FROM THE DISTRICT COURT OF BERNALILLO COUNTY Debra Ramirez,
D. Baca Albuquerque, NM for Appellee
Crowley & Gribble, P.C. Clayton E. Crowley Albuquerque,
NM for Appellant
TIMOTHY L. GARCIA, Judge
Respondent-Appellant Jonathan Muniz (Father) appeals from the
district court's order rejecting his objection to an
order of protection entered by a domestic violence
commissioner on December 9, 2016, and adopting the order of
protection as the order of the district court on January 24,
2017. We previously issued a second notice of proposed
summary disposition in which we proposed to affirm. Father
has filed a response, which we construe as a memorandum in
opposition. After due consideration, we remain unpersuaded.
We therefore affirm.
The pertinent background information was set forth in our
notices of proposed summary disposition. We will avoid undue
repetition here, and focus instead on the content of the
memorandum in opposition.
As an initial matter, we note that together with the
memorandum in opposition, Father submitted a copy of
CYFD's administrative review results, dated June 22,
2017. [MIO Exhibit 1] It is well established that
"reference to facts not before the district court and
not in the record is inappropriate and a violation of our
Rules of Appellate Procedure." Durham v. Guest,
2009-NMSC-007, ¶ 10, 145 N.M. 694, 204 P.3d 19.
Therefore, we will not consider Father's submission.
In the memorandum in opposition, Father asserts that "by
relying on the 'allegations against Father' as
contained in the written record, the Court deprives Father of
his appeal as of right on the merits on the underlying case[,
]" [MIO 1] and further asserts that "[o]nly the
transcript from the merits hearing itself can shine a light
upon" whether Father's conduct was "reasonable
in attempting to re-direct his son's behavior." [MIO
2] We disagree.
We have repeatedly held that, at this stage of the appellate
process, this Court may rely on the facts contained in the
record proper, the docketing statement, and the parties'
memoranda. See, e.g., Udall v. Townsend,
1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341. Absent a
contradiction in the record, full review of the district
court transcripts is not warranted. Id. ¶ 4.
The memorandum in opposition was Father's opportunity to
establish such a contradiction, id. ¶ 3, which
he has failed to do. As such, we presume correctness and
affirm. See Farmers, Inc. v. Dal Mach. & Fabricating,
Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063
(stating that the appellate courts presume that the trial
court is correct, and the burden is on the appellant to
clearly demonstrate error); Sandoval v. Baker Hughes
Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 146
N.M. 853, 215 P.3d 791 (stating that if the record is
doubtful or deficient, we will indulge every presumption in
support of the district court's judgment).
The memorandum in opposition also contains the conclusory
statement that "there was no competent evidence of the
daughter's distress." [MIO 2] Under our rules of
appellate procedure, the appellant is required to provide a
summary of the facts relevant to the issues presented for
review in the docketing statement. See Rule
12-208(D)(3) NMRA. As we alerted Father in our second
calendar notice, the docketing statement was deficient in
this regard, and Father's memorandum in opposition has
failed to cure this deficiency. Father's assertion,
whether viewed as a legal conclusion or a factual statement
that no evidence was presented, is insufficient. As the
appellant, it is incumbent upon Father to describe all
relevant evidence presented below to allow this Court to
review whether a reasonable fact-finder could have inferred
the presence of the requisite level of distress; contrary to
Father's position, this requirement does not amount to
having to prove a negative. [MIO 2] Because Father has failed
to do so, we presume correctness and affirm. See Farmers,
Inc., 1990-NMSC-100, ¶ 8; Sandoval,
2009-NMCA-095, ¶ 65.
Accordingly, for the reasons stated above and in our first
and second notices of proposed summary disposition, we