FAMILY LAW WEBSITE DISCLAIMER
INTRODUCTION TO WEBSITE
INTRODUCTION TO DIVORCE TRACK
PHASE I - PRE-FILING ANALYSIS
- Case Management Planning
- Divorce Process Flowchart
- NM Marriage
- Divorce Jurisdiction
- Pre-Marital Agreements
- Community and Separate Property
- Community and Separate Debt
- Child Custody and Time-Sharing Dispute Determinations
- Child Support
- Interim Division of Income and Debt
- Collaborative Law
A. Identification of Legal Issues and Operative Fact
B. Selection of Dispute Resolution Process
C. Components of a Case Management Plan
B. Time-Sharing (Visitation) Adjudication
C. Permanency of Custody and Time-Sharing Adjudication
D. Standards for Child Custody Awards
E. The Court Clinic
F. Guardians Ad Litem
G. Private Child Custody Evaluations
H. “Wise persons”
PHASE II – FILING, SERVICE OF PROCESS AND DEFAULT JUDGMENT
PHASE III - RESPONSIVE PLEADING
PHASE IV - DISCOVERY AND PRE-TRIAL MOTIONS
PHASE V - TRIALS ON THE MERITS
PHASE VI – APPEAL
PHASE VII – POST-JUDGMENT PROCEEDINGS
The information on the Family Law Website is presented for informational and
educational purposes only. It is not offered as and does not constitute legal
advice, legal opinion, nor does it represent the opinions or policies of the
Family Court’s four (4) District Judges, the Domestic Violence Commissioners or
the Child Support Hearing Officers. Although this Website will be periodically
revised, no promise or warranty of any kind is made to any users that the
information is correct, complete or the most current information available. No
inference should be drawn that the information, practices and procedures
presented are the same or similar in the other twelve judicial districts in New
Mexico or in other states. Users should, therefore, contact qualified legal
counsel in the judicial district or State in which any pending case was filed
or is to be filed.
ALL SPECIFIC QUESTIONS ABOUT THE LAW AND YOUR RIGHTS AND OBLIGATIONS SHOULD BE SUBMITTED TO LEGAL COUNSEL HIRED
BY YOU AND PROVIDED WITH THE DETAILS OF YOUR SPECIFIC FACTUAL CIRCUMSTANCE. THE
LINKS TO OTHER WEBSITES DO NOT CONSTITUTE AN ENDORSEMENT OR SPONSORSHIP OF
THOSE WEBSITES, THEIR PRODUCTS, THEIR SERVICES OR INFORMATION THAT MAY BE
It is important at the outset that self-represented persons
recognize that they are required to follow the same rules of procedure and
evidence as a party represented by a lawyer. It is the responsibility of every
litigant, including self-represented parties, to determine what needs to be
done and to take the necessary action.
Core Family Law Website CommitteeHon. Ernesto J. Romero
District Judge, Div. XI
Family Law Website Manager
Twila B. Larkin, Esquire
Sutin, Thayer & Browne P.C.
Family Law Website Editor
William J. Morgan, Esquire
Fox & Wolf P.C.
Family Law Website Forms Manager
Richard D. Stoops, Esquire
Judicial PersonnelLouise Kodituwakku, Ph.D.
Director, Court Clinic
Judicial District Court
Terry Ginsberg, M.A., L.P.C.C.
Court Clinic Clinician II
Judicial District Court
Ms. Tina Sibbits, Esquire
Director, Pro Se Division
Judicial District Court
David Levin, Esquire
Director, Court Alternatives
2nd Judicial District Court
Reed Shepherd, Esquire
Domestic Violence Commissioner
2nd Judicial District Court
Family Law PractitionersCarol E. Garner, Esquire
Tammi M. Lambert, Esquire
Elizabeth E. Whitefield, Esquire
Keleher & McLeod P.A.
The Family Law website represents an effort by the Domestic Relations Division (DR) – The Family Court -- to better
serve its constituency. It is a joint effort of the Bench, the Bar and the
Court’s mental health professionals and a recognition that the digital age has
arrived at Family Court.
This website is intended to fill the need for a readily accessible public platform for the dissemination of information useful to lawyers, professionals from other disciplines who practice in the Family Court, to those of the general public who have an interest in the work of the Family Court and, perhaps most importantly, to self-represented persons.
The most recent report of the Court’s Pro Se Division documents a meteoric rise in the demand for family law services by self-represented persons in Family Court. That demand more than doubled in the last four (4) years. By the most recent count, family law cases comprised 87% of the cases in which the Pro Se Division rendered services this past fiscal year.
Of signal importance is that this website not only foster a better understanding of family law but that it facilitates a better understanding of alternative dispute resolution, [“hereinafter ADR”]. ADR is more often than not, a less expensive and quicker way to resolve family law disputes than trials on the merits. The notion that trials are the best way to resolve divorce cases is under increasing attack. Acrimonious confrontations in the courtroom exact two (2) categories of “costs” from parents and their children. The first is the time and money it takes to resolve disputes by trial and the second is the emotional trauma and scarring which can result from acrimonious litigation which the experts believe can have adverse effects upon the children.
The information on this Website is organized into the six (6) “litigation tracks” upon which the six (6) categories of cases in the Family Court “run”. Under each type of proceeding three (3) components are presented:
(1) explanatory text;
(2) chronological process flowchart and
(3) downloadable forms or links to where useful forms may be found.
The Supreme Court has approved some, but not all, necessary family law forms which are linked to this website in downloadable format in the Forms component of the Family Law Library at this website. Other forms, which have not been approved by the Supreme Court are referenced at the Family Law Library and are available in downloadable format at the Albuquerque Bar Association website listed under “USEFUL LINKS”. A deliberate effort has been made to reference useful forms in the explanatory text to better convey where they “fit” in the litigation process.
The six (6) categories of Family Court cases are:
- Dissolution of Marriage (Divorce)
- Legal Separation
- Domestic Violence
- Miscellaneous Proceedings
(a) NM Child Support Enforcement Division, (CSED), child support collection
(b) Grandparent Visitation Rights
(c) Kinship Guardianship
(d) Interstate Family Support
The Family Law Website project is not without critics, amongst whom are those of the active Bar who believe that by putting analytical legal information into the public domain; we invade an exclusive “legal preserve”. Yet others, recognizing the inherent power of information, proclaim that self represented persons will misuse the information by engaging in acrimonious, unproductive litigation. In the last analysis, however, perhaps that is the primary function of judges- to separate the productive from the destructive and to proceed accordingly.
Your comments, suggestions, and criticism are encouraged.
Hon. Ernesto J. Romero
District Court Judge
April 2, 2004
Before filing a divorce case it is wise to identify, think through, and analyze issues that will or may arise and assess how the Court is likely to resolve those issues. The best primer for an understanding divorce procedure is to read and study the Domestic Relations Clerk’s Manuel, available in downloadable PDF format at the Website link listed under the USEFUL LINKS component of this Website.
This portion of the Family Law Website is intended to help users understand applicable divorce aw and procedure for identification of recurring issues and to assist users to understand, anticipate and prepare in advance for significant litigation events in the sequence in which they occur during the various distinct “phases” of the divorce process.
- Identify and clearly articulate the legal issues likely
to arise in the case. For example, is a dispute anticipated over the
classification of property, (community, separate or ”mixed”), alimony, or
custody of minor children?
- Identify the facts that bear
directly upon the legal issues and create a plan for how to get those facts and
to present them for consideration at the moment of decision. Identify the
elements of proof or in other words, what must be proven as to each claim or
defense. This is a matter of legal research. For example, what must be proved
to obtain an award of alimony? (See Section 40-4-7, NMSA ’78 Comp. and
- Determine whether the Court has jurisdiction or the authority to decide the case.
- Binding Arbitration
- Mediation and
(i). Discovery Plan
Ask what documents to prove the case are in my possession or control and what can the opposing party provide in the way of documents and evidence? Set a timeline for assembling documents, which will or may have evidentiary value. Ask what facts and documents are in the possession of non-party third persons or entities? Make a list of such third parties and the documents and evidence each can produce. Sequence discovery in chronological time and invoke the opposing party’s duty to supplement discovery. See Rule 1-026 E, NMRA and Lewis vs. Sampson, 131 NM 317, 35 P. 3d 972 (Sup. Ct. 2001). Propound written interrogatories, (questions), to the opposing party as soon as possible asking the identity of all witnesses who will or may be called to testify and the anticipated testimony of each witness identified.
(ii). Document Management Plan
A document management plan is necessary so that documents that will or may become useful as evidence are not misplaced when needed. A document management plan can be as simple as putting documents which have or may have evidentiary value in a notebook binder with a cover page, described as an “exhibit grid” which succinctly identifies what the document is by entry in the appropriate box in the grid, or as sophisticated as a digitally scanned computerized repository of documents. An “exhibit grid” used in divorce trials in Division XI is available in the Family Law Library, “Forms” component of this Website in downloadable format.
(iii). Pre-Trial Motion Plan
Plan how pre-trial motions will be used and the sequence in which they will be filed. Here are examples of frequently used pre-trial motions, which may be included in the “Pre-Trial Motions” component of a case management plan in a divorce case:
(a) Motion for Interim Division of Income and Debt. See Rule 1-122, NMRA. The purpose of this Motion is to obtain a court order to share income earned by either party during the interim between the filing of the divorce and the entry of the Final Decree. This motion also serves to invoke the duty to pay child support for minor children and to allocate funds for the payment of community debts during the pendency of a divorce case. All income between the filing of a divorce case and the entry of a Final Decree is presumed to be community income in which each party has an equal interest.
(b) Motion for Pretrial scheduling conference. See Rule 1-016, NMRA. The purpose of this motion is to invoke the court’s authority to convene a conference, which the parties or their attorneys are required to attend and at which the court enters a Pre-Trial Scheduling Order, which imposes deadlines for case preparation. In some divisions of the Family Court, in addition to establishing case preparation deadlines, the case may be sent to settlement facilitation under the procedures specified in LR 2-602.
(c)Motion for Court Clinic Referral Order. The purpose of this Motion is to begin the process for the resolution of custody and time-sharing disputes in a divorce case at the beginning of the case, as opposed to the end of a case. Second Judicial District Court Rule LR 2-504 B requires the petitioner within thirty (30) days of service of a Petition for Dissolution in which custody and timesharing issues exist, to present the Court with a Court Clinic referral order for mediation and if necessary for an Advisory Consultation.
(d) Motion for the Advance of Attorney fees and costs. See Section 40-4-7, NMSA ’78 Comp. The purpose of this motion is to invoke the court’s authority to enter an order for the advance community funds for the payment of attorneys fees to enable both parties to have adequate legal representation.
(iv). Case Preparation Measurement
Commence preparation of the Requested Findings of Fact and Conclusions of Law, (see Rule 1-052, NMRA) before filing the case as a device by which to measure case progress and preparation. Review and edit the Requested Findings of Fact and Conclusions of Law on a regular basis.
Examples of enforcement modification issues Modification of child support Modification of custody or time-sharing Enforcement of Support or other obligation from judgment
- the duty of respect
- the duty of loyalty
- the duty of support and
- the duty of fidelity.
