1997 -NMCA- 77, Barnae v. Barnae

• Decision Date: 05 May 1997
• Docket Number: No. 17704,17704
• Citation: 123 N.M. 583,1997 NMCA 77,943 P.2d 1036
• Parties: , 1997 -NMCA- 77 Daphne E. BARNAE, a/k/a Daphne Marchant-Schumacher, Petitioner-Appellee, v. Mary Elizabeth BARNAE, a/k/a Mary Elizabeth Marchant-Schumacher, a/k/a Mary Elizabeth Schumacher, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 1036

943 P.2d 1036

123 N.M. 583, 1997 -NMCA- 77

Daphne E. BARNAE, a/k/a Daphne Marchant-Schumacher, Petitioner-Appellee, v. Mary Elizabeth BARNAE, a/k/a Mary Elizabeth

Marchant-Schumacher, a/k/a Mary Elizabeth

Schumacher, Respondent-Appellant.

No. 17704.

Court of Appeals of New Mexico.

May5, 1997.

Certiorari Denied Aug. 6, 1997.

[123 N.M. 584] Ruth B. Cohen, Albuquerque, for Petitioner-Appellee.

Stevan Douglas Looney, Calvert, Crider & Bingham, P.C., Albuquerque, for Respondent-Appellant.

Kathryn D. Kendell, Shannon Minter, National Center For Lesbian Rights, San Francisco, CA, Renata M. Sos, Laura B. Gowen, Heller, Ehrman, White & McAuliffe, San Francisco, CA for Amicus Curiae.

OPINION

PICKARD, Judge.

¶1 This matter comes before us on an interlocutory appeal to address whether the district court properly found that: (1) it had jurisdiction under the New Mexico Child Custody Jurisdiction Act, NMSA 1978, §§ 40-10-1 to -24 (Repl.Pamp.1994) (NMCCJA), and (2) it should exercise that jurisdiction despite an allegation of inconvenient forum. The parties lived together in California for ten years in a lesbian relationship, during which they both contributed to the upbringing of two children. Appellant is the children's biological mother (Biological Mother). After the relationship ended, Biological Mother came to New Mexico. Petitioner followed soon after, and filed an action, petitioning for custody. The district court held that it had jurisdiction under Sections 40-10-4(A)(2) and (4). We hold that the district court could properly find that it had jurisdiction under Section 40-10-4(A)(2) because of Biological Mother's and the children's significant contacts with New Mexico and because there was substantial evidence here regarding the care of the children. We also hold that the district court was not required to find that New Mexico was an inconvenient forum. We therefore affirm.

BACKGROUND

¶2 Shortly after the birth of her first child in 1986, Biological Mother began a lesbian relationship with Petitioner. Biological Mother, Petitioner, and the child began living together in the same house. In 1991, Biological Mother conceived a second child through artificial insemination. Petitioner never legally adopted, or sought to adopt, the children. Nevertheless, all four lived together in the same house, excluding brief separations, until August of 1995, when Petitioner permanently left Biological Mother's household. During the time the parties lived together, Petitioner was the children's primary caretaker.

¶3 In 1992, the parties took part in a "commitment ceremony" in California. They dispute, however, whether they used the occasion to enter into a binding contract concerning their rights and duties regarding the children.

¶4 After Petitioner moved out, the children continued to live with Biological Mother. Mediation failed to help the parties reach an agreement concerning visitation of the children, and the parties' relationship deteriorated further. Biological Mother alleges that Petitioner began to appear at Biological Mother's home unannounced and uninvited, and that Petitioner engaged in "stalking-like behavior" in following the children to and from school.

¶5 Then, in January 1996, Biological Mother and the children came to New Mexico, apparently to obtain a reprieve from Petitioner. The parties dispute whether Biological Mother intended to return to California. She moved furnishings from her California household, such as a refrigerator, washer, dryer, and her bed. She had a garage sale and sold items she was not taking to New Mexico. Biological Mother informed a mutual friend that it was her intention to continue to live in New Mexico for a lengthy period of time. Once in New Mexico, Biological Mother stayed with a friend in Rio Rancho from late January 1996 to late February 1996. She rented an apartment in Rio Rancho on a month-to-month basis and enrolled her older child in school. According to Petitioner, Biological Mother told Petitioner that New Mexico was better for the children because they could play outside, they had neighbors, and the older child liked his school. Biological Mother kept her California driver's license and vehicle registration, as well as her California medical insurance and bank accounts.

¶6 On March 12, 1996, Petitioner served Biological Mother with a petition for custody and timesharing and with an ex parte restraining order (TRO). The TRO prevented Biological Mother from removing the children or causing them to be removed from Sandoval County. Biological Mother had been physically present in New Mexico for approximately a month and a half when she was served with the petition and TRO.

¶7 Biological Mother returned to California in early June 1996, where she stayed, in violation of the district court's order that allowed her to go to California for only three weeks. Biological Mother then initiated an action in a California court seeking a determination of parental relationship and child custody there.

¶8 After several hearings, which included a telephone discussion between the district court and the California court to determine whether New Mexico or California had jurisdiction, the district court ultimately found that New Mexico had subject matter jurisdiction. The district court considered the issue of jurisdiction on more than one occasion. In both his order of June 14, 1996, and, upon reconsideration, his order of August 16, 1996, the district judge found that New Mexico had jurisdiction and was not an inconvenient forum. The district court based its finding of jurisdiction on Biological Mother's having established residence in New Mexico and moving from California; on her enrolling her older child in school here; and on the fact that she did not leave New Mexico until Petitioner filed the petition for custody and timesharing, such that Biological Mother would still be here if not for the petition.

¶9 Though the district court's order did not explicitly say how the particular facts satisfied the particular sections of the NMCCJA, it appears that the court found these facts to satisfy Section 40-10-4(A)(2)(a) and (b) (significant connection and available evidence). It also found jurisdiction under Section 40-10-4(A)(4)(a) and (b) (no other state has jurisdiction and child's best interest) and that New Mexico was a convenient forum under Section 40-10-8(A). The court reasoned that it was not in the children's best interest to relinquish jurisdiction, based on California not having subject matter jurisdiction to hear Petitioner's claims, and because of the purposes of the NMCCJA.

¶10 The district court found that California apparently lacked jurisdiction because the California court, with whom he conferred, understood the case law there to grant no standing to lesbians who are not biological parents to claim parental rights. As a result the California court felt it would have no alternative but to dismiss the case. See Nancy S. v. Michele G., 228 Cal.App.3d 831, 279 Cal.Rptr. 212, 215 n. 2 (1991) (lesbian who was not biological mother of child was not a parent within the meaning of California's Uniform Parentage Act and thus could not assert right to custody or visitation under the Act); Curiale v. Reagan, 222 Cal.App.3d 1597, 272 Cal.Rptr. 520, 522 (1990) (court had no "jurisdiction" where lesbