Vickrey v. Vickrey ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 LICIA NICHOLE VICKREY,
3 Petitioner-Appellee,
4 v. Nos. 35,138 & 35,139
5 (consolidated)
6 DALE VICKREY,
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
9 Raymond L. Romero, District Judge
10 Sanders, Bruin, Coll & Worley, P.A.
11 Anna C. Rains
12 Roswell, NM
13 for Appellee
14 Barbara A. Patterson Law Firm, P.C.
15 Barbara Ann Patterson
16 Roswell, NM
17 for Appellant
18 MEMORANDUM OPINION
19 SUTIN, Judge.
1 {1} Respondent-Appellant Dale Vickrey has appealed from orders of the district
2 court resolving the parties’ competing motions to modify child custody and visitation.
3 We previously issued a notice of proposed summary disposition in which we proposed
4 to uphold the district court’s decision. Petitioner-Appellee Licia Nichole Vickrey has
5 filed a memorandum in support, and Respondent has filed a memorandum in
6 opposition. After due consideration, we affirm.
7 {2} Because we previously set forth the pertinent background information and
8 relevant principles of law in the notice of proposed summary disposition, we will
9 avoid undue reiteration here and focus instead on the content of the responsive
10 memoranda.
11 {3} Respondent continues to argue that the district court displayed impermissible
12 gender bias, [MIO 2-7] based on its expressed belief that “there are fundamental
13 differences between the things that fathers and mothers can provide” for their
14 daughters and that “young ladies of this age need their mother.” [DS 5; MIO 5] We
15 acknowledge Respondent’s concerns about gender discrimination. [MIO 3] However,
16 we remain unpersuaded that the district court displayed such bias.
17 {4} As we previously observed, with respect to child custody matters, the governing
18 statute provides that gender is a permissible consideration. See NMSA 1978, § 40-4-
19 9.1(C) (1999) (providing that in this context “the court shall not prefer one parent as
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1 a custodian solely because of gender” (emphasis added)); see, e.g., Seeley v. Jaramillo,
2 1986-NMCA-100, ¶ 11, 104 N.M. 783, 727 P.2d 91 (noting evidence that, in light of
3 age and gender-based considerations, the parties’ daughter could benefit from the
4 mother’s custody). Although Respondent contends that Section 40-4-9.1(C) should
5 be interpreted to prohibit any consideration of gender in the decision-making process
6 [MIO 3-4], we will not depart from the clear meaning of the plain language. See
7 generally Summers v. N.M. Water Quality Control Comm’n, 2011-NMCA-097, ¶ 16,
8 150 N.M. 694, 265 P.3d 745 (observing that, when considering the plain language of
9 a statute, we “assume that the ordinary meaning of the words expresses the legislative
10 purpose” (internal quotation marks and citation omitted)). Respondent’s constitutional
11 concerns are not sufficiently developed to convince us otherwise. [MIO 3] See
12 Generally Marrujo v. N.M. State Highway Transp. Dep’t, 1994-NMSC-116, ¶ 9, 118
13 N.M. 753, 887 P.2d 747 (observing that “[w]hen dealing with a facial constitutional
14 challenge of a statute, the legislation enjoys a presumption of constitutionality” and
15 briefly setting forth the various standards and differing focuses associated with the
16 equal protection and due process guarantees (internal quotation marks and citation
17 omitted)).
18 {5} Respondent further argues that the district court’s findings and conclusions
19 concerning the propriety of maintaining primary physical custody with Petitioner in
3
1 light of Petitioner’s status as the child’s primary psychological, emotional, and
2 nurturing parent cannot be meaningfully evaluated without review of the transcript of
3 the proceedings below. [MIO 4] We disagree. The record before us reflects that
4 evidence was presented in support of the district court’s findings, specifically
5 concerning Petitioner’s historical and current relationship with the child, as well as the
6 child’s preference to remain with Petitioner. [RP 439-40; MIS 1-4] Respondent does
7 not deny that such evidence was presented; instead, we understand him to suggest that
8 the evidence should be re-weighed in view of his claim of gender discrimination.
9 [MIO 4-6] We decline the invitation. See generally Fitzsimmons v. Fitzsimmons,
10 1986-NMCA-029, ¶ 10, 104 N.M. 420, 722 P.2d 671 (“Great discretion is accorded
11 the trial court in custody matters . . . . It is the trial [court] who hears all the evidence,
12 who observes the demeanor of the parties and their witnesses and who is in the best
13 position to exercise [its] sound judgment.”); In re Termination of Parental Rights of
14 Laurie R., 1988-NMCA-055, ¶ 28, 107 N.M. 529, 760 P.2d 1295 (“In determining
15 whether the evidence supports the findings and decision of the trial court, we view the
16 evidence in the light most favorable to the prevailing party[] and resolve all conflicts
17 and indulge in all permissible inferences therefrom in favor of the decision of the trial
18 court. An appellate court will not substitute its judgment for that of the trial court.”
19 (citation omitted)).
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1 {6} Accordingly, for the reasons stated in our notice of proposed summary
2 disposition and in this Opinion, we affirm. Petitioner’s request for attorney fees on
3 appeal is denied.
4 {7} IT IS SO ORDERED.
5 __________________________________
6 JONATHAN B. SUTIN, Judge
7 WE CONCUR:
8 _______________________________
9 JAMES J. WECHSLER, Judge
10 _______________________________
11 STEPHEN G. FRENCH, Judge
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