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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 SUNITA MOOLA,

 3          Petitioner-Appellant,

 4 v.                                                                                  NO. 30,290

 5 SURJIT MOOLAMALLA,

 6          Respondent-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 James T. Martin, District Judge

 9 Atkinson & Kelsey, P.A.
10 Thomas C. Montoya
11 Albuquerque, NM

12 for Appellant

13 Michael L. Stout
14 Las Cruces, NM

15 for Appellee


16                                 MEMORANDUM OPINION

17 VIGIL, Judge.
 1        Wife appeals from Husband’s acquittal of criminal contempt. Concluding that

 2 Wife does not have standing, we dismiss the appeal.

 3 BACKGROUND

 4        Husband and Wife were involved in a civil domestic violence proceeding filed

 5 in February 2008, in which an order of protection was entered against Husband. Wife

 6 subsequently filed an affidavit alleging Husband had violated the order of protection,

 7 and a domestic violence special commissioner heard evidence regarding the allegation

 8 on April 3, 2008. The special commissioner found that Husband violated the order

 9 of protection and recommended that the district court adopt its finding and impose a

10 deferred sentence of twenty-four hours incarceration. On April 4, 2008, the district

11 court signed a minute order prepared by the special commissioner that included these

12 findings and ordered that “Respondent/Petitioner appear before a District Court Judge

13 to answer as to why he/she should not be sanctioned for failure to obey a court order.”

14 However, a hearing was not scheduled pursuant to the order.

15        Fourteen months later, after motions were filed by both parties regarding the

16 pending matter, the district court entered its order directing that a de novo trial be held

17 on the alleged contempt. In the order, the district court also directed Wife to prosecute

18 the matter and prove the violation under the criminal standard of beyond a reasonable

19 doubt. Wife objected to the court’s directive that she prosecute the action, and


                                                2
 1 maintained that the court had lost jurisdiction due to the passage of time which had

 2 passed since the minute order was signed. The district court disagreed.

 3        A de novo bench trial was held on December 14, 2009. Wife presented no new

 4 evidence at the trial and relied exclusively on the testimony from the April 3, 2008

 5 hearing before the special commissioner. Husband likewise presented no additional

 6 evidence. After considering the testimony presented at the April 3, 2008 hearing, the

 7 district court concluded the evidence was insufficient to establish a violation of the

 8 order of protection beyond a reasonable doubt. Thus, a verdict of acquittal in

 9 Husband’s favor was entered.

10        Wife appeals Husband’s acquittal, arguing that the district court lost jurisdiction

11 to hear the contempt proceeding and erred in requiring her to prosecute the charges

12 against Husband. On appeal, Wife seeks reinstatement of the special commissioner’s

13 finding that Husband violated the order of protection.

14 ANALYSIS

15        We address on our own whether Wife has standing to assert the issues she raises

16 on appeal. See St. Sauver v. N.M. Peterbilt, Inc., 101 N.M. 84, 87, 678 P.2d 712, 715

17 (Ct. App. 1984) (dismissing an appeal where a party was not an “aggrieved party” to

18 the underlying lawsuit).




                                               3
 1        Our Supreme Court recently clarified the analysis of the issue of standing and

 2 its effect on subject matter jurisdiction in New Mexico proceedings. ACLU of N.M.

 3 v. City of Albuquerque, 2008-NMSC-045, 144 N.M. 471, 188 P.3d 1222.

 4 Specifically, the Court noted that “standing may be a jurisdictional matter when a

 5 litigant asserts a cause of action created by statute.” Id. ¶ 9 n.1. “When a statute

 6 creates a cause of action and designates who may sue, the issue of standing becomes

 7 interwoven with that of subject matter jurisdiction.” Id. (internal quotation marks and

 8 citation omitted).     Under these circumstances, “[s]tanding then becomes a

 9 jurisdictional prerequisite to an action.” Id. (internal quotation marks and citation

10 omitted). Our Courts have long recognized that when the issue of standing is

11 considered jurisdictional, it “may not be waived and may be raised at any stage of the

12 proceedings, even sua sponte by the appellate court.”             Gunaji v. Macias,

13 2001-NMSC-028, ¶ 20, 130 N.M. 734, 31 P.3d 1008 (internal quotation marks and

14 citation omitted); Alvarez v. State Taxation & Revenue Dep’t, 1999-NMCA-006, ¶ 6,

15 126 N.M. 490, 971 P.2d 1280; Armijo v. Save ’N Gain, 108 N.M. 281, 282, 771 P.2d

16 989, 990 (Ct. App. 1989).

17        Our statutes governing appeals from contempt proceedings specifically provide

18 that “any person convicted of criminal contempt” may appeal, while “any person

19 aggrieved” may appeal from a civil contempt proceeding. NMSA 1978, § 39-3-15(A)


                                              4
 1 (1966) (“Any person aggrieved by the judgment of the district court in any proceeding

 2 for civil contempt, and any person convicted of criminal contempt . . . may appeal

 3 within thirty days from the judgment of conviction to the supreme court or the court

 4 of appeals, as appellate jurisdiction may be vested by law in these courts.”).

 5        We addressed this statutory distinction in Kucel v. New Mexico Medical Review

 6 Commission, 2000-NMCA-026, 128 N.M. 691, 997 P.2d 823. Kucel involved a case

 7 of civil contempt brought by a petitioner who sought the enforcement of a writ of

 8 mandamus granted by the district court compelling the director of the Medical Review

 9 Commission to submit the petitioner’s claims to a panel hearing. Id. ¶¶ 7-9. The

10 director sent a redacted form of petitioner’s claims to the panel after the district court

11 entered its order, and the petitioner moved the court for an order to show cause why

12 the director should not be held in contempt for violating the order. Id. ¶¶ 8-9. The

13 district court denied the motion to show cause. Id. ¶ 9. The petitioner appealed, and

14 in examining whether the petitioner was an aggrieved party under the statute with the

15 right to appeal we stated, “[w]e view the statutory distinction between ‘any person

16 aggrieved’ (in the case of proceedings for civil contempt) as opposed to ‘any person

17 convicted’ (in the case of criminal contempt) as an indication of the Legislature’s

18 intention to extend the right of appeal in civil contempt proceedings to persons such




                                               5
 1 as [the p]etitioner who have unsuccessfully sought enforcement of an order through

 2 a contempt proceeding.” Id. ¶¶ 11-13.

 3        Thus, while Wife might have standing to appeal from a civil contempt

 4 adjudication, neither party argues on appeal that the district court improperly treated

 5 this as a criminal contempt proceeding rather than a civil contempt proceeding. See

 6 State ex rel. Bliss v. Greenwood, 63 N.M. 156, 159, 315 P.2d 223, 225 (1957)

 7 (“Where the primary purpose is to preserve the court’s authority and to punish for

 8 disobedience of its orders, the contempt is criminal. Where the primary purpose is to

 9 provide a remedy for an injured suitor and to coerce compliance with an order, the

10 contempt is civil.”). Nor does Wife argue that the district court erred in failing to

11 conduct a separate civil contempt proceeding. Rather, Wife only asserts errors in the

12 procedure and jurisdiction of the district court in adjudicating the criminal contempt

13 action against Husband.

14        Husband was ordered to show cause in a criminal contempt proceeding on

15 allegations that he violated the order of protection. Husband was acquitted of those

16 charges. Wife now asserts appellate rights resulting from alleged errors in the

17 procedure in the adjudication of the criminal contempt action against Husband. No

18 language in the statute permits a third party, such as Wife in this case, to appeal the

19 acquittal of another for criminal contempt. See § 39-3-15. Our statute plainly states


                                              6
 1 that in cases of criminal contempt, the rights of appeal lie in the individual convicted

 2 of that contempt. See id. Thus, we decline to reach any of Wife’s arguments as they

 3 arise from alleged errors in the contempt proceedings solely against Husband, and

 4 Wife is not an aggrieved party under Section 39-3-15.

 5        Although we are declining to reach Wife’s arguments, we would like to

 6 comment on the procedure used by the district court. NMSA 1978, Section 40-13-

 7 3.1(A) (2011) directs that an alleged victim of domestic abuse such as Wife “shall not

 8 be required to bear the cost of . . . the prosecution of a misdemeanor or felony offense

 9 arising out of an incident of domestic abuse.” We are concerned that the district court

10 required Wife to prosecute the case against Husband. Having noted this, however, we

11 observe that the same evidence that was presented to the special commissioner was

12 presented at the de novo trial, and Husband presented no additional evidence.

13 Accordingly, the record before the district court was the same as before the

14 commissioner.      Although there might have been a procedural error, the record

15 demonstrates that Wife’s allegations were considered and Husband had an opportunity

16 to respond. Based on this, the district court determined that there was insufficient

17 evidence to convict Husband of violating the protective order and acquitted him.

18 From this determination, there is no appeal under Section 39-3-15.

19 CONCLUSION


                                              7
1      The appeal is dismissed.

2      IT IS SO ORDERED.


3                                     ______________________________
4                                     MICHAEL E. VIGIL, Judge

5 WE CONCUR:



6 _________________________________
7 CELIA FOY CASTILLO, Chief Judge



8 _________________________________
9 TIMOTHY L. GARCIA, Judge




                                  8
