June 30, 2020- Brenna Cepelak v. David Gibson, No. A-1-CA-38079

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Odyssey.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BRENNA CEPELAK,
3 Petitioner-Appellee,
4 v. No. A-1-CA-38079
5 DAVID GIBSON,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Gerard J. LaVelle, District Judge
9 Atkinson & Kelsey, P.A.
10 Denise E. Ready
11 Albuquerque, NM
12 for Appellee
13 Michael L. Danoff & Associates
14 Michael L. Danoff
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VARGAS, Judge.
19 {1} Respondent David Gibson (Father) appeals from an order by which the district
20 court ultimately concluded that this state no longer has jurisdiction over custody
Court of Appeals of New Mexico
Filed 6/30/2020 11:13 AM

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1 matters in this case. We previously issued a notice of proposed summary disposition
2 in which we proposed to uphold the district court’s determination. Father has filed a
3 combined memorandum in opposition and motion to amend the docketing statement,
4 which we have duly considered. Because we remain unpersuaded, we affirm.
5 {2} We will begin with the motion to amend, by which Father seeks to advance a
6 constitutional challenge on the theory that he has been denied his right to appeal. [MIO
7 4-6, 16-24] However, the instant appeal from the district court’s final order represents
8 the fulfillment of that constitutional right. See generally Kucel v. N.M. Med. Review
9 Comm’n, 2000-NMCA-026, ¶ 12, 128 N.M. 691, 997 P.2d 823 (indicating that the
10 constitutional right to one appeal in civil cases applies such that aggrieved parties may
11 appeal from final orders); Thornton v. Gamble, 1984-NMCA-093, ¶¶ 11-13, 101 N.M.
12 764, 688 P.2d 1268 (explaining and applying principles of finality in the context of
13 domestic relations actions). We therefore conclude that the argument is not viable, and
14 accordingly we deny the motion to amend. See State v. Moore, 1989-NMCA-073,
15 ¶ 42, 109 N.M. 119, 782 P.2d 91 (indicating that motions to amend docketing
16 statements will not be granted if the issues are not viable), superceded by rule on other
17 grounds as recognized in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817
18 P.2d 730.

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1 {3} We turn next to the jurisdictional issue originally presented. As we observed in
2 the notice of proposed summary disposition, [CN 2-3] the district court’s
3 determination is supported by the fact that Child and Mother have lived in Nebraska
4 since 2014, and by the fact that Father moved to California in 2017 and sold his
5 Albuquerque residence in 2018. Accordingly, by the time the district court took up
6 the request for a permanent custody order in 2019, it had been many months, if not
7 years, since Father, Mother, or Child resided in New Mexico. This undisputed state
8 of affairs precipitated the district court’s conclusion, pursuant to NMSA 1978, Section
9 40-10A-202(a)(2) (2001), that it no longer retained exclusive continuing jurisdiction.
10 We perceive no error.
11 {4} In his memorandum in opposition Father focuses on the inefficiencies
12 associated with the cost of pursuing litigation for years in this state, without obtaining
13 a final appealable determination on the disputed custody issue prior to the district
14 court’s loss of jurisdiction. [MIO 16-24] Although we acknowledge Father’s
15 frustration, it does not alter our analysis. “At this stage of this case, the jurisdictional
16 standards are at issue, and we apply the UCCJEA jurisdictional provisions to reach a
17 decision.” State ex rel. Children, Youth & Families Dep’t v. Donna J.,

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1 2006-NMCA-023, ¶ 19, 139 N.M. 131, 129 P.3d 167. The courts of this state cannot
2 simply disregard the jurisdictional limitations imposed by the UCCJEA.
3 {5} We understand Father to further suggest that the district court engaged in some
4 sort of impermissible gamesmanship or wrongdoing by entering temporary orders,
5 declining his requests to bifurcate the proceedings, and then failing to enter a final
6 appealable decision prior to its loss of jurisdiction. [MIO 16-24] However, the record
7 before us reflects that the highly disputed custody issues in this case did not lend
8 themselves to rapid resolution, and the district court’s failure to enter the anticipated
9 final custody order was the product of both the parties’ relocations out-of-state, and
10 the sudden, unanticipated resignation of the presiding district court judge. We
11 therefore decline either to infer misconduct under the circumstances presented, see
12 generally State ex rel. Alfred v. Anderson, 1974-NMSC-101, ¶ 6, 87 N.M. 106, 529
13 P.2d 1227 (explaining that “we indulge every presumption in support of the
14 correctness and regularity” of the decisions rendered by the trial courts and that
15 “[e]very reasonable intendment and presumption are resolved in favor of the
16 proceedings and judgment[s]” in those courts), or to arrive at a different conclusion
17 on the jurisdictional issue based upon Father’s perception of the equities.
18 {6} Accordingly, for the reasons stated, we affirm.

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1 {7} IT IS SO ORDERED.
2
3 JULIE J. VARGAS, Judge
4 WE CONCUR:
5
6 JACQUELINE R. MEDINA, Judge
7
8 ZACHARY A. IVES, Judge