A frequent question is whether NM recognizes “common law marriage”. The short answer is “no”, if the cohabitation occurred in NM. The answer could be “yes”, however, if the cohabitation complied with the requirements for a common law marriage in a state which recognizes the validity of “common law” marriage. Living together will not create a legal marriage in NM. However, if a common law marriage is created by living in a conjugal relationship with a member of the opposite sex outside NM; our courts will recognize the common law marriage as a valid marriage.
For example, where a NM couple moved to Texas, agreed between themselves to marriage, held themselves out as husband and wife, lived with one another and subsequently returned to NM; the court will recognize a valid common law marriage.
In NM marriage is a civil contract in which the public has an interest and to which the State claims status as a party. A marriage license is required. The age of consent to marry is 18. A person under age 18, but not less than 16 years of age, is permitted to marry with the consent of parents or guardian. Incestuous marriages are prohibited and void.
(1) Hagan v. Hardwick 95 N.M. 517, 624 P.2d 26 (1981).
(2) NM Uniform Child Custody Jurisdiction and Enforcement Act:
- Home state priority § 40-10A-201(a)(1)
- Significant connection §40-10A-201(a)(2)
- Other courts decline §40-10A-201(a)(3)
- No other state has jurisdiction §40-10A-201(a)(4)
- Modification jurisdiction §40-10A-203
- Temporary emergency jurisdiction §40-10A-204
- Inconvenient forum §40-10A-207
- Jurisdiction declined for conduct §40-10A-208
(4) Continuing exclusive jurisdiction §40-6A-205
(5) Modification jurisdiction §40-6A-611
(6) Personal service of process outside state.§38-1-16B(5)(N.M. “long arm” statute)
(7) Uniform Interstate Family Support Act §40-6A-201
“Jurisdiction” means the authority of the court to decide a case and has three (3) distinct dimensions in divorce cases:
- Jurisdiction over the parties
- Jurisdiction over the subject matter and
- Jurisdiction over minor children.
If the marital partners never resided as husband and wife in NM, but one of the marital partners satisfies the six (6) month residency requirement; the court has the authority to grant a divorce but does not have jurisdiction to divide property in another state, or impose support obligations. See Section 38-1-16 B (5), NMSA 1978 Comp. (1971). If, however, the parties lived in NM as husband and wife, and one of the marital partners left the state; the Court has jurisdiction over the divorce and may divide property and impose support obligations.
Jurisdiction over minor children is determined by reference to the NM Uniform Child Custody Jurisdiction and Enforcement Act, Sections 40-10A-101 through 40-10A-403, NMSA ’78 Comp.(2001). There is no substitute for reading the statute carefully because very few generalities can be drawn from it. With that caveat, here are a few generalizations: If the child or children have not lived in New Mexico for at least six months prior to the filing of the divorce petition; the Court may not have jurisdiction to decide custody and time-sharing disputes. N.M. is without the authority, generally, to make initial custody adjudication unless New Mexico is the “home state” of the children.
- Real estate
- Household goods, tools and art objects
- Checking accounts, savings accounts and certificates of deposit
- Employer provided civilian pensions, both public and private sector
- Private purchased civilian pensions, such as annuities
- Active duty, reserve and national guard military pensions,
- 401 (k) retirement accounts, stock options,
- Investment accounts, stocks, bonds
- Automobiles and other motor vehicles
- Accrued sick leave and vacation pay
- Property acquired before marriage
- Property acquired by inheritance
- Property acquired after marriage by agreement of the parties
- Property acquired by gift.
Section 40-4-7, NMSA Continuing Jurisdiction over Custody
Section 40-4-9.1, NMSA Joint Custody
Section 40-4-9, NMSA Standards for Custody Awards
Section 40-12-1 to 40-12-6, NMSA Domestic Relations Mediation
(ii) Joint Legal Custody - “Joint custody” is a creature of statute and is distinct from the concept of physical custody, or where the child will live. In New Mexico decision-making authority may be awarded to both parents by an award of joint custody, which is created, defined and governed by statute. See Section 40-4-9.1, NMSA, (1991). When joint legal custody is awarded, the statute requires the parties to create a written Parenting Plan which, amongst other things, defines the childrens’status quo or “baseline” at the time of the adjudication with regard to the child’s city of residence, schools, medical care, religion, etc. When joint custody is awarded neither parent may make a unilateral change in the child’s status as set forth in the Parenting Plan. See Domestic Relations Form 4A-313. An award of “Joint custody” does not mean that children will spend equal time with both parents, rather it represents an award to both parents of the right to participate in major life decisions which affect a child during minority, regardless of with which parent the child resides.
When child abuse, drug or alcohol abuse or domestic violence is alleged or established the court has the option of ordering that a non-custodial parent’s time-sharing or visitation be supervised for the protection of the child or children, which is always the foremost concern of the court. Supervised visitation may be ordered to occur under the supervision of specified persons, such as family members, or through agencies such as The Neutral Corner or APN, which supervise visitations between parents and children for a fee. Links to the Websites to those agencies are provided under the USEFUL LINKS component of this Website.
At any time during the child’s minority, upon a showing of a “material change” from the last adjudication of custody; the court may modify custody. See the appellate decisions annotated under Section 40-4-7, NMSA ’78 Comp. The Court may lose custody jurisdiction of a minor child, however, when a child’s place of residence is moved to another state during the child’s minority under circumstances where the foreign state then acquires jurisdiction over the child’s custody.
- the wishes of the child's parent or parents as to his custody;
- the wishes of the child as to his custodian;
- the interaction and interrelationship of the child with his parents, his siblings and any other person who may significantly affect the child's best interest;
- the child's adjustment to his home, school and community; and
- the mental and physical health of all individuals involved.
The Court will consider numerous evidentiary factors in making custody awards, amongst which are: the child’s age, which parent is the historical primary caregiver, which parent is more likely to allow frequent and meaningful contact with the other parent; the presence or absence of domestic violence; drug and alcohol abuse; criminal records and the influence of other persons significant to a parent who will play a part in the child’s post-divorce life. The foremost consideration, however, is the safety and health (physical and mental) of the child.
The Family Court is fortunate to have a Court Clinic currently comprised of fourteen (14) mental health professions trained in child custody and time-sharing mediation. The Court Clinic is established pursuant to and in conformity with the Domestic Relations Mediation Act and in conformity with the Act’s definitions. The Clinic provides services to parents who have been ordered to Court Clinic Services. Normally, parents who are unable to agree upon custody or time-sharing arrangements for a child are ordered to mediation and if necessary for an Advisory Consultation through the Court Clinic. Second Judicial District Local Rule-504 B contains a mandatory referral provision for all disputes regarding children, except child support, and states:
Unless otherwise ordered by the court upon stipulation of the parties or for good cause shown, in every case involving a dispute over any child-related issue except child support the court shall enter an order referring the parties to the court clinic for non-confidential mediation. In the alternative or in addition to an order for mediation, the court may order that the parties submit to other court clinic services including but not limited to advisory consultation, priority consultation, evaluation and decision-making…[emphasis added].
LR 2-504 C requires petitioner within thirty (30) days of the date the Petition is served to submit an Order for Court Clinic Referral in the form set forth in Local Form T, to the Court for entry. The Court Clinic Referral Orders normally require mediation and if necessary for an Advisory Consultation.
LR 2-504 authorizes the assigned judge to approve a stipulation between the parties not to enter a Court Clinic Referral Order. Normally, the court will approve a stipulation between the parties to “opt out” of the Court Clinic process only when they agree to hire and pay for at their own expense, a private custody evaluation by a mutually acceptable mental health professional. See Rule 11-706, NMRA.
Before beginning Court Clinic process, each parent is required to attend a Court Clinic Orientation. The Orientation provides information about the Court Clinic and the developmental needs of children. Court Clinic Orientation is open to the public and is conducted every Monday at 3 p.m. at the Court Clinic Offices on the 2nd floor of the Courthouse.
(i) COURT CLINIC MEDIATION
Court Clinic mediation is a process in which the parties meet with an assigned Clinician at an appointed time to attempt a negotiated settlement of disputed custody and time-sharing issues. The assigned Court Clinician serves as a mediator or neutral third party and may make suggestions consistent with the children’s developmental needs, but has no authority to tell parents how to resolve the issues. The Clinician mediator has no authority to resolve or to facilitate the mediation of financial issues, property settlements, or child support. Attorneys are not allowed to participate in Court Clinic Mediation, however, any agreements reached are subject to the approval of counsel for the parties, if any.
Clinic mediation requires that all parties feel equally empowered to have input into the process. This prevents one parent from agreeing to custody or time-sharing plan because he or she feels intimidated by the other parent. The only people involved in mediation are those specifically named as parties in the Court Order (parents, grandparents, step-parents, etc.). Therefore, extended family members will not be involved in the mediation unless there is agreement between the named parties for this to occur. Parties are encouraged to discuss potential agreements with stepparents or significant others prior to the final Mediated Agreement being written. Children are not typically brought into the mediation process. Occasionally, a child may be interviewed by agreement of both parties and at the discretion of the Clinician.
Clinic mediation may be completed in one session or may require other sessions (maximum of four) as the parties work towards an agreement. Parties may try several plans before they agree to a final Mediated Agreement. Parties may reach a full agreement, a temporary agreement that allows time to try a time-sharing plan, or partial agreement that sets a specific date to return for additional mediation. The Court Clinic will not endorse a plan that is not consistent with the developmental needs of the children, even if the parties agree to it. The Court Clinic has an obligation to be the advocate for the child and not for either party.
The only documentation that will be issued following the mediation process is the Parenting Plan, which reflects the parties’ agreements, if any. If an agreement is reached through Clinic mediation, a copy of the agreement goes to each party and to their attorneys, if any. After the plan has been reviewed and confirmed by both parties, the Court Clinic will present the mediated agreement to the Court for entry. Each party, however, is entitled to make objections, within specified time limits to the Clinic’s recitation of the mediated agreement, upon which the Court rules.
Once the mediated plan becomes a Court Order; the parties are required follow it and are not entitled to return to the Court Clinic for additional services should further disputes develop. To do so, requires a new order to return to the Court Clinic for additional services. Parties should be aware that mediation is a confidential process, unless a Waiver has been signed. If the Waiver is signed, any information gathered during mediation may be used in the assessment process, should that become necessary. However, the Court Clinic records are confidential and will not be released to anyone without written permission from the parties or an Order of the Court.
If allegations of child abuse are made by one parent against the other, the child abuse allegations will be referred to Children, Youth, and Families Department [hereinafter “CYFD]. The Clinic has no authority and does not conduct abuse or neglect investigations; however, CYFD and the Clinic share information to ensure the best interest of the children are served. Where there are domestic violence issues between parents mediating at the Court Clinic, special procedures apply.
(ii) COURT CLINIC TIME-SHARING GUIDELINES
The Court Clinic uses a child development model in making time-sharing recommendations, or otherwise stated time-sharing policies based upon the neurological and psychological requirements of a child’s chronological age capacities as opposed to what parents may want or demand as to the time they would like to spend with a child. . Prior to Clinic mediation it is a good idea for a parent to know what the Court Clinic’s developmentally based time-sharing guidelines are because absent exceptional circumstances, negotiating against their application is unrealistic.
The Court Clinic’s time-sharing guidelines are based upon the needs of the children, not the needs of the parents, or what the parents want. The Court Clinic time-sharing guidelines are:
INFANTS - 0 TO 6 MONTHS
Developmental Task - To establish trust that basic needs, such as food, nurturing, will be available.
