1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ARTURO RODRIGUEZ,
3 Petitioner-Appellant,
4 v. NO. 28,947
5 CYNTHIA ORTEGA,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Deborah Davis Walker, District Judge
9 Cynthia Ortega
10 Albuquerque, NM
11 Pro se Appellee
12 Lynda Latta
13 Albuquerque, NM
14 for Appellant
15 MEMORANDUM OPINION
16 KENNEDY, Judge.
17 Petitioner-Appellant Arturo Rodriguez (Father) appeals from orders of the
18 district court adopting a hearing officer’s report (Report) on a child custody issue over
19 his objections. [RP 393-94] Our notice proposed to affirm. Father responded with
20 a memorandum in opposition. We have considered his arguments but remain
1 unpersuaded. We affirm.
2 DISCUSSION
3 A. Hearing Officer’s Report
4 Father argues on appeal that the district court erred by adopting the Report’s
5 findings and recommendations on child visitation because the Report was not
6 supported by the facts and law of the case. [MIO 2]
7 Father contends that his former wife, Respondent-Appellee Cynthia Ortega
8 (Mother), was not authorized to move out of state with their children absent his
9 written permission or a court order. [MIO 5] He argues that because the parties had
10 joint custody of the children, by moving out of state Mother violated NMSA 1978, §
11 40-4-9.1(J)(3)(1999), requiring parents with joint custody to consult with each other
12 on major decisions involving the children before implementing those decisions. [MIO
13 4] However, Father’s argument overlooks the specific terms of the parties’ modified
14 joint custody order.
15 The district court Order Adopting Advisory Consultation Recommendations
16 entered August 26, 2003, provides as follows:
17 Mother and Father will share Modified Joint Legal Custody. Mother will
18 be free to make the ordinary day-to-day parental decisions about all
19 matters affecting the care, health, and activities of the children without
20 prior consultation with Father. Father will be kept informed, in writing,
21 of any changes in the status quo and of the progress of the children’s
22 general development. Mother and Father may consult with one another
2
1 about significant matters, but the ultimate power to decide what course
2 of action shall be taken will rest with Mother.
3 (emphasis added) [RP 145-46] The district court order allocated authority to make
4 decisions regarding significant changes in the children’s lives to Mother. See § 40-4-
5 9.1(J)(5). The language of the Order is clear. Because mother had the ultimate
6 decision-making power with regard to significant matters, she was not required to
7 obtain Father’s permission or a court order prior to moving out of state. [RP 145-46]
8 Mother was obligated to provide to Father in writing 30 days’ notice of the date
9 and destination of the move she intended to make. See § 40-4-9.1(J)(4)(a). Mother
10 provided more than 30 days’ notice to Father of the intended date and destination of
11 the move. [RP 384] The record shows that Mother complied with the requirements
12 of § 40-4-9.1(J)(4)(a) and attempted to resolve timesharing issues with Father before
13 she relocated. [RP 369-70]
14 Prior to adopting the Report, the district court conducted an independent review
15 of the Report, notice of hearing, and notice of filing in accordance with Rule 1-
16 053.2(E) NMRA, which provides that a hearing officer's recommendations shall not
17 become effective until reviewed and adopted as an order of the court. [RP 393] The
18 record provides substantial evidence in support of the district court’s order adopting
19 the Report. “Substantial evidence is such relevant evidence that a reasonable mind
20 would find adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137,
3
1 138, 802 P.2d 1283, 1284 (1990). Because the district court complied with Rule 1-
2 053.2(E) in adopting the order, and the order is supported by substantial evidence in
3 the record, we affirm.
4 B. Hearing on Father’s Objections
5 Father argues on appeal that the district court erred by overruling his objections
6 to the Report and by failing to grant his request for a hearing on his objections. [MIO
7 5]
8 On appeal, Father argues that the district court erred in adopting the Report
9 because he was not provided a hearing on his objections to the Report’s findings and
10 recommendations. [MIO 5] Father contends that he was entitled to an additional
11 hearing because the district court’s review of his objections was merely cursory, and
12 the seriousness of the issue required the court to conduct a meaningful review and set
13 forth the basis for its decision to adopt the Report. [MIO 6-7]
14 Any party may file timely objections to a domestic relations hearing officer's
15 recommendations. Rule 1-053.2(H)(1)(b). Upon receipt of timely objections, the
16 district court must conduct a hearing appropriate and sufficient to resolve the
17 objections. Id. The hearing shall consist of a review of the record unless the court
18 determines that additional evidence will aid in the resolution of the objections. Id.
19 When appropriate, the district court may rely upon the written presentations of the
4
1 parties. Id. It is within the discretion of the district court to determine whether the
2 objections raised require more extensive review. Id.
3 The Hearing Officer found that Father’s visitation rights remained unchanged,
4 made temporary visitation arrangements, and set a hearing to finalize timesharing and
5 child support. [RP 384-85] Father filed timely objections to several of the findings.
6 [RP 387-90] Father’s objections were essentially that Mother violated the court order
7 by moving the children out of state without his permission, that she violated the
8 timesharing agreement, and that the move was not in the children’s best interest. [RP
9 387-89] The district court conducted a review of the record, Father’s objections, and
10 the Report, and found that the Report was supported by substantial evidence in the
11 record as a whole and that the findings and recommendations were in accordance with
12 the law. [RP 394]
13 In his memorandum in opposition, Father asserts that Buffington v. McGorty,
14 2004-NMCA-092, 136 N.M. 226, 96 P.3d 787, controls. [MIO 5-6] We agree. “The
15 nature of the hearing and review to be conducted by the district court will depend
16 upon the nature of the objections being considered.” Buffington, 2004-NMCA-092,
17 ¶ 31.
18 Father’s objections pertained to Mother’s authority to determine whether the
19 move was in the children’s best interest. [RP 387-89] The court order of August 26,
5
1 2003, allocated authority to Mother the power to make decisions regarding significant
2 changes in the children’s lives. [RP 145-46] The fact that Mother was authorized by
3 court order to make major decisions regarding the children’s lives undermined the
4 validity of Father’s objections. Because sufficient evidence existed on the record to
5 make a final determination on the merit of Father’s objections, the district court acted
6 within its discretion when it deemed further evidence unnecessary.
7 “[T]he record of the hearing held before the district court must demonstrate that
8 the court in fact considered the objections and established the basis for the court's
9 decision.” Buffington, 2004-NMCA-092, ¶ 31. The district court order stated that it
10 reviewed Father’s objections, the record, and the Report, and determined that
11 substantial evidence supported the findings and recommendations. [RP 394] Nothing
12 further is required.
13 We hold that the district court did not err by refusing to grant Father’s request
14 for a hearing on the objections. We hold that because the district court reviewed the
15 record, objections, and Report prior to entering the order, Father was provided a
16 hearing under the requirements of Rule 1-053.2(H). We affirm.
6
1 IT IS SO ORDERED.
2 ___________________________________
3 RODERICK T. KENNEDY, Judge
4 WE CONCUR:
5 ___________________________
6 JAMES J. WECHSLER, Judge
7 ___________________________
8 CELIA FOY CASTILLO, Judge
7