} With respect to the
fourth issue, we disagree with Mother’s characterization of the basis for the
district court’s contempt finding. She contends the district court found her in
contempt because she failed to appear at the hearing on Father’s motion for an
order to show cause. [MIO ¶ 11] The record reflects, however, that the district
court found Mother in contempt because she failed to exchange Child with Father
as agreed upon. This was the basis for Father’s motion for an order to show
cause and the court heard evidence on this issue at the order to show cause
hearing. [RP 335, 346-51] Mother does not contest the veracity of the evidence
presented to the district court with respect to this issue and we perceive no
clear error or deficiency in the district court’s findings with respect to
notice.
See Herrera v. Roman Catholic Church,
1991-NMCA-089, ¶ 14,
112
N.M. 717,
819 P.2d 264 (“Unless clearly erroneous or deficient, findings of the
trial court will be construed so as to uphold a judgment rather than to reverse
it.”).
{12} Because we conclude
that the additional issues Mother seeks to raise were either not preserved or
are not viable, we deny her motion to amend.
See State v. Rael,
1983-NMCA-081, ¶ 15,
100 N.M. 193,
668 P.2d 309 (explaining standard for
granting a motion to amend);
see also State v. Moore,
1989-NMCA-073, ¶
44,
109 N.M. 119,
782 P.2d 91 (stating that we will deny a motion to amend that
raises issues that are not viable),
superseded by statute on other grounds
as recognized in State v. Salgado,
1991-NMCA-044,
112 N.M. 537, 837 P.2d
730.
{13} For the reasons
stated above and in our previous notice, we affirm the district court’s order
finding Mother in contempt of court, suspending all previous custody and
visitation orders, and establishing a new visitation schedule for Mother.