Characteristics of this Stage - Child is dependent upon others. Child cries to get needs met. Child cannot purposely disobey or willfully misbehave. Mood can change quickly from happy to sad. Child often reflects the caregiver’s level of stress.
Signs of Stress - Excessive crying, problems with eating and/or sleeping.
Child’s Needs - Child needs consistent responding from caregivers and a predictable schedule to satisfy basic needs. Child responds to being held and loved consistently.
Time-Sharing Schedule - One primary home; no overnights away from primary caregiver. If conflict is low, frequent short visits at least three times a week with the non-primary parent.
Long Distance Time-Sharing - Non-primary parent must go to the child as often as possible.
INFANTS - 6 TO 18 MONTHS OF AGE
Development Task - To establish an attachment bond with at least one caregiver.
Characteristic of the Stage - 6 - 9 months, child normally shows separation/stranger anxiety (a healthy sign of attachment). Children who go with strangers are at risk for being hurt by them. Child may show distress when leaving primary caregiver to go with any other person (INCLUDING the other loving parent). Child often takes cue from the primary parent as to how to react.
Signs of Stress - Crying, clinginess, fear of separation, tantrums, and eating/sleeping problems.
Child Needs - Consistency with no long separations from caregiver in a predictable/safe environment.
Time-Sharing Schedule - One primary home and regular time (several times a week) with the other parent, returning to the primary home at night. If the child knows the other parent and has spent regular periods of time with him/her, the child can begin to spend longer periods of time away from the primary home. The child’s behavior should be monitored to determine adjustment.
Long-Distance Time-Sharing Schedule - The non-primary parent should travel to see the child as often as possible. The caregiver should try to take the child to the other parent. If there has been a lot of involvement by the non-primary parent, the child may spend time similar to the one outlined above. If there has been little involvement, the schedule should be gradually increased to meet the child’s needs. The goal is to establish a positive relationship, not one marked by traumatic separations.
TODDLERS - 18 MONTHS TO 3 YEARS OF AGE
Developmental Task - Child is developing a sense of independence, autonomy, and a sense of self as separate and different from the parent.
Characteristics of this Stage - Child will test limits constantly, be uncooperative and self-centered at times while learning a sense of his/her own personal power and separateness.
Signs of Stress - More irritable than most children this age. Demonstrates anxiety, fears and worries as seen in the child’s behavior of being clingy, eating/sleeping problems and crying frequently. There may be regression to earlier behaviors, fear of separation and asking for the absent parent.
Child Needs - A predictable, consistent, and safe environment is critical. Clearly defined and enforced limits will help the child feel safe and secure.
Time-Sharing Schedule - After age 2, child may tolerate overnights if the non-primary parent has been an active and regular participant in the child’s life. The schedule should continue to be predictable with frequent contact with the non-primary parent to maintain a strong relationship.
Long-Distance Time-Sharing Schedule - Parents continue to have the responsibility to encourage and develop the parent-child relationship. Each case must be assessed to determine the child’s ability to tolerate change, and parent’s previous involvement/commitment to the child.
PRESCHOOLERS - 3 to 6 YEARS OF AGE
Developmental Task - To learn to take the initiative, gain some impulse control, interact and play cooperatively with peers, and to begin the socialization process.
Characteristics of the Stage - Focus is on social roles and mimicking adult behaviors. Stage may include nightmares, invented monsters/fantasies, and magical thinking (If I think it, it will happen), which create anxiety. There is acute sensitivity to parental conflicts, moods and feelings. Time perception is limited. Child benefits from frequent contact by phone/in person with absent parent.
Signs of Stress - Excessive fears/anxieties including fear of separation or abandonment. Blames self for adult actions (including the divorce). Shows regressive behaviors like thumb sucking, bed wetting, tantrums, clinginess, etc. Shows distress at transition times.
Child Needs - Reassurance with hugs, and words like “I love you, you’ll be OK, your mom and dad will make sure things are OK”. Child needs consistent and predictable routines with some advanced warning of changes in the routine. Calendars may be helpful in giving child visual cues.
Time-Sharing Schedule - Schedule should continue to be predictable/consistent. If a parent has been an active participant, overnights can be considered. The child’s behavior should be monitored for signs of stress when changes are made. The goal is to ensure the child’s comfort level.
Long-Distance Time-Sharing Schedules - Actual schedules will vary depending on the child’s temperament, parent’s ability to work together and focus on the child’s needs, and if there are older siblings. Generally, a preschooler who has a parent that has been actively involved and has a good bond with the child can tolerate short periods of time of a few days initially up to a few weeks by age 6. The child’s behavior should always be the key as to when to increase or decrease the time.
ELEMENTARY SCHOOL AGE CHILDREN - 6 TO 10 YEARS OF AGE
Developmental Task - To learn skills to be competent, industrious and productive. This age group is focused on school, outside activities and peer relationships.
Characteristics of this Stage - Child begins to think logically, take the perspective of others, and show true empathy, no longer being purely self-centered. Time perception is developed; child can maintain close relationships with a parent even with more extended time away. Child may express the desire for things to be fair even if it costs the child in areas of development.
Signs of Stress - Problems with school performance and/or peer relationships. With new empathy ability, child reacts strongly to parent’s pain. Child may act sad, angry, blaming, morally and righteously indignant; and avow loyalty to the parent that is perceived to need help.
Child Needs - Help with solving school/peer problems early in the stage. Give child reassurance with clear, understandable explanations. Remove child from parental disputes and/or from being a caretaker for a parent. Continue consistency in routines. Make allowances within the time-sharing schedule to let the child engage in outside activities and for friendships to develop.
Time-Sharing Schedule - Most appropriate schedule will depend on the child’s relationship with both parents, temperament, and developmental progress. This age can tolerate 50/50 time-sharing plans if both parents agree it is a good idea, have similar parenting styles, good communication, and live in close proximity so child can easily go to school and maintain friendships.
Long-Distance Time-Sharing Schedule -Varies depending on the child’s developmental needs, maturity, relationship with each parent, parent’s ability to communicate and commitment to make it work. Typically a plan will be limited to school holidays and summer. Parents must consider the child’s activities and need for time with friends in addition to time with each parent. Children may resent a parent they see as interfering with activities/friendships.
PRE-ADOLESCENCE - 11 to 12 YEARS OF AGE
Developmental Task -To gain a sense of control and comfort with peers and emerging sexuality.
Characteristics of this Stage - Child begins development of true abstract thinking and can think about hypothetical ideas. Child can now understand the real reasons for the divorce. Child can understand a variety of time-sharing schedules, without needing to directly experience them.
Signs of Stress - Development of intense loyalty conflicts. Acting prematurely adolescent, which retards true maturation. Depression, anxiety and school problems.
Child Needs - Flexible time-sharing so the child can develop friendships and outside activities.
Time-Sharing Schedule - The parents must be aware of the child’s schedule and routine. While some can continue on the schedule for the elementary school child, others may need to move toward one primary home or longer periods of time between transitions.
Long-Distance Time-Sharing - Similar to elementary school children. Parents must consider issues involving the beginning of adolescence and importance of friends.
ADOLESCENCE - 13 TO 18 YEARS OF AGE
Developmental Task - To develop identities that are separate from the parents. To grow away from the family and prepare for adulthood.
Characteristics of this Stage - Adolescents normally pull away from family, physically, socially and emotionally to become independent. They resist family activities and challenge adult ideas.
Signs of Stress - Breaking rules, acting out, withdrawal, isolation, depression, abuse of alcohol/ drugs, suicide threats/attempts, and poor school performance. Loyalty and conflict, may lead to cutting off contact with one or both parents. Loyalty may change between the parents over time. May become pseudo mature and become the caregiver for a hurting parent.
Child Needs - Protection from loyalty conflicts. Consistency of rules between households. Timely professional attention to significant emotional problems.
Time-Sharing - Flexible schedule that shows respect for the adolescent’s needs first and the parent’s second. Usually adolescents prefer one home and flexible time-sharing.
Long-Distance Time-Sharing Schedule - Parents must focus on the needs of the adolescent. During this stage, even in intact families, the children move away from interacting as often with parents and are more focused on friends/activities. An adolescent who is forced to spend time away from the primary home where friends/activities are will resent the parents.
(iii) COURT CLINIC ADVISORY CONSULTATION
If mediation fails, the Clinic then proceeds to an “Advisory Consultation”. The Advisory Consultation [hereinafter “AC”] is initiated when the parties are unable to mediate an agreement, the issues are inappropriate for mediation, or the Judge so orders. It is an assessment process for the purpose of providing the parties and attorneys with recommendations concerning possible solutions to the dispute that meet the best interests of the children. The process may involve individual and/or joint interviews with the parties, observations of each parent with the children, interviews with the children, psychological testing of the parties, consultation with professionals who have been associated with the family (i.e. teachers, psychologists, daycare providers, etc.), home visits, background checks, etc. Significant others or other household members may also be interviewed and tested. The process will result in a report that may include background information, concerns of each person, information provided by collateral contacts, and recommendations to the Court for resolution of the disputed custody and time-sharing issues. The AC Report is provided to both attorneys and is not sent to the assigned Judge. Each party and his/her attorney may request to meet with the Clinician to review test results and discuss the rationale for the recommendations. If the parties agree with the recommendations, they must be entered as a Court Order to be enforceable. If the parties disagree with the recommendations, they may request a hearing with the Judge where the Clinician may be called to testify, or may stipulate to a second opinion by an evaluator outside the Court Clinic.
(iv) COURT CLINIC PRIORITY CONSULTATION
A Priority Consultation, [hereinafter “PC”] is a special process which occurs when a Judge, Special Commissioner or Hearing Officer determines that an emergency exists and immediate action must be taken in order to serve the best interest of the children until a more permanent plan can be determined. Immediately after the hearing, all parties and/or their attorneys must appear in person at the Clinic to schedule the appointments, pursuant to Local Rule 2-504 F. The PC is a time-limited process (typically four hours) that involves the parties meeting with a Clinician to determine the nature of the problem, interim custody and/or time-sharing only. Parents may negotiate a settlement.
If the parties do not agree, recommendations will be made which becomes the Order of the Court pending further action by the Court. The PC will not be used for long-term planning or to make critical decisions such as to whether a parent should be permitted to relocate to a different city and take the child.
(vi) THE SIGNIFICANCE OF PRIORITY CONSULTATION OR ADVISORY CONSULTATION
The Court is not bound to adopt all or any par of the Court Clinic’s Advisory Consultation recommendations, Priority Consultation recommendations or those of an 11-706 Custody Evaluator. Those recommendations, however, are adopted in the great majority of cases.
Either parent has the right to object to the Court Clinic’s Advisory or Priority Consultation recommendations. When this occurs the court considers the objections at an evidentiary hearing. If the objections are not sustained; the recommendations become the Court’s custody and time-sharing adjudication.
There is no consensus concerning what courts expect guardians ad litem to do; the process guardians ad litem are to follow in advocating a child’s best interest: or how the courts supervise the work of guardians ad litem and payment for their services.
Currently there are no requirements for certification or training of attorneys appointed to serve as guardians ad litem. Guardians ad litem are normally appointed in cases where the parents are acrimoniously conflicted and unable to communicate or cooperate in parenting their children, and the court perceives that the children need to be protected from being used as “weapons” by one parent against another.
