| |
- In 2002 father sued asking for sole custody of the parties'
8-year old son who had never lived with him before by claiming
that mother alienated and inhibited the father-son relationship.
At the end of trial in 2003, Judge Walker found that there were
no circumstances justifying a change in custody (from joint to
sole) or primary time-sharing (from mother to father). Father,
however, was given a very generous time-sharing schedule including
almost all holidays and the entire summer. Unfortunately, the
cost to mother for defending against the onslaught of false allegations
was over $90,000. Mother appealed to get these costs back and
asked for a reversal of Judge Walker's order that child support
be used to pay the guardian ad litem. Mother won most issues on
appeal,
in addition to her cost
of appeal.
- Specifically, the Court of Appeals mandated to the District
Court Judge to:
- "reverse that part of the court's order requiring Father
to pay Mother's share of the GAL fees and to deduct that amount
from his monthly support payments"
- "reverse the court's ruling imputing salary to Mother"
- remand to hold an evidentiary hearing regarding Mother's
self-employment
- "remand the issue of whether Mother should have been
awarded attorney fees"
- "remand that issue [abatement of child support] for
the court to determine what the parties' support payment should
be"
- The case was moved out of family court to Bernalillo County
Civil Court Judge Linda Vanzi
who has only heard one other family court case in her short judicial
history. This move was in violation of the law (NMRA LR 2-103
administrative division of the courts).
- Judge Vanzi refused to recuse from the case and never followed
the mandate from the Court of Appeals. Although Mother's appeal
has now become case law that all other judges in the State of
New Mexico must follow, the Court of Appeals and the Supreme Court
have allowed Judge Vanzi to ignore the case as if the mandate
from the Court of Appeals does not exist.
- Although Judge Vanzi initially scheduled an evidentiary hearing
as per the mandate, Mother was unable to prepare for or attend
the trial because of a medical condition. Her physician provided
a signed medical note to Judge Vanzi asking her to excuse Mother
from proceedings. After the first note Judge Vanzi cancelled the
trial date and rescheduled it for two months later. Mother's physician
asked for another two month delay, but this time Judge Vanzi simply
cancelled the hearing and accepted a Motion for Summary Judgment
from Father's attorney without hearing.
- Mother appealed
a second time having to ask the Court of Appeals to enforce its
own mandate. In her appeal she argued that the Court of Appeals
has an obligation to enforce its own orders and she quoted from
ample case law stating that a district court judge cannot rule
on summary judgment on a remand from the Court of Appeals to make
new determinations in the case.
- Surprisingly the Court of Appeals proposed to reject her argument
and allow Judge Vanzi's summary judgment ruling to stand. Not
only did Judge Vanzi's ruling deny Mother the opportunity to recoup
the over $90,000 spent in defending against Father's accusations
it also retroactively
decreased child support by hundreds of dollars a month since 2002.
- Mother objected
to the Court of Appeals Opinion stating that the judges are not
medical experts and cannot determine whether Mother should have
been able to file a Notice of Appeal during the period of sickness
as documented by her physician. Mother also argued that the opposing
party never waived its objections to her physician statement that
she was not available. The Court of Appeals should not later take
the opposing party’s side in this matter, but accept the
physician’s statement without question. Mother also objected
that the Court of Appeals completely sidestepped the main issue
that Judge Vanzi refused
to follow its previous Order or Mandate and the Court of Appeals
should enforce its own mandate on the district judge regardless
of Mother’s medical problems preventing her filing of the
Notice of Appeal for four weeks.
- Regardless of Mother’s objections the Court of Appeals
issued its Memorandum
Opinion in October 2006 without one word about Judge Vanzi’s
failure to follow its mandate.
- Mother appealed the decision by filing a Writ
of Certiorari to the Supreme Court of New Mexico. In the Writ
she argued:
- The Second Judicial District Court was judge-shopping from
the Court of Appeals by issuing essentially the same order
that was reversed by the Court of Appeals on a previous mandate
instead of following the mandate as Judge Vanzi was ordered
to do.
- The Court of Appeals had no access to Mother's medical file
or any medical experts when it made the arbitrary decision
that Mother's sickness did not prevent her from timely appealing
the Summary Judgment Order. In other words, the Court of Appeals
cannot assert itself as a medical expert and should have ordered
that this be handled as an evidentiary matter rather than
make an arbitrary decision about an illness about which they
knew nothing.
- The Court of Appeals acted as an agent on behalf of Father
rather than a neutral tribunal in making its decision since
it brought up a medical objection that Father's counsel never
raised in rejecting the appeal.
- The Court of Appeals completely ignored ample case law in
affirming a district court summary judgment order that was
made with no hearing and no opportunity for Mother to exercise
her due process rights. As a dispositive motion, the motion
for summary judgment impacted the entire course of events
and required a hearing.
- The Court of Appeals is given no authority to override one
of its own panel's mandates and that is exactly what happened
in this situation. The Appellate Panel of Judge
A. Joseph Alarid, Chief
Judge Michael D. Bustamante, and Judge
Cynthia A. Fry took authority that it do not have in overriding
the mandate from the appellate panel in the first successful
appeal Docket
#24,445.
- Finally, Mother's most important argument of the Writ was:
"This appears to be an upside down system in which the
district court is the dog that wags the tail of the Court
of Appeals. The Court of Appeals states in 24,445 that more
evidence is needed. The district court orders that no evidence
is needed. The Court of Appeals in a second appeal on the
issue decides to uphold the district court ruling, in spite
of the fact that it is in direct defiance of the mandate of
24,445. If the district court gets a second bite of the apple,
what then is the purpose of the Court of Appeals? It is not
acting judicially because it fails to uphold its own mandate.
It appears that precedent does not apply to the lower court,
and the Court of Appeals does not enforce precident...The
only way that the actions of the district and appellate courts
make sense is if they have the ability to independently make
law as administrative rather than judicial tribunals."
(Administrative authorities are not afforded judicial
immunity and can be sued for their actions.)
- The New Mexico Supreme Court, Justices Richard
C. Bosson, Patricio
M. Serna, Petra
Jimenez Maes, and Edward
L. Chavez (not participating: Pamela B. Minzner) denied
the Writ of Certiorari on November 27, 2006 with no explanation.
|
| |
|
