Chavez v. Chavez

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 GERALD CHAVEZ, 3 Petitioner-Appellant, 4 v. No. 35,794 5 ANDREA CHAVEZ 6 Respondent-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Debra Ramirez, District Judge 9 Gerald Chavez 10 Albuquerque, NM 11 Pro se Appellant 12 Cordell & Cordell 13 Karin L. Henson 14 Albuquerque, NM 15 for Appellee 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 {1} Appellant, Gerald Chavez, appeals from an order of the district court extending 19 an order of protection and modifying a child custody agreement. We issued a notice 1 of proposed summary disposition proposing to affirm. Appellant has responded with 2 a timely memorandum in opposition, which we have duly considered. Because we 3 remain unpersuaded that our initial proposed disposition was incorrect, we affirm the 4 district court. 5 {2} Appellant continues to argue that the district court’s order extending a 6 restraining order was based on lies told by Respondent and her witness. [MIO 2] This 7 is an argument that the witnesses were not credible. However, as we stated in our 8 notice of proposed summary disposition, as an appellate court we “cannot substitute 9 our judgment of the facts for that of the trial court since only the trier of facts may 10 weigh the evidence, determine the credibility of witnesses, reconcile inconsistent or 11 contradictory statements of witnesses, and decide where the truth lies.” Lewis v. 12 Bloom, 1981-NMSC-051 , ¶ 4, 96 N.M. 63 , 628 P.2d 308 . We therefore reject this as 13 a basis to reverse the district court. See Williams v. Williams, 1989-NMCA-072 , ¶ 7, [14] 109 N.M. 92 , 781 P.2d 1170 (explaining that the duty to weigh the credibility of 15 witnesses and to resolve conflicts in the evidence lies with the trial court, not the 16 appellate court). 17 {3} Appellant also challenges the district court’s order modifying his visitation 18 schedule with his minor children. [MIO 1-3] Modification of custody arrangements 19 is a matter entrusted to the sound discretion of the district court. See Jeantete v. [2] 1 Jeantete, 1990-NMCA-138 , 111 N.M. 417 , 806 P.2d 66 . “A court may modify a 2 custody order only upon a showing of a substantial change in circumstances since the 3 prior order that affects the best interests of the children.” Thomas v. Thomas, 1999- 4 NMCA-135, ¶ 10, 128 N.M. 177 , 991 P.2d 7 ; see also NMSA 1978, § 40-4-7(G) 5 (1997) (stating that the district court may modify a custody order “whenever 6 circumstances render such change proper”). “[T]o be a proper exercise of the trial 7 judge’s broad discretion in this area, the record must contain substantial evidence 8 supporting the required finding that the modification furthers the best interests of the 9 child.” Jeantete, 1990-NMCA-138 , ¶ 7. 10 {4} In our notice of proposed summary disposition, we noted that Appellant had not 11 provided a complete recitation of the evidence and testimony below in support of the 12 district court’s ruling. See Rule 12-208(D)(3) NMRA (providing that docketing 13 statements must contain “a concise, accurate statement of the case summarizing all 14 facts material to a consideration of the issues presented”). The record indicates that 15 the district court conducted a hearing on the motion for modification of the child 16 custody agreement and the petition for order of protection from domestic abuse. [RP 17 238] The record also contains an exhibit list which indicates that documentary 18 evidence was introduced at the hearing including text messages, a police report, a plea 19 agreement, a letter from a therapist, a letter from the Children, Youth and Families [3] 1 Department, and social media postings. [RP 236] 2 {5} In his memorandum in opposition, Appellant has responded that Respondent 3 created an internet account in his name, which she used to fabricate evidence 4 purporting to show that Appellant threatened her. [MIO 1-2] However, this assertion 5 is not a complete statement of the testimony at the hearing or a summary of the 6 contents of the documentary evidence. Without a complete picture of the evidence 7 introduced below, we cannot engage in meaningful appellate review of the district 8 court’s modification of the child custody arrangement. See State v. Chamberlain, [9] 1989-NMCA-082 , ¶ 11, 109 N.M. 173 , 783 P.2d 483 (stating that where an appellant 10 fails “to provide us with a summary of all the facts material to consideration of [his 11 or her] issue, as required by [Rule 12-208(D)(3)], we cannot grant relief on [that] 12 ground”); see also Mayeux v. Winder, 2006-NMCA-028, ¶ 27 , 139 N.M. 235 , 131 13 P.3d 85 (noting that the appellant bears the burden of clearly demonstrating how the 14 trial court erred). Accordingly, we affirm the district court’s order modifying the child 15 custody agreement. See Michaluk v. Burke, 1987-NMCA-044 , ¶ 25, 105 N.M. 670 , [16] 735 P.2d 1176 .(“Where the record on appeal is incomplete, the ruling of the trial court 17 is presumed to be supported by the evidence.”). 18 {6} Finally, Appellant has attached documents that were not introduced in district 19 court and asks this Court to consider them. Appellant also refers to voice recordings [4] 1 he made of Respondent’s witness that were not put in evidence below. [MIO 1] 2 However, we do not consider matters not of record. See Campos Enters., Inc. v. Edwin 3 K. Williams & Co., 1998-NMCA-131, ¶ 12 , 125 N.M. 691 , 964 P.2d 855 (holding that 4 we review only matters that were presented to the district court); see also In re 5 Mokiligon, 2005-NMCA-021, ¶ 7 , 137 N.M. 22 , 106 P.3d 584 (“[T]his Court will not 6 consider and counsel should not refer to matters not of record in their briefs." (internal 7 quotation marks and citation omitted)); id. (“[I]t is improper to attach to a brief 8 documents which are not part of the record on appeal.” (internal quotation marks and 9 citation omitted)). 10 {7} For these reasons and those set forth in our notice of proposed summary 11 disposition, we affirm the district court. 12 {8} IT IS SO ORDERED. 13 ___________________________________ 14 TIMOTHY L. GARCIA, Judge 15 WE CONCUR: 16 ___________________________________ 17 M. MONICA ZAMORA, Judge 18 ___________________________________ 19 HENRY M. BOHNHOFF, Judge