There is legal authority to support the right of a party to question or to challenge an 11-706 expert’s fee.
The cost of private custody evaluations ranges can exceed $7,500.00.
Parties are free to stipulate to the appointment of a child psychologist as the court’s 11-706 expert rather than to proceed through the Court Clinic process. The psychologist undertakes a “custody evaluation” and makes recommendations regarding contested custody issues. When the parties agree, the court normally approves such stipulations. When the parties are unable to agree to the appointment of an 11-706 expert for custody evaluation; the court will normally require the parties to participate in the Court Clinic process. Courts are not bound to follow the recommendations of an 11-706 expert witness.
“11-706” experts differ from other expert witnesses in that an 11-706 expert appointed by the court is presumably “neutral”, as opposed to an expert hired by a party.
There are those in the legal community who are critical of private custody evaluations unless the psychologist is able to relate recommendations to scientifically validated and reliable testing protocols. There is legal authority that if challenged on that basis; the opinions of an 11-706 expert should not be admitted into evidence because they are nothing more than speculative opinion disguised as science.
- Alimony standards and elements §40-4-7(E), NMSA, ’78 Comp.
- Rehabilitative alimony §40-4-7(B)(1)(a)“
- Transitional alimony §40-4-7(B)(1)(b)“
- Indefinite duration §40-4-7(B)(1)(c)“
- Lump sum alimony; subject to death §40-4-7(B)(1)(d)“
- Lump sum alimony; no contingencies §40-4-7(B)(1)(e)“
Recently, an informal committee of family law lawyers completed a three (3) year study of alimony awards in the Second Judicial District and elsewhere, which culminated in the publication of unofficial alimony guidelines. The alimony guidelines are non-binding upon the court. They were produced to facilitate uniformity amongst the various division of the Family Court in fashioning spousal support awards and to assist litigants in the settlement of cases involving alimony issues. The Alimony Guidelines are available for $10.00 at the Domestic Relations Desk. The Supreme Court recently authorized a “pilot project” in the Second Judicial District of six (6) months duration to “field test” the Alimony Guidelines. The results should be compiled soon and will be made available on the Family Law “Bulletin Board” component of this Website.
- Child support guidelines §40-4-11.1, NMSA ’78 Comp.
- Medical, dental & counseling expenses § 40-4-11.1(I)(1)
- Educational expenses § 40-4-11.1(I)(2)
- Transportation & communication expenses § 40-4-11.1(I)(3)
- Child Support Enforcement Act § 40-4A-1 et seq.
- Uniform Parentage Act § 40-11-1 et seq.
- Family Violence Protection Act § 40-13-1 et seq.
Parents of children born in or out of wedlock or adopted are required to support their children.  Although the duty to provide support for minor children is now statutory, it originated from English common law, which imposed upon parents the obligation to support and educate their children.
Child support in NM is governed by statute  and is calculated based upon:
- the gross monthly incomes of both parents;
- number of children,
- the time each parent has responsibility for the child,
- the cost of medical, dental insurance premiums for the child,
- work-related day care expenses,
- the cost of private school tuition and any “special” needs a child may have. 
Courts in NM have no authority to retroactively modify or eliminate child support, which has accrued, except in very limited situations. For this reason, in the event a child support obligor becomes unemployed or suffers a substantial reduction in income; the child support obligor must file a Motion to Modify Child Support to invoke the court’s authority modify child support. A form of Motion to Modify Child Support can be found in the “Forms’ component of the Family Law Library. The statute of limitations within which delinquent child support may be collected is fourteen (14) years from the date the child support payment became payable, but may be less in certain cases. See Section 40-11-15, NMSA, 1978 Comp., (2004).
A failure to pay child support when ordered by the Court may be punished as a contempt of court for which a sentence of incarceration may be imposed and/or a civil penalty or the award of costs and attorneys fees incurred by the child support recipient in bringing a proceeding to collect child support. Failure to pay child support may also result in the loss of the obligor’s driver’s license, professional and hunting licenses and could result in the intercept ion of federal and state income tax refunds.
New Mexico public policy is to disfavor natural parents who do not acknowledge their responsibilities to their children. That policy is evident in various statutes. For example, the NM Support Enforcement Act  outlines provisions to collect child support, including the withholding of income and issuing liens against real and personal property. The NM Parental Responsibility Act provides that persons not in compliance with judgments and orders relating to paternity and child support may not obtain business, occupational, driver’s and other licenses and may have a current license suspended for non-compliance with an order to pay child support. The NM Human Services Department may issue liens against gambling winnings of a parent owing child support payments and the Probate Code prohibits a natural parent from inheriting through a child if that parent has not openly treated the child as the parent’s own and has refused to support the child.
A correct and completed child support worksheet must be attached to all orders that establish or modify child support. Both parties or their attorneys must sign the child support worksheet. Child support orders must also contain a provision for the annual exchange of financial information.
Parties contracting to resolve disputes by arbitration are bound by their agreement to arbitrate. The terms of an agreement to arbitrate define the scope of the arbitrator‘s jurisdiction, and control the conditions, limits and restrictions on the matters to be arbitrated. See Christmas v. Cimarron Realty Co., 98 N.M. 330, 648 P.2d 788 (1982). Spouses who agree to binding arbitration may agree upon the person or number of persons who will serve as arbitrators or request the court to appoint an arbitrator - for which the parties pay for themselves.
Once a party to arbitration receives notice of an award, the party normally files a Petition to Confirm Arbitration Award in order to make the arbitration award a court judgment. Upon hearing, the court issues a confirming order unless the award is modified. Once an arbitration award is made, the finality courts afford the arbitration process weighs heavily in favor of confirming the award. See for example Foster v. Turley, 808 F.2d 38, 42 (10th Cir. 1986). Courts exercise great caution when asked to set aside an arbitration award, because arbitration awards are the product of a theoretically informal, speedy and inexpensive process in lieu of judicial proceedings freely chosen by the parties. Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1147 (10th Cir.), cert. denied, 459 U.S. 838, 103 S. Ct. 84, 74 L. Ed. 2d 79 (1982). When parties dispute arbitration awards, courts normally resolve all doubts in favor of the arbitration award.
A District Court's review of an arbitration award is limited to statutory grounds. Thus, for example, a court will set aside an arbitration award if the court finds that the arbitration award is the product of fraud or corruption of the arbitrators or that the award included issues the parties did not agree to submit to arbitration. There is no de novo appeal. Judicial review of an arbitration award is narrow and limited because it is not the function of the court to hear the case de novo and reconsider evidence presented to the arbitrators.
Section 40-4-7.2, NMSA, ’78 Comp. (1999) in pertinent part provides a procedure for domestic relations arbitration as follows:
40-4-7.2. Binding arbitration option; procedure. (1999)
A. Parties to an action for divorce, separation, custody or time-sharing, child support, spousal support, marital property and debt division or attorney fees related to such matters, including any post-judgment proceeding, may stipulate to binding arbitration by a signed agreement that provides for an award with respect to one or more of the following issues:
- valuation and division of real and personal property;
- child support, custody, time-sharing or visitation;
- spousal support;
- costs, expenses and attorney fees;
- enforceability of prenuptial and post-nuptial agreements;
- determination and allocation of responsibility for debt as between the parties;
- any civil tort claims related to any of the foregoing; or
- other contested domestic relations matters.
Mediation is a process in which the parties meet with a neutral third party (a mediator) to discuss how to resolve their differences. The mediator is a guide to help the parties to communicate with one another and to problem-solve. A mediator has no authority to bind the parties to an agreement. Sometimes having a neutral mediator present helps move the discussion from an argument to a productive problem solving experience.
The two (2) basic types of mediation in the Family Court. The first is custody mediation through the Court Clinic and is a process in which the parties’ attorneys do not participate. However, each party may consult with an attorney during this type of mediation process. The second type of mediation used in divorce cases filed in the 2nd Judicial District is called “settlement facilitation” and differs from Court Clinic mediation in that all issues, including child custody and time-sharing, may be addressed by the mediator with the presence and participation of counsel for the parties. Settlement facilitation is governed by Local Rule 2-602 and may be requested by either party, with or without the concurrence of the opposing party at any time during the pendency of a case in Family Court. The court on its own may direct the parties to participate in settlement facilitation. Settlement facilitation may occur at any time after filing a Petition for Dissolution of Marriage. Some Family Court judges require that each case be referred to settlement facilitation before the case is set for trial on the merits.
When settlement facilitation is ordered the court directs the parties and their attorneys to attend a settlement facilitation conference scheduled, convened and conducted by the settlement facilitator. The facilitator assists the parties to realistically evaluate the strengths and weaknesses of their case and assesses risk at trial, for the purpose of prompting a reasonable settlement.
Mediation experts relate that the key to successful mediation is preparation. Not less than five (5) days before the settlement conference, the parties are required to provide the following information to the facilitator:
- the nature of the case;
- factual and legal issues involved;
- settlement offers previously exchanged;
- any other information that will help the facilitator and parties discuss settlement.
Facilitators can be retired or sitting Judges, attorneys, mental health professionals, accountants or other qualified persons. Usually, facilitators have several years of experience and are trained to conduct settlement conferences. The parties can expect their facilitator to be well prepared and familiar with their case and the relevant law. The facilitators may be selected by the parties or assigned by the Court.
 any negotiated agreement consummated by a failure to disclose the nature and extent of marital assets or as the result of overreaching may be set aside and rendered a nullity.
Public policy encourages settlement agreements and the courts have a duty to enforce them. See Esquibel vs. Brown Constr. Co., 85 NM 239, 360 P.2d 650, (1961), certeriori denied 85 NM 483, 513 P.2d 1265, (1971). Board of Educ. Vs. Dept of Public Educ., 1999-NMCA-156, 128 NM 398, 993 P.2d 112. A settlement agreement cannot be set aside if after settlement a party in retrospect considers the settlement terms in retrospect unwise. See for example, In re Tucci, 45 NM 133, 112 P.2d 515, 521, (1941). Unless the settlement was entered into as the result of (a) mutual mistake (b) fraud or (c) duress, the courts will not set the settlement aside or re-open it. See Frazier vs. Ray, 29 NM 121, 219 P.2d 492 and Wooley vs. Shell Petroleum Corp., 39 NM 256, 45 P.2d 927, and McKee vs. Woods 35 NM 168, 291 P.292. Marital Settlement Agreements are contracts. The court’s duty is to enforce marital settlement agreements and courts have no authority to set aside settlement agreements to assure “fairness” in the absence of fraud, breach of fiduciary duty or some other grounds for relief stated in Rule 1-060, NMRA.
A. FILING THE CASEThe initial “filing” of the case is a very significant litigation event because it triggers the opening of a case file; the assignment of a unique case number and the assignment of a District Court Judge  by the DR Clerk. The initial filing marks the commencement of the time within which a petitioner may disqualify the District Court Judge assigned.
A petitioner has ten (10) days from the date of filing within which to file a Peremptory Disqualification of District Judge or, in other words, to exercise the right to disqualify the assigned Judge without stating a reason. If the right to peremptorily excuse an assigned District Judge is not exercised within these time constraints, the opportunity to do so is lost.
