Miller v. Miller ( 2022 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40047
CARLA MILLER,
Petitioner-Appellee,
v.
ANDREW MILLER,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT CURRY COUNTY
David Peter Reeb, Jr., District Judge
Hollie L. Barnett
Clovis, NM
for Appellee
Andrew Miller
Navarre, FL
Pro Se Appellant
MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Respondent, the self-represented father of the children, appeals from the district
court’s order denying Petitioner’s motion to modify custody, but granting Petitioner’s
motion to modify visitation. We issued a notice proposing to summarily affirm.
Respondent has filed a memorandum opposing our notice, which we have duly
considered. We remain unpersuaded that Respondent has demonstrated error and
affirm.
{2} On appeal, Father contends that the district court improperly modified the
visitation arrangement on grounds that the district court erroneously considered the
children’s hearsay statements in concluding that they had contact with his new wife, Ms.
Salas, in violation of the court’s order. [MIO 1-9] As explained in our notice, there are
ways for the children’s statements to convey to the district that they were in contact with
Ms. Salas that did involve the admission of hearsay or inadmissible hearsay, and
Respondent bore a heightened obligation to show prejudice by the admission of
inadmissible hearsay in a bench trial. [CN 3-4] State v. Pickett, 2009-NMCA-077, ¶ 21,
146 N.M. 655, 213 P.3d 805 (“We presume that a judge in a bench trial is able to
properly weigh the evidence and that erroneous admission of evidence is harmless
unless it appears that the judge must have relied upon the improper evidence in
rendering a decision.” (internal quotation marks and citation omitted)).
{3} In response to our proposed analysis, Respondent continues to assert that all the
children’s statements in exhibits 5 and 6 were hearsay [MIO 1-7], but does not
demonstrate that all the statements made in those exhibits constituted inadmissible
hearsay and that the district court, sitting as fact-finder, could not have determined that
Ms. Salas had contact with the children without relying exclusively on inadmissible
hearsay. See Rule 11-801(C) NMRA (defining hearsay as an out-of-court statement that
“a party offers in evidence to prove the truth of the matter asserted in the statement”
(emphasis added)); Pickett, 2009-NMCA-077, ¶ 21; In re Ernesto M., Jr., 1996-NMCA-
039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of
prejudice.”).
{4} Respondent’s remaining arguments appear to challenge the children’s credibility
and highlight the inconsistency of their statements. [MIO 7-9] It is for the fact-finder to
resolve any conflict in the testimony of the witnesses and to determine where the weight
and credibility lie. State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482.
On appeal, we do not second-guess trial court decisions concerning the credibility of
witness, nor do we reweigh the evidence, nor substitute our judgment for that of the
fact-finder. See State v. Garcia, 2011-NMSC-003, ¶ 5 149 N.M. 185, 246 P.23d 1057.
{5} For the reasons set forth above and in our notice, we hold that Respondent was
not demonstrated error and affirm the district court’s order modifying visitation.
{6} IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge
WE CONCUR:
JACQUELINE R. MEDINA, Judge
MEGAN P. DUFFY, Judge