Rivas v. Romero

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 MICHAEL RIVAS, 3 Petitioner-Appellant, 4 vs. No. 34,645 5 DENISHA ROMERO, 6 Respondent-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Elizabeth E. Whitefield, District Judge 9 Elizabeth Stacy Vencill 10 Albuquerque, NM 11 for Appellant 12 William R. Brummett 13 Albuquerque, NM 14 for Appellee 15 MEMORANDUM OPINION 16 HANISEE, Judge. 17 {1} Petitioner, Michael Rivas, appeals from the district court’s memorandum order 1 affirming and adopting the family court hearing officer’s report as an order of the 2 district court, filed on March 3, 2015. This Court issued a calendar notice proposing 3 to dismiss Petitioner’s appeal as premature. Petitioner has filed a memorandum in 4 opposition to this Court’s notice of proposed disposition, which we have duly 5 considered. Unpersuaded, we dismiss. 6 {2} Petitioner filed a notice of appeal in this domestic relations/child support case 7 on April 2, 2015. [RP 186] In his docketing statement, he raised 18 issues that 8 essentially boil down to one claim of error: that the hearing officer should not have 9 taken into account Respondent’s child care expenses in determining the amount of 10 child support owed. As we noted, however, in our calendar notice, Petitioner filed in 11 the district court a “verified second motion to reconsider inclusion on the child 12 support worksheet of day care expense in violation of NMSA [Section] 40-4-9.1(H) 13 [(1977)] and applicable law” on March 25, 2015 [RP 168], prior to the filing of his 14 notice of appeal. [CN 2] From our review of the record, it does not appear that the 15 district court ruled on Petitioner’s motion to reconsider. [CN 3] 16 {3} In our notice of proposed disposition, we noted that this Court’s jurisdiction lies 17 from final, appealable orders. See Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC18 005, ¶ 14, 113 N.M. 231, 824 P.2d 1033, limited on other grounds by Trujillo v. 19 Hilton of Santa Fe, 1993-NMSC-017, ¶ 5, 115 N.M. 397, 851 P.2d 1064; see also 2 1 Montoya v. Anaconda Mining Co., 1981-NMCA-113, ¶ 20, 97 N.M. 1, 635 P.2d 1323 2 (observing that an appellate court will raise jurisdictional questions on its own 3 motion), overruled on other grounds as recognized by San Juan 1990-A., L.P. v. El 4 Paso Prod. Co., 2002-NMCA-041, 132 N.M. 73, 43 P.3d 1083. Petitioner devotes 5 much of his memorandum in opposition to establishing that the district court’s March 6 3, 2015, memorandum order was indeed a final, appealable order. [MIO 2-3] On this 7 point, we agree with Petitioner. 8 {4} However, as we observed in our calendar notice, Petitioner’s March 25, 2015, 9 motion for reconsideration—filed within thirty days of the district court’s 10 memorandum order—is best viewed as a motion filed pursuant to NMSA 1978, 11 Section 39-1-1 (1917). [CN 3] According to Grygorwicz v. Trujillo, 2009-NMSC-009, 12 ¶ 8, 145 N.M. 650, 203 P.3d 865, if a party makes a motion directed at the final 13 judgment pursuant to Section 39-1-1, the time for filing an appeal does not begin to 14 run until the district court enters an express disposition on that motion. Further, under 15 Rule 12-201(D) NMRA, the notice of appeal will not become effective, thus 16 transferring jurisdiction from the district court to this Court, until an express ruling is 17 made on the petitioner’s post-judgment motion. See Rule 12-201(D)(1), (4). 18 Consequently, because the district court has not expressly ruled on Petitioner’s motion 19 for reconsideration, we suggested in our calendar notice that the appeal is premature 3 1 and must be dismissed for lack of a final order. [CN 3-4] See Khalsa v. Levinson, 2 1998-NMCA-110, ¶ 12, 125 N.M. 680, 964 P.2d 844 (stating that whether an order 3 is final is a jurisdictional question that this Court is required to raise on its own 4 motion); see also State v. Romero, 2014-NMCA-063, ¶¶ 15-17, 327 P.3d 525 (stating 5 that if this Court does not have jurisdiction, the proper remedy is dismissal). 6 {5} In his memorandum in opposition, Petitioner seeks to place this case outside the 7 strictures of Grygorwicz and Rule 12-201(D) by arguing that neither contemplates the 8 effect of a second motion to reconsider on the finality of the underlying judgment. 9 [MIO 5] Specifically, Petitioner’s position is that the March 25, 2015, motion to 10 reconsider was in actuality a second motion to reconsider. [MIO 3] He argues that this 11 second motion to reconsider did not extend the time for appeal. [MIO 5] In support 12 of this contention, Petitioner cites to the Committee Commentary to Rule 1-059 13 NMRA, which essentially states that following the denial of a motion to reconsider, 14 a subsequent reconsideration of the denial “is not available and the time for appeal 15 cannot be extended by filing a motion to reconsider.” [MIO 5] We are not convinced, 16 however, that this provision is applicable in this case. 17 {6} Petitioner’s argument depends wholly on his characterization of the “verified 18 objection to hearing officer report” filed on February 17, 2015 [RP 148], as a first 19 motion to reconsider. [MIO 3] That filing contained a list of objections to the hearing 4 1 officer’s report entered on January 28, 2015, alleging that the hearing officer’s child 2 support recommendation was “biased, lack[ed] support in the record, and should not 3 be accepted as an order” of the district court [RP 148-53]. Thus, it is clear that 4 Petitioner’s objections were not to a final judgment of the district court, but rather to 5 the hearing officer’s report. See NMSA 1978, § 40-4B-8(B) (1993) (stating that 6 “[w]ithin ten days after being served with notice of the filing of the [hearing officer’s] 7 report, any party may file written objections with the district court”). Notably, 8 Petitioner does not address Section 40-4B-8(B) in his memorandum in opposition, nor 9 has he provided this Court with any authority to support his contention that objections 10 offered under that particular section are to be considered the same as a motion to 11 reconsider. Therefore, we are not convinced that the March 25, 2015, motion was a 12 second motion to reconsider, despite its title. See Curry v. Great Nw. Ins. Co., 201413 NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an 14 argument, we may assume no such authority exists.”). 15 {7} As noted above, it does not appear that the district court has ruled on 16 Petitioner’s motion. Therefore, we hold that because Petitioner “filed a post-judgment 17 motion that attacked the district court order . . . that could alter, amend, or moot the 18 order entered by the district court[,]” the filing of the motion rendered the order non19 final. Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222 5 1 P.3d 675. Consequently, we conclude that the appeal is premature and must be 2 dismissed for lack of a final order. 3 {8} For these reasons, and those in our calendar notice, we dismiss. 4 {9} IT IS SO ORDERED. 5 6 J. MILES HANISEE, Judge 7 WE CONCUR: 8 9 MICHAEL E. VIGIL, Chief Judge 10 11 TIMOTHY L. GARCIA, Judge 6

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