The right to peremptorily disqualify an assigned judge within the ten (10) days from the initial filing may be lost, however, if the assigned judge acts or exercises his or her discretion in the case. An assigned judge, however, may be disqualified at any time “for cause” and an assigned judge may voluntarily “recuse” from hearing the case at any time without stating a reason. An “initial filing” can be distinguished from “filing” subsequent pleadings because all subsequent pleadings are placed or “docketed” by the Clerk in the court file and case number assigned upon the initial filing.
“Filing” a divorce case occurs when the party filing, (“petitioner”) hands an original and copies of a Petition for Dissolution of Marriage signed before a Notary Public, a Summons, an Information Sheet and a filing fee of $137.00 to the District Court Clerk (Domestic Relations Division). Once those documents are received, the Clerk will examine the Petition for Dissolution of Marriage to apply the Clerk’s checklist of standards. If the Petition meets the requirements, the Clerk will accept the Petition for filing open a case file, assign a case number, complete and issue a Temporary Domestic Order, unless waived by the parties, and assign the case to one of the four (4) Family Court Judges by random selection. The documents required to file a Petition for Dissolution of Marriage are:
Petition for Dissolution of Marriage
Summons Information Sheet
Check for Filing Fee; or, Application for Waiver of Filing fee and/or free process
Order for Free Process The Petition for Dissolution of Marriage
The NM Supreme Court has approved forms for each of the above pleadings, which are in downloadable format at the Family Law Library component of this Website. The Supreme Court has approved two different versions of the Petition for Dissolution of Marriage. Domestic Relations Form # 4A-301 is the appropriate form to use when the parties have no children and Domestic Relations Form # 4A-302 should be used when there are minor children born to or adopted by the divorcing parties.
B. SERVICE OR PROCESSOnce the Petition for Dissolution is filed and Summons is issued by the Clerk; the Petition, Summons and the Temporary Domestic Order must be served on the Respondent in the manner prescribed by Rule 1-004, NMRA. Service of these documents is called “service of process and the date of service is made is important because the respondent has thirty (30) days thereafter within which to file a Response, Counter-Petition or other responsive pleading. If the respondent fails to do so thirty (30) days from the date of service; petitioner may move the Court for the entry of default judgment.
Rule 1-004, NMRA provides three (3) ways in which the service of process may be accomplished. They are:
(1). Personal Service.“Personal service” means that endorsed copies of the Petition, Summons and Temporary Domestic Order are hand-delivered to the respondent. An individual who is over the age of 18, not a party or related to a party must accomplish personal service. A petitioner, therefore petitioner may not effect “personal service” in strict conformity with the rule.
“Personal service” may also be accomplished by handing the Petition, Summons and Temporary Domestic Order to a person who resides in respondent’s household who is 15 or more years of age, or in the absence of such the respondent by posting the papers in the “most conspicuous part” of respondent’s premises, followed by a mailing of the documents to the respondent at the address posted. If personal service is accomplished by “posting”, the petitioner or his/or her attorney, must then mail another set of the foregoing documents to the respondent at his or her address and then file a Certificate of Service, relating that the service by “posting” was followed by mailing the Petition, Summons and Temporary Domestic Order to respondent’s address by first-class mail with correct postage affixed.
(2). Mailing.Service may be accomplished by certified mail if the respondent accepts service by this method and acknowledge receipt of the Petition for Dissolution of Marriage; otherwise service by mail is not accepted. See Rule 1-004 E, NMRA. The forms required for consensual service by mail are set forth in Rule 1-004, NMRA.
(3). Service by Publication or “Constructive Service”.Service of Process by publication is governed by Rule 1-004 H and is authorized only when a respondent has or is intentionally concealing himself to avoid service or after a “due diligence search” to locate the respondent has been undertaken by or on behalf of petitioner to no avail. In either event, an affidavit swearing to the facts is must be presented to the DR Clerk with a request that the Clerk issue a Notice of Pendency of Suit in exact conformity with Rule 1-004. Once a Notice of Pendency of Suit is issued by the Clerk, petitioner or his or her counsel is then required to cause publication of the Notice of Pendency of Suit in a legal newspaper once each week for four (4) consecutive weeks, after which the newspaper publisher will issue an Affidavit of Publication, which petitioner then files with the Clerk as proof of service by publication.
(4). Requirement for filing Proof of Service.“Proof of Service” is accomplished in the case of personal service, by having the individual who made the service, complete and sign the reverse side of the original Summons and signing it before a notary public. Petitioner or his or her counsel is then required to file the completed “Return of Service” with the DR Clerk.
DEFAULT JUDGMENTIf the Respondent does not file a Response to the Petition within thirty (30) days from the date of service of process; Petitioner has the right to request the Court to issue a default judgment. To do this, petitioner must submit a form of Certificate as to the State of Record to the Domestic Relations Clerk for issuance. A reference to this form is available at the “Forms” component of the Family Law Library at this Website. Once signed by the Clerk, the document may be presented to the Court as an attestation as to the date the Petition for Dissolution of Marriage was filed and Summons issued; the date of service and that no Answer or response has been filed to the Petition has been filed. Petitioner must then prepare and sign before a Notary, and file an Affidavit of Military Service, which attests that respondent is not a member of the Armed Forces of the United States. Once filed, a petitioner may submit a form of Default Judgment to the Court for approval and signature. If the form of Default Judgment submitted contains provision for a division of property, debt, spousal support (alimony), child custody or child support; the Court may require an evidentiary hearing to take testimony to establish, for example, that the proposed custody award is in a child’s best interest.
RESPONSE TO THE PETITIONOnce the “respondent has been served with process; the respondent must file a responsive pleading to the Petition within thirty (30) days from the date of service, or face the prospect of a default judgment.
THE RESPONSIVE PLEADINGThe response must be in written form, conform to the case caption requirements of any pleading; be filed at the DR Clerk’s office and a copy mailed to the opposing party, or if represented to this or her attorney, whose address should be on the Summons. See Anatomy of a Petition for Dissolution at Track 1 for pleading caption requirements. The response should contain a response to each numbered paragraph in the Petition for Dissolution and state generally whether the allegations in the Petition for Dissolution are admitted or denied, or that respondent is without sufficient information to either admit or deny the petitioner’s allegations.
COUNTER-PETITIONS AS ACCEPTABLE RESPONSESThe response may also include a Counter-Petition, which is in effect a Counter-Claim, which affirmatively seeks relief on behalf of the respondent, which petitioner does not claim. Examples are a respondent-wife’s Counter-Petition for custody of children, spousal and interim support. If a Counterclaim is included, Petitioner is required to respond to the Counterclaim within thirty (30) days or face the prospect of a default judgment.
If a counter-petition is filed as a response, the respondent upon oath and before a notary public must sign it or the DR Clerk will not accept it for filing.
FORCING THE ASSIGNMENT OF A JUDGE OTHER THAN INITIALLY ASSIGNED UPON FILINGRule 1-088.1, NMRA allows a respondent to file a Notice of Peremptory Disqualification of District Judge no later than 10 days after the Petition or response is filed. If not timely filed, the right to disqualify the assigned judge is lost. In filing a Notice of Peremptory Election to Excuse District Judge, there is no requirement that any reason be stated for the disqualification. A Peremptory Disqualification of District Judge is available in the “Forms’ component of the Family Law Library. If a preemptory disqualification is timely filed, he Court Clerk’s office will randomly assign a replacement judge. The rules do not allow litigants to select the assigned judge.
PRE-TRIAL DISCOVERY“Pre-Trial Discovery” is the process authorized by the NM Rules of Civil Procedure by which a party may invoke specific procedures to obtain testimony, documents or objects from an opposing party, a non-party witness or a third-party entity.
The DISCOVERY “TOOLS” are:
- Depositions. Rules 1-030 and 1-032, NMRA
- Depositions upon written questions. Rule 1-031, NMRA
- Written Interrogatories, Rule 1-033, NMRA
- Requests for Production of Documents or Things and/or Entry upon land or property. Rule 1-034, NMRA.
- Physical and or mental exams. Rule 1-035, NMRA
- Requests for Admissions of Fact or Genuineness of Documents. Rule 1-036, NMRA
- Subpoenas. Rule 1-045, NMRA
CATEGORIES OF FACT AND EVIDENCE WHICH CAN BE DISCOVERED
- Information from parties.
- Information from witnesses.
- Books, documents and tangible things. (B.1)
- Identity and location of person having knowledge of any discoverable matter. (B.1)
- Insurance agreements. (B.3)
- Documents and tangible things prepared in anticipation of litigation or trial
by another party or their attorney with a required showing. (B.4)
- Prior statement made by the party-seeking discovery. (B.4)
- Prior statement made and by a non-party requested by that party. (B.4)
- Discovery of facts known and opinions held by experts
acquired or by developed in anticipation of litigation. (B.5). NOTE: Must
do interrogatories first and the Court "may order" further discovery.
- Non-witness experts facts and opinions but need exceptional circumstance. (B.6).
NOTE: Rule requires Court to have discovering party to pay "a fair portion of the
fees and expenses reasonably incurred by the other party in obtaining the facts and opinions from
- Counsel's communications to testifying experts. State ex. rel. State Highway Dept. vs.
Steinkraus, 76 NM 617, (1966).
SCOPE OF DISCOVERY.The scope of what is discoverable is set forth in Rule 1-026, NMRA. Discovery may include any matter, not privileged, relevant to the subject matter. Discovery need not be admissible if reasonably calculated to lead to discovery of admissible evidence, however, if the discovery seeks information which is “privileged” from disclosure, it may not be discoverable.
EVIDENTIARY PRIVILEGES AS A LIMIT TO DISCOVERYEvidentiary privileges arise from three (3) sources:
(1). New Mexico Rules of Evidence
(2). New Mexico Statues, and
(3). US Constitution.
Privileged materials are not discoverable if the privilege is asserted. The privilege must be claimed, however, or it is waived.
A. Evidentiary Privileges Under the NM Rules of EvidenceFollowing is a list of evidentiary privileges which can be asserted pursuant to the N.M. Rules of Evidence:
Rule 11-502, NMRA: A report required by law if the law provides for privilege.
Rule 11-503, NMRA: Lawyer-client privilege
Rule 11-504, NMRA: Physician Patient/Psychotherapist Patient No counselors or masters of social work under this rule. Must be medical physician, psychotherapist licensed to practice medicine, or licensed/certified psychologist.
Rule 11-505, NMRA: Husband and Wife
Rule 11-506, NMRA: Clergy
Rule 11-507, NMRA: Political Vote
Rule 11-508, NMRA: Trade Secrets
Rule 11-509, NMRA: Child and/or Parents communications to specific people under specific circumstances
Rule 11-510, NMRA: Identity of Informer
Rule 11-514, NMRA: New Media - Confidential Source
B. Evidentiary Privileges Arising from NM Statutes§ 38-6-6, NMSA, ’78 Comp: Accountants
§ 38-6-6, NMSA ’78 Comp: Attorneys
§ 38-6-6, NMSA, ’78 Comp: Husband and Wife
§ 66-7-213, NMSA ’78 Comp: Police Traffic Accident Reports
§ 61-9A-27, NMSA ’78 Comp: Podiatrists
§ 61-9-18, NMSA, ’78 Comp: Psychologists
§ 61-9A-27, NMSA ’78 Comp: Counselors and therapists, except in certain court hearings regarding children.
