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Date: 01-24-2024
Case Style:
Yvonne Gott v. Robert Edward Gott
Case Number: A-1-CA-39243
Judge: Sylvia LaMar
Court: District Court, Santa Fe County, New Mexico
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Santa Fe, New Mexico divorce lawyers represented the parties in a marriage dissolution action involving child custody dispute.
{¶4} "Due process claims are not exempt from the fundamental requirement of preservation." Moody v. Stribling, 1999-NMCA-094, ¶ 45, 127 N.M. 630, 985 P.2d 1210. Mother acknowledges that she failed to preserve this issue in the district court. She argues, however, that her failure to preserve is excused because she was "unaware that the court would not hold a hearing on [her] objections" before ruling and that she "had no procedural avenue to raise this due process issue to the court after the subject order was filed."
{¶5} We do not agree that Mother's due process claim satisfies any of the exceptions to preservation set forth in our Rules of Appellate Procedure. See Rule 12-321(A) NMRA. Rule 12-321(A) creates a narrow exception to the requirement of preservation for review when "a party has no opportunity to object to a ruling or order at the time it is made." Id. The circumstances here do not satisfy this requirement. Mother was informed by the district court before she prepared and filed her written objections to the advisory consultant's recommendations that written objections were likely to be her only opportunity to challenge the advisory consultant's recommendations. The notice, which accompanied the recommendations, stated clearly that a hearing on any objections made by the parties would be allowed only where the district court found such a hearing necessary to
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reach its decision. This notice gave Mother the opportunity to request a hearing and to explain to the court why, under the circumstances of this case, due process required such a hearing. State ex rel. Child., Youth &Fams. Dep't v. Lorena R., 1999-NMCA-035, ¶ 17, 126 N.M. 670, 974 P.2d 164 ("[P]rocedural due process is a flexible right and the amount of process due depends on the particular circumstances of each case."). Mother did not do so.
{¶6} After the district court entered its order, Mother again had an opportunity under the district court's Rules of Civil Procedure, Rule 1-059 NMRA, to file a motion to reconsider, requesting a hearing, and explaining why, in her view, a hearing was required to afford her due process. Mother filed a motion to reconsider, successfully requesting a hearing, when the district court previously ruled on her motion to relocate. Her failure to do so following this ruling, therefore, cannot be explained by a lack of opportunity to object, since she has demonstrated her knowledge of this procedure earlier.
Gott v. Gott, A-1-CA-39243 (N.M. App. Jan 24, 2023)
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: