Opinion
A-1-CA-40342
01-09-2024
THELONIKA MCCOLLUM, Petitioner-Appellant, v. JASON SHOBERG, Respondent-Appellee.
Thelonika McCollum Santa Fe, NM Pro Se Appellant McElhinney Law Firm LLC C.J. McElhinney Las Cruces, NM for Appellee
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Robert Lara, District Court Judge
Thelonika McCollum
Santa Fe, NM
Pro Se Appellant
McElhinney Law Firm LLC
C.J. McElhinney
Las Cruces, NM
for Appellee
DECISION
MEGAN P. DUFFY, JUDGE
{¶1} Thelonika McCollum (Mother) appeals from a district court order granting Jason Shoberg (Father) a modified period of custody as a temporary amendment to the parties' joint custody agreement. We affirm.
BACKGROUND
{¶2} The parties underwent divorce and custody proceedings in the Third Judicial District Court beginning in 2016. In the course of those proceedings, Mother and Father agreed to a joint custody arrangement where they would exchange custody of the children at the end of each semester of school.
{¶3} On December 6, 2021, Mother filed a motion to amend or modify the custody order, and another motion to enforce the current custody order. Mother's motion to modify requested that going forward, she be granted custody of the children during the school year. She also alleged that Father had allowed the children to spend four nights a week at his mother's house, where criminal activity had occurred, and that he had failed to ensure the children received adequate dental care. In her motion to enforce, Mother asked the court to hold Father in contempt for various violations of the current custody order, including that Father allegedly interfered with Mother's ability to communicate with the children's doctor.
{¶4} Mother had physical custody of the children at the time she filed the motions. Later that month, at the conclusion of the fall semester on December 28, 2021, Father drove from Las Cruces to Santa Fe to pick up the children. Mother refused to transfer custody of the children to Father. The following day, on December 29, 2021, Mother filed a domestic violence petition in the First Judicial District Court in Santa Fe and was granted a temporary order of protection against Father. The order gave Mother temporary physical custody of the children.
{¶5} On January 11, 2022, Father filed an expedited motion to enforce the custody agreement in the Third Judicial District Court, seeking an order requiring Mother to return the children to him immediately. Mother responded by stating her reasons for refusing to transfer custody of the children to Father and for seeking the protective order, and went on to restate the concerns noted in her motion to modify the custody order, i.e., that when the children were in Father's custody, he would leave them in the care of relatives who were convicted of drug-related and violent felonies and that Father had failed to schedule or keep the children's dental appointments. Mother later filed an additional motion for temporary order asking the district court in this case to grant Mother custody of the children through the end of the spring semester and change the venue for the custody proceedings to the First Judicial District Court. Finally, Mother filed a motion for sanctions after Father's attorney wrote a letter to the chief judge of the Third Judicial District, advising that there were expedited motions pending that had not been set for hearing due to the retirement of the presiding judge, and asking that the case be reassigned to another district judge or a pro tem judge.
{¶6} The case was reassigned, and the district court heard all of the pending motions on March 23, 2022. The district court ultimately granted the majority of the relief requested by Mother, ordering that Father must undergo drug testing; that Father refrain from drinking alcohol while the children are with him; and that childcare no longer be conducted at his mother's house, where the alleged criminal activity was occurring. The district court also ordered that both parents must ensure that the children attend all dental, orthodontic, and medical appointments.
{¶7} Regarding custody, the district court ordered that both parents "shall continue to have joint legal custody of minor children," but that Father "shall be allowed to make up his days that were missed during his designated period of responsibility." The court determined that the children would stay with Mother until the end of May, and after that, Father would have physical custody through the end of the fall semester. The district court declined to make any permanent changes to the custody order, concluding that "[t]here has been no substantial change in circumstances to justify a modification in the parties' current timeshare." The court set another hearing later in the year "to determine a future timeshare schedule if the parties are unable to reach an agreement." Mother appeals.
DISCUSSION
{¶8} Mother asks that this Court (1) reverse the district court's order and remand for a new evidentiary hearing, and (2) transfer the case to a new venue with a family court clinic. As an initial matter, this Court is not authorized to change the venue of an active, pending case, and we are therefore unable to grant Mother's second request for relief. See NMSA 1978, § 40-10A-202 (2001) (providing that the court that has made the custody determination retains exclusive, continuing jurisdiction over the determination).
{¶9} The remainder of Mother's argument is directed at the district court's temporary modification of the custody order. Mother makes several claims, two of which we address summarily: (1) that the district court did not give her pro se pleadings equal consideration, and (2) that she "was not granted any visitation or contact with the parties' children in the resulting order." On her first claim, we note that Mother prevailed on a number of the issues raised in her pro se pleadings, and she has neither directed us to any part of the record nor made any legal argument in support of her contention that her pleadings were not given due consideration. State v. Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226, 247 P.3d 1111 (stating that "this Court has no duty to review an argument that is not adequately developed"). Regarding her second claim, the district court stated it would set a judicial review to occur in June 2022 "to set [Mother's] summer visitation schedule and to determine a future timeshare schedule if the parties are unable to reach an agreement." This appeal was filed before the June 2022 proceedings and any issues arising therefrom are not presently before us. Regardless, Mother has not demonstrated error in the district court's decision to allow the parties an opportunity to work out the summer timeshare before conducting further proceedings on the matter.
{¶10} Mother also argues that the district court demonstrated bias in its decision-making, failed to enforce the temporary order of protection against Father, and otherwise abused its discretion in its determination. Father argues that the issues raised in this appeal are moot, substantial evidence supported the district court's order, and the district court did not abuse its discretion.
{¶11} First, Mother appears to argue that the district court's decision to equalize the timeshare was motivated by bias and an intent to punish Mother for seeking the order of protection. To allege a cognizable claim of judicial bias, "[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United Nuclear Corp. v. Gen. Atomic Co., 1980-NMSC-094, ¶ 418, 96 N.M. 155, 629 P.2d 231 (internal quotation marks and citation omitted). "[A]dverse rulings against a party, without more, do not support a conclusion that a district judge is biased." State v. Gage, __-NMSC-__, ¶ 17, __P.3d __(S-1-SC-39142, May 22, 2023). We perceive no allegations of bias from Mother beyond the ruling itself, and this is insufficient to demonstrate that the district judge's decision was affected by bias against Mother.
{¶12} Mother also appears to suggest that the temporary modification of the custody order was in error because the temporary protective order she obtained in the First Judicial District Court granted temporary custody to Mother and required Father to stay away from the children. However, even when an order of protection is granted, the Family Violence Protection Act specifies that "the [district] court may enter an initial order of protection, but the portion of the order dealing with child custody . . . will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action." NMSA 1978, § 40-13-5(D) (2019). Mother conceded this at the hearing. Thus, the district court in this case had the authority to issue orders regarding custody of the children, even though the temporary protective order gave Mother temporary physical custody of the children.
{¶13} As for the district court's substantive decision that Mother had willfully failed to return the children to Father and that Father shall be allowed to make up the days that were missed, Mother has not demonstrated that the district court's decision was unsupported by substantial evidence or that the court abused its discretion. While Mother argues that the court's order fails to uphold the best interest standard, fails to define the basic requirements of a custody plan, and fails to consider the factors relevant to a determination of joint custody, we note that the district court had already approved a joint custody plan in 2020 and the motions at issue in this appeal simply asked the court to enforce the existing plan. Mother has not otherwise shown how the district court's effort to equalize the timeshare between parents who share joint custody of the children amounts to an abuse of discretion under the circumstances.
{¶14} Mother's briefing contains additional points of objection regarding her motion for sanctions, that the hearing was conducted telephonically, and that she "[was] unable to argue to admit evidence based on the fact she is not an attorney." Other than to note her objection and intent to appeal, Mother has not offered any argument regarding these matters or indicated why they would require a reversal and rehearing. See Gonzales, 2011-NMCA-007, ¶ 19.
CONCLUSION
{¶15} For the foregoing reasons, we affirm.
{¶16} IT IS SO ORDERED.
WE CONCUR: ZACHARY A. IVES, Judge MICHAEL D. BUSTAMANTE, Judge, Retired, Sitting by designation