§ 61-31-34(A), NMSA, ’78 Comp. Social workers, except in certain court hearings regarding children. See State ex. rel. CYFD, 128 NM 813 where counselor permitted to testify as to child statements in child abuse case.
C. Evidentiary Privileges Arising from the U.S. ConstitutionU. S. Const. 5th Amendment. Privilege Against self-incrimination. Individuals have a right to refuse to answer questions, which may tend to incriminate them in criminal matters. See. Rainbow Baking Co. v. Apodaca, 88 NM 501 (Ct. App. 1975). However in custody proceedings (40-10A-310) or interstate family support action (40-6A-316) an adverse inference is permitted.
D. Limitations on Assertions of Evidentiary Privileges§40-10A-310: Cannot invoke the spousal or parent/child in custody proceedings brought under the Uniform Child Custody Jurisdiction and Enforcement Act, 40-10-1, et seq., NMSA, ’78 Comp. , or in §40-6A-310 Interstate Family Support Act §30-12-10 Wiretapping (Privilege Not Lost)
RELEVANCY AS A LIMIT TO DISCOVERY
- Very liberal for discovery purposes. United Nuclear Corp. v. General Atomic Co., 96 NM 155, 629 P.2d 231 (1980).
- Is not grounds for instructing a witness not to answer. Furniture World v. D.A.V. Thrift Stores, 168 F.R.D. 61 (D.N.M. 1996). (Federal Rules).
- Evidentiary standard of relevancy does not apply.
DEPOSITIONS (Rule 1-030, NMRA)Notice Requirements
- confer with opposing counsel and the deponent to schedule in good faith
- 10 day notice in writing
- if want documents
- Subpoena Duces Tecum (14+ days)
- Request for Production Duces Tecum (30 days)
- State means of recording sound
- sound and visual
- NOTE: If you as other party requests a different means of recording, you must give prior notice. Your cost. (Writing not required but preferred.)
- Must give notice if you file the deposition.
Conduct of Deposition
- Must be before officer authorized to administer oath or authorized by court.
- Notaries. NMSA 14-12-1
- Secretary of State NMSA 14-3-3
- County Clerks
- Probate Court Clerks
- District Court Clerks
- Some Magistrate Court Clerks
- No qualifications required for expertise in recording or videotaping
- Can't be a relative, employee, attorney for a party (or employee or relative of attorney).
- No requirement that the "officer" actually do the recording or videotaping
- If recorded or videotaped, officer must supply required identifying information at beginning of each tape.
- Can be taken by phone or other electronic means.
- Witness must be put under oath or affirmation.
- No need for witness to sign, unless witness or party so requests before completion of deposition. Rule 1-030 E. (Change from previous rule which required witness to sign, unless signature waived.)
- Officer certifies that it is a true record. Rule 1-030 F.
Behavior at Deposition
WHAT YOU MAY NOT DO
- No continuous objections on insubstantial grounds. Griego v. Grieco, 90 NM 174 (Ct. App. 1977).
- No teaching. Id.
- No suggesting answers. Id.
- No dictating answers. Id.
- No coaching. Id.
- No wrongfully interfering with progress of deposition. Id.
- Commentary to clear up record. Id.
- No arguing objections. (Rule 1-030(D) (1).
- Can't instruct a witness not to answer, rule 1-030(D)(1), NMRA, unless there is a privilege, or to enforce court limitation or to present a Motion to terminate for bad faith conduct of a deposition or conduct of deposition is unreasonably annoying, embarrassing or oppressive.
WRITTEN INTERROGATORIES. Rule 1-033 NMRA
Limits and Requirements
- 50 questions including all discrete subparts.
- Answers to be signed under oath. (If not, you can't use at trial.)
- Need to be signed by attorney. (Rule 1-033 C.2)
- Must state grounds for objection with specificity (or waived). (Rule 1-033 C.4) (If you don't object, Judge has no discretion but to order answer.)
- Must answer unobjectionable parts of question. (Rule 1-033 C.1)
- Cannot object on grounds question asks for an opinion, or a contention that relates to a fact or application of law to fact. (Rule 1-033 D)
- Case law is that general objections such as oppressive, not reasonably calculated to the discovery of evidence, or legal opinions or conclusions are NOT SUFFICIENT. Lackey v. Mesa Petroleum Co., et al., 90 NM 65, (Ct. App. 1976).
Option to Produce Business RecordsIf answer can be derived from examination, audit or inspection of business records, and burden is the same for each party, you can respond by giving opportunity to inspect or copy but need to give details as to location and identity. (Rule 1-033 E)
Use at Trial
- Governed by Rules of Evidence. (Rule 1-033 D)
- Must be verified to use against a party. Lackey v. Mesa Petro. Co., et al., supra.
- Can be used against a party who made them. Crabtree v. Measday, 85 NM 20 (Ct. App. 1973).
- Can be used as admissions.
- CANNOT be used by party making answers to establish an affirmative claim or defense or in lieu of your client testifying. Id.
- Under appropriate circumstances, may be used as a prior consistent statement.
PRODUCTION OF DOCUMENTS AND THINGS (RULE 1-034)
- To produce and permit inspection and copying of documents in a party's control.
- Use subpoenas for nonparties. NOTE: A party should not be required to obtain, collect or turn over materials which opposing party is equally capable of obtaining on his own. United Nuclear Corp. v. General Atomic Co., 96 NM 155 (1980), p. 169.
- To permit entry to land or other property.
- Can be issued to non-parties by subpoenas pursuant to Rule 1-045.
- Must allow inspection.
- You do not necessarily have to copy.
- Objection must be specific. Produce as kept in normal course of business, OR
- Label them to correspond with categories in request.
PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS (RULE 1-035)
- Must be by Court Order although can be by agreement of the party.
- If person examined requests and receives a copy of the report or takes deposition of examiner, the party examined WAIVES any privilege in that action (or any other involving same controversy) regarding the testimony of every other person who has examined or who will in the future regarding that condition.
REQUESTS FOR ADMISSIONS (RULE 1-036)THE MOST UNDERUTILIZED, LESS COSTLY AND VERY EFFECTIVE MEANS OF DISCOVERY.
The Request for Admission of Fact
- To admit the truth of any matters within the scope of Rule 1-026 B that relate to statements, or opinions of fact, or of the application of law to fact, genuineness of documents.
- Each request must be separately stated.
- 30 days, or deemed admitted
- Signed by the party or by his attorney.
- Denials must be specific
- Must give details why you can't admit or deny
- Must admit that which is true, or most probably pay.
- May not give lack of information or knowledge as denial unless you state you've made reasonable inquiry and information known or readily attainable is insufficient.
- Cannot object on basis it is a genuine issue for trial but must state reasons.
Why Requests for Admissions of Fact and/or Genuineness of Documents are an Effective Tool
- Automatic "admission" if not responded to timely. (Be sure to offer into evidence at trial in order to establish the admission of fact or genuineness of document).
- Unless the objection is justified, the court "shall" order an answer to be served. (Rule 1-036 A)
- If this rule is not complied with Court can order matter be admitted or that amended answer be served. (Rule 1-036 A)
- Sanctions for denials under Rule 1-037 A.4 are heavy. NOTE: The Court "shall" require non-prevailing party to pay fees and costs absent substantial justification or unjustness. (Rule 1-036 A)
- Matters admitted are conclusively established (unless Court permits withdrawal or amendment upon Motion.) (Rule 1-036 B)
- Can be basis for award of attorneys’ fees and costs. (Rule 1-037) NOTE: Must be admitted into evidence to be used at trial. Robinson v. Navajo Freight Lines, 70 NM 215 (1962).
- Attorney for party can issue. (Rule 1-045 A(3))
- No need for court seal.
- Can do for pretrial production and inspection and copy without deposition or trial. Rule 1-045 A.(1)(c)
- Notice requirements if used for production only. Rule 1-045 B(2)(b)
- Imposes positive duty to avoid undue burden and expense, subject to mandatory sanction. (Rule 1-045 C (1).
- Provides protections for parties subpoenaed to produce documents or inspection of premises.
- Standards for motions to quash or limit.
- Describe duties of persons responding to subpoena.
- No appearance needed for person just producing documents.
- Mandates a 14-day advance notice to allow objection or motion. NOTE: This Rule is frequently misread. Rule 1-045 does not require a motion to quash in addition to a written objection. See subparagraph C(2)(b)(i) & (ii). If objection is served on a party serving the subpoena, they shall not be entitled to inspect or copy without court order. C(2)(b)(iii)
- Provision for fees and costs against objecting party.
- MUST supplement if asked to identify witnesses, subject matter of his/her testimony and substance of testimony. (This is crucial.)
- MUST amend if the response was incorrect when made, or
- Though correct when made is no longer true and failure to amend would constitute concealment.
- MUST SUPPLEMENT if the court orders it; or the parties agree to, or any party receives a request to supplement
SUBPOENAS (Rule 1-045, NMRA, revised 2002) Significant revisions
Rule 1-026 Applies to Subpoenas.Allows sanctions for abuse. Wallis v. Smith, 130 NM 214 (CA 2001). 2001-NMCA-017. NOTE: Where an expert is involved, subpoena all communications from lawyer who hired, fee agreements, drafts, work papers, note etc. and you can possibly avoid cost of deposition.
DUTY TO SUPPLEMENT AND FAILURE TO SUPPLEMENTRule 1-026 (E).
Generally no duty if response complete when made.
SANCTIONS FOR FAILURE TO SUPPLEMENT:Court has wide discretion. Chavez v. Board of County Commissioners, 2001-NMCA-065, 130 NM 753. (Witness disclosed one week prior to trial was limited to rebuttal only and there was no showing of prejudice.)
Be sure to take all measures you can before you claim prejudice. See Leithead v. City of Santa Fe, 1997-NMCA–041, 123 NM 353. Witness allowed to testify where there were no interrogatories directed to expert's facts and opinion and failure to re-depose when expert stated in first deposition that certain reports had not been reviewed.
Must show prejudice. Khalsa v. Khalsa, 107 NM 31 (Ct. App. 1988). (Expert witnesses should have been excluded when disclosed afternoon before trial and interrogatory had been propounded regarding experts. In addition, the Court's decision was based on expert's testimony, which was prejudicial to objecting party.) Shamalon v. U.S.F.&G., 111 NM 713 (1991). Plaintiff's expert properly excluded where expert's opinion had not been disclosed three weeks prior to trial despite efforts of opposing counsel to get information and who had propounded interrogatories. Prejudice found was denial of opposing party's time and ability to prepare. NOTE: This provision needs more enforcement by the Court.
Failure can result in severe sanctions. Enriquez v. Cochran & Boy Scouts of America (BSA), 126 NM 196 (CA 1998). BSA objected to some of Plaintiff's Request for Production of Documents. Court overruled. BSA didn't answer others, they said they would and were dilatory and evasive. Court held hearing on Motion for Sanctions and ordered sanctions striking seven of BSA's affirmative defenses. CA affirmed. Don't need order compelling discovery to impose sanctions. Also finding of wrongful intent not necessary.
Lewis v. Samson, 131 NM 317 (2001). Good case on failure to comply with Rule 1-026 duty and pretrial order in medical malpractice case. Plaintiff failed to supplement interrogatories regarding witnesses, even with request by Defendant to do so. Six weeks before trial Plaintiff identified 15 new fact witnesses and an expert witness. Defendant responded with Motion to Exclude. Plaintiff agreed to exclude most but wanted her expert and two factual witnesses. Trial judge excluded factual witnesses but not expert. HELD: The Court in very strong language denounced Plaintiff's blatant failure to follow Rule 26 duty to supplement. Upheld trial court's discretion.
DISCOVERY ABUSE AND SANCTIONSHon. Ernesto J. Romero
The Practical Import Is – You can’t prove a case without factsThe practical import of a failure of a party to comply with authorized discovery is substantial. It is simply not enough to require the offended party to apply to the court for relief, only to have the court order discovery be complied with. When that happens, a fortiori, the party against whom the offense was committed “loses”. The loss to the innocent party is twofold. First, the attorneys fees paid to obtain a court order directing the offending party to do what it was required to do in the first place and secondly, the delay in the innocent party’s ability to evaluate the case with the benefit of the operative facts. The party violating the discovery rules in such an instance is rewarded because he/she escapes any consequence for the imposition committed against the offended party and in effect takes the benefit of a judicially sanctioned extension of time within which to respond to authorized discovery outside the contemplation of the rules of civil procedure.
DISCOVERY AS A FUNDAMENTAL RIGHTThe right to discovery is fundamental to a fair trial. In General Atomic Corp. vs. United Nuclear, 96 NM 155 at 167, 629 P.2d 231, (1980), the Supreme Court quoted with approval the US Supreme Court’s articulation of the relationship between discovery and a fair trial, as follows:
...,we must begin with the notion that discovery is designed to make a trial less a game of blind man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent... [citations omitted].
In Marchiondo vs. Brown, 98 NM 394 at 397, 649 P.2d 462, (1982), the NM Supreme Court stated:
The pretrial discovery rules ...intend a liberal pretrial discovery, to enable the parties to obtain the fullest possible knowledge of the facts before trial. Such a right is fundamental to our system of jurisprudence. [emphasis added].
Discovery is such an important right, that a trial court is not free to grant a Protective Order dictating how a party may proceed in discovery, absent extraordinary circumstances.
See, for example, Salitan vs. Carrillo, 69 NM 476, 368 P.2d 149, (1961), where the Supreme Court reversed a trial court’s protective order prohibiting the defendant from taking non-resident plaintiff’s deposition in New Mexico and directing that discovery proceed by other means and Griego v. Grieco, 90 N.M. 174, 561 P.2d 36 (Ct. App. 1977), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977) in which the Court of Appeals reversed a trial court’s order limiting the examination of a witness by pre-trial deposition. Stated the Court:
We find no rule of law, and none has been presented, that allows a district court to limit the examination of a witness, absent a motion by the opposing party pursuant to Rule 30(b) and (d)[annoyance, embarrassment, oppression](citing with approval and quoting Northwestern University v. Crisp, 211 Ga. 636, 88 S.E.2d 26, 31 (1955): ("Such a right is basically fundamental to our system of jurisprudence and no court has power to restrict or limit it.") Id. At 177, 561 P.2d
COMMON MISCONCEPTIONS ABOUT A TRIAL COURT’S AUTHORITY TO DEAL WITH DISCOVERY ABUSE.Common misconceptions exist regarding a trial court’s authority to impose sanctions for a failure to comply with the discovery rules. The misunderstanding is that the Court must jump through each of the following “hoops” before imposing sanctions:
- find discovery responses inadequate, not forthcoming, evasive, incomplete or that objections are not sustainable and
- enter an order directing that the discovery be made pursuant to Rule 1-037, and
- the offending party fail to comply with the Rule 1-037 order, and only then does the court’s authority to impose sanctions "ripen into fruition."
We have considered, and we reject, BSA's position that its failure to respond to interrogatory 12 cannot be used to support sanctions because it was never ordered to respond. BSA's argument fundamentally misperceives the nature of a litigant's obligation to respond to discovery requests and the court's discretionary power to enforce those obligations. It was BSA's responsibility to respond to interrogatories served on it, or to object to them.
Thus, the trial courts have the power to impose a sanction without first ordering compliance under Rule 1-037(A). [emphasis added]
Trial courts are not required to exhaust lesser sanctions before acting. See vs. Surgidev, supra 120 N.M. at 158, 899 P.2d at 601 and United Nuclear Corp, supra, 96 NM at 239, 629 P.2d at 315. In accord see In Re Chavez, 129 N.M. 35; 2000 NMSC 15, 1 P.3d 417; (2000). Also erroneous is the argument that prior to imposing sanctions for failure to comply with discovery, there must be a finding of wrongful intent. See Gonzales vs. Surgidev, 120 NM at 158, 899 P.2d at 601.
A TRIAL COURT IS DUTY BOUND TO IMPOSE SANCTIONS FOR DISCOVERY ABUSE"Courts must unhesitatingly impose sanctions proportionate to the circumstances to assure effective discovery." General Atomic, supra 96 NM 155, 241, 629 P.2d 231, 317, (1980).
"Courts have supervisory control over their dockets and inherent power to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. The trial judge has such inherent supervisory control that he [or she] can initiate proceedings under Rule 37." Pizza Hut of Santa Fe, Inc. v. Branch, 89 N.M. 325, 327, 552 P.2d 227, 229 (Ct. App. 1976).
"In making the choice of the sanctions to be imposed, the trial court must balance the nature of the offense, the potential prejudice to the parties, the effectiveness of the sanction, and the imperative that the integrity of the court's orders and the judicial process must be protected, Enriquez vs. Cochran, supra.
Purpose of sanctions for Discovery Abuse"The purposes of sanctions for discovery abuse are:
- to enable a party to obtain the discovery to which it is entitled;
- to compensate a party for expenses incurred because of violation of the discovery rules by another party; and
- to deter infractions of the rules and of court orders enforcing them." Gonzales vs. Surgidev Corp .II, supra, 120 NM 151 at 156.
Sanction OptionsContempt is not an option for discovery abuse the “first” time… but it is the second. A party may not be held in contempt of court for failing to comply with discovery, unless the abuse consists of a failure to comply with a court order directing discovery. See Bellamah vs. Rio Vista Apts., 95 NM 188, 656 P.2d 28, (1982) and Weineke vs. Chalmers, 73 NM 8, 385 P.2d 65 (1963), holding inter alia that in discovery disputes, district courts are not authorized to exercise their contempt powers until an order directing discovery has first been entered under Rule 1-037, NMRA. However, once an order directing discovery has been entered, violated, and the court’s contempt powers invoked, the purpose for which sanctions are imposed changes to a remedial one. Thus in State ex rel. Human Svcs. Dep't v. McDermott, 121 N.M. 609, NMCA-48 (1996), the Court of Appeals held:
In addition to the recovery of fees and costs incurred or to be incurred in prosecuting a contempt of court charge, the complainant in a civil contempt case is also entitled to recover damages caused by the contemptuous act. If those damages include attorney fees for defending (or, by logical extension, prosecuting) a different action, those attorney fees are recoverable as well. See El Paso Prod. Co., 116 NM at 592-593, 866 P.2d at 320-321, [Emphasis added].
See also El Paso Prod. Co. vs. PWG Partnership, 116 NM 583 at 592-593, 866 P.2d 311 (1983) in which the Supreme Court reversed a trial court for failing to award damages incurred proximate to the violation of the court’s order. Stated the Court:
We hold that once a plaintiff satisfies his burden of proving violation of a court order, proximate cause, and damages, he or she is entitled to judgment for recovery of those damages. Of course, if the damages were in the form of attorney's fees in defending against the violation, as in this case, the court has discretion in determining the reasonableness of those fees. The court additionally may award attorney's fees incurred in obtaining the order of contempt. We find that the trial court erred in failing to enter a judgment for the amount of the damages proved... [emphasis added].
The choice of sanctions for abuse of the discovery process falls within the sound discretion of the trial court and will be reversed only for abuse of discretion. Medina v. Foundation Reserve Ins. Co., 117 N.M. 163, 166, 870 P.2d 125, 128 (1994).
Attorney fee awards incurred in filing and prosecuting a Motion to Compel, in addition to other relief. If discovery dispute consists of a failure to respond within the time permitted, objections are waived and the only issue upon hearing a Motion to Compel discovery, should be the fees incurred by the injured party in obtaining the court’s Rule 1-037 order. See General Atomic vs. United Nuclear, supra.
Disallowance of claims and/or right to oppose claims. Rule 1-037(B)(2)(b) provides that a trial court may respond to an abuse of discovery by "refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence."
Exclusion of witnesses and other evidence: "... in any just search for truth, a trial court must have broad discretion to admit or refuse testimony of witnesses whose identity was not revealed in answers to pretrial interrogatories." Montoya v. Super Save Warehouse Foods, 111 N.M. 212, 215, 804 P.2d 403, 406 (1991).
Default Judgment. Appropriate for a pattern and practice of discovery abuse, although it is an extreme remedy which will basically be reviewed de novo on appeal. General Atomic vs. United Nuclear, supra.
PRE-TRIAL MOTION PRACTICE IN FAMILY COURT
RULES AND REQUIREMENTS GOVERNING MOTION PRACTICE(1). Requirement that Motions be in Writing
All motions, except motions made during trial, must be in writing and state with particularly the relief and the basis for the relief sought. Rule 1-007.1, NMRA.
(2). Requirement for Pre-Filing Request for Concurrence.
Prior to filing a motion, movant is required to confer with the opposing party to determine whether the motion will be opposed. If unopposed, the motion should state that it is unopposed and an order initialed by opposing counsel granting the motion and requested relief should be submitted to the Clerk for entry when the motion is filed. Pre-filing consultation with the opposing party or counsel is required except as to the following dispositive motions: (1). Motions to Dismiss (i.e. for lack of personal or subject matter jurisdiction under Rule 1-012 (B) (1)-(2); Motion for New Trial; (3) Motion for Judgment as a matter of Law, (i.e. Rule 1-012 B (6) "failure to state a claim upon which relief can be granted"); (4) Motions for Summary Judgment. See Rule 1-056, NMRA, and (5) Motions for Relief from Judgment. (Rule 1-060). See Rule 1-007.1 C (1)-(5), NMRA
(3). Rules governing attachments to Motions.
Filing attachments to motions is governed by Rule 1-007.1 C, which provides:
Notwithstanding the provisions of any other rule, counsel may file with any opposed motion a brief or supporting points with citations or authorities. If the motion requires consideration of facts not of record, the moving party shall file copies of all affidavits, depositions or other documentary evidence to be presented in support of the motion...
(4) Requirement for a Response to Motion.
A written response in opposition to an opposed Motion is required. Rule 1-007.1, NMRA, states:
Failure to file a response within the prescribed time period constitutes consent to grant the motion, is a waiver of the notice provisions of Paragraph C of Rule 1-058 NMRA, and the court may enter an appropriate order.
The Committee commentary to Rule 1-007.1 states that when a party fails to file a written response within the time prescribed by the rule, movant’s counsel may submit an order for entry on the motion or the court may do so sua sponte. Notwithstanding the Committee’s commentary, the Court of Appeals recently held otherwise with respect to Summary Judgment Motions. See Lujan vs. City of Albuquerque, 2003-NMCA-04, 143 N.M. 207, 5 P.3rd 423, (Ct. App. 2003).
(5) Requirement to plead with specificity in Motions.
The function of pleadings is to give fair notice of the claim to enable the other party to respond. See Las Luminarias of N.M. Council of Blind vs. Isengard, 92 NM 297, 587 P.2d 444 (Ct. App. 1978). Rule 1-008 E states that pleadings are to be "simple, concise and direct," except for fraud and mistake which Rule 1-009 B requires be plead with particularity.
(6) Requirements as to form of Motions
A caption and separate paragraphs are required. Rule 1-010 C, NMRA governs the adoption by reference of statements in pleadings and exhibits attached to pleadings of record may be adopted by reference in any pleading and need not be repeated.
(7). Requirement for Service of Motion
Rule 1-005A requires that every motion other than one that may be heard ex parte, must be served upon each party. Rule 1-089 provides that filing a pleading signed by an attorney constitutes an entry of appearance by the attorney and Rule 1-005 B allows service on a party by service upon that party’s attorney, unless the Court waives service. Rule 1-089 D provides that an attorney of record shall continue to be subject to service for ninety (90) days after the date judgment is entered. Rule 1-089 D is important to family law practitioners because in post-judgment proceedings filed more than ninety days (90) days after judgment is entered, movant must pay another filing fee (Rule 1-099 B (1) and comply with Rule 1-098 E, which states:
In the event of further legal proceedings between the parties after the ninety (90) days have elapsed, the moving party shall effect service of process upon the responding party in the manner prescribed by Rule 1-004 NMRA.
Rule 1-004 governs service of process and requires that a responding party be served as though the action were newly filed, which requires, literally, the issuance of summons, personal service or publication and the filing of proof of service. In this regard the death of a party, does not abate a divorce proceeding. See §§ 40-4-20 B. § 37-2-4, NMSA, 1978 Comp, states:
No action pending in any court shall abate by the death of either, or both, the parties thereto, except an action for libel, slander, malicious prosecution, assault or assault and battery, for a nuisance or against a justice of the peace [magistrate] for misconduct in office, which shall abate by the death of the defendant.
(8) Requirement of a Signature on Motion:
Pleadings must be signed. Rule 1-011 states in pertinent part:
The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion or other paper; that to the best of the signer's knowledge, information and belief there is good ground to support it; and that it is not interposed for delay "...For a willful violation of this rule an attorney or party may be subjected to appropriate disciplinary or other action. A "signature" means an original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law."
NEW DEVELOPMENTS IN FAMILY LAW MOTION PRACTICE
THE FAMILY LAW RULES OF CIVIL PROCEDUREPleading significantly changed in family law practice when the Supreme Court in 2001 adopted Rules 1-120 through 1-127, NMRA and Domestic Relations forms. Rule 1-120 states:
Rules 1-120 to 1-127 NMRA provide additional rules for domestic relations actions.
The “new rules” are:
- Rule 1-121, which pertains to Temporary Domestic Orders,
- Rule 1-122, which pertains to Interim Division of Income and Expenses,
- Rule 1-123, which pertains to Community and Separate Property Liability Schedules and child support
worksheets. Note that Rule 1-123 B and
- B. Child support worksheets. If the action involves child support, the parties shall each complete a child support worksheet. Unless otherwise stipulated by the parties or ordered by the court, the parties shall serve the worksheets at least five (5) days before trial. The worksheets shall be delivered to the trial judge at least one (1) day before trial.
- C. Failure to comply. Failure to timely serve the schedule or worksheet may result in the assessment of costs and attorney fees against the delinquent party or such other sanctions as the court deems appropriate.
- Rule 1-124 which pertains to child custody, parenting plans, arbitration and mediation.
- Rule 1-0125, which pertains to domestic relations mediation.
- Rule 1-126, which pertains to partial decrees, and
- Rule 1-127, which pertains to attorney fees in domestic relations cases.
These rules and the Domestic Relations Forms supersede local rules and forms currently required by many judicial districts. The primary goal of these rules and forms is to provide uniformity in the practice of law in this state.
Scope of the new domestic relations rules as used in this rule, "domestic relations actions" include:
- legal separations, Section 40-4-3 NMSA 1978;
- dissolution of marriage, Section 40-4-5 NMSA 1978;
- annulment, Section 40-1-9 NMSA 1978;
- spousal support, Section 40-4-7 NMSA 1978;
- child support, Sections 40-4-11 to 40-4-11.6 NMSA 1978;
- division or distribution of community or separate property or debts, Sections 40-2-1 to 40-2-9, 40-3-1 to 40-3-17 and 40-4-20 NMSA 1978;
- determination of paternity pursuant to the Uniform Parentage Act, Sections 40-11-1 to 40-11-23 NMSA 1978;
- actions brought pursuant to the uniform Interstate Family Support Act, Sections 40-6A-101 to 40-6A-902 NMSA 1978;
- child custody actions pursuant to Sections 40-4-9 and 40-4-9.1 NMSA 1978 and actions brought pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act, 40-10A-101 to 40-10A-403 NMSA 1978.
- actions brought pursuant to the Mandatory Medical Support Act, Sections 40-4C-1 to 40-4C-14 NMSA 1978; and
- actions brought pursuant to the Support Enforcement Act, Sections 27-2-32, 37-1-29, 40-4-15 and 40-4A-1 to 40-4A-16 NMSA 1978.
- termination of parental rights actions brought in the children's court,
- adoption of a child pursuant to Sections 32A-5-1 to 32A-5-45 NMSA 1978;
- adoption of an adult pursuant to the Adult Adoption Act, Sections 40-14-1 to 40-14-15 NMSA 1978;
- proceedings brought pursuant to the Grandparent Visitation Privileges Act, Sections 40-9-1 to 40-9-4 NMSA 1978 except mediation and attorney fee proceedings;
- proceedings brought pursuant to the Family Violence Protection Act, Sections 40-13-1 to 40-13-7 NMSA 1978;
- actions arising out of enforcement of the Parental Responsibility Act, Sections 40-5A-1 to 40-5A-13 NMSA 1978; or
- change of name proceedings brought pursuant to Sections 40-8-1 to 40-8-3 NMSA 1978.
THE NEW FORMS
Significant new developments in Family Law motion practice occurred when the Supreme Court adopted mandatory Domestic
Relations Forms in November 2002. Domestic Relations Form 4A- 100 B entitled “Mandatory forms”, states:
The forms compiled as Domestic Relations Forms 4A-111 through 4A-132 NMRA are approved for use by attorneys in representing their clients in domestic relations cases in the district courts. These forms supersede conflicting local district court domestic relations forms. Amongst the “mandatory forms” is Domestic Relations Form 4A-111, as follows:
MOTION FOR TEMPORARY ORDER
I, ________________________ (name of petitioner or respondent) request the court to enter temporary orders for the purpose of: ( check all applicable alternatives } [emphasis added –ed)
- [ ] temporary domestic order;
- [ ] temporary custody of minor children;
- [ ] temporary parenting time;
- [ ] temporary child support;
- [ ] temporary division of community property;
- [ ] temporary division of income and debts;
- [ ] temporary order withholding child support from (respondent’s) (petitioner’s) wages and having the child support paid directly to ________________________ (petitioner) (respondent);
- [ ] ______________________________ (other). ____________________
Signature of party or attorney
CERTIFICATE OF SERVICE
AFFIDAVIT OF SERVICE
- PRACTICE TIPS -
- When drafting other than Domestic Relations form motions, remember the Three “C” rule: Be clear, concise and correct.
- When pleading modification of child support, custody or time-sharing motions, state the date of the last adjudication and the substance of the “material change”. Modification of child custody is "proper" upon a showing of materially changed circumstances affecting the best interests of the child. See Schuermann v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980); Fox v. Doak, 78 N.M. 743, 438 P.2d 153 (1968); Strosnider v. Strosnider, 101 N.M. 639, 686 P.2d 981 (Ct. App. 1984); see also Alfieri v. Alfieri, 105 N.M. 373, 733 P.2d 4 (Ct. App. 1987). This standard is also applicable to requests for modification of child visitation rights. See Kerley v. Kerley, 69 N.M. 291, 366 P.2d 141 (1961).
- Always request a sufficient amount of time for the court to hear your motion.
- Use the word “emergency” sparingly; otherwise you lose your most important tool – your credibility.
- Do not delay filing a motion and then claim an “emergency”. File motions in the sequence of your litigation blueprint.
Here is an example of applying a litigation blueprint:
- If you are the unemployed spouse or the spouse earning the lesser of two incomes, file your Interim Division of Income Motion as soon as possible File your discovery as soon as permitted.
- If the discovery responses are inadequate, ignored or non-responsive promptly, file your Motions to Compel.
- Prepare for an LR 2-602 Settlement Facilitation as soon as you can.
- If there are custody or time-sharing disputes, get your Court Clinic Referral Order as soon as you can. If you and opposing counsel stipulate to the appointment of a Rule 11-706 Expert to undertake a custody evaluation, make sure a completion deadline is set forth in the appointment order.
- Do not file motions to terminate parental rights in DR cases because the District Court under Chapter 40 has no authority to terminate parental rights. See In re Guardianship Petition of Lupe C., 112 N.M. 116, 120, 812 P.2d 365, 369 (Ct. App. 1991) and In re Guardianship of Sabrina Mae D.,114 N.M. 133, 139, 835 P.2d 849, 855 (Ct. App. 1992).
Pointers For Trial
- Be prepared. Begin preparation before filing suit.
- Know what must be proven and how it will be proven In other words know well in advance of trial which witness(es) will establish which elements of proof and which documents will be introduced into evidence.
- Comply with all pretrial orders and deadlines.
- Provide the opposing party/counsel a copy of all exhibits you will or may seek to admit into evidence at least five (5) days prior to trial to avoid claims of surprise.
- Pre-mark all exhibits you will or may seek to introduce into evidence.
- Decide upon the order of proof you will pursue during the presentation of your case, i.e. the sequence of witnesses in your case-in-chief.
- Understand the sequence of events in a trial as follows:
- Petitioner’s Opening statement
- Respondent’s Opening statement
- Petitioner’s case-in-chief
- Respondent’s case-in-chief
- Petitioner’s rebuttal witnesses if any
- Petitioner’s closing argument
- Respondent’s closing argument
TRIAL OF CUSTODY ISSUESa. Role of the Court Clinic
b. 11-706 Expert Witness
IRVING YOUNGER’S “TEN COMMANDMENTS” OF CROSS-EXAMINATION
- Be Brief
- Use Short Questions, plain words
- Always ask leading questions
- Do not ask a questions unless you already know the answer
- Listen to the witness’ answer
- Do not quarrel with the witness
- Do not allow the witness to repeat his direct-examination testimony
- Do not permit the witness to explain his answers
- Do not ask too many questions
- Save the ultimate point of cross-examination for summation
ATTACKING PARTY OPPONENT’S CASE THROUGH CROSS-EXAMINATION
- Admission by a party opponent Rule 11-801 D (2)
- Prior Inconsistent statement Rule 11-603
- Conviction of a crime 11-609;
- Adverse Character Evidence - Rule 11-608
- Prior Bad Acts, 11-404
- Eliciting testimony favorable to cross-examining party
- Bias-Interest in outcome, payment and amount of payment for testimony as an expert witness
- Inability to observe events
- Lack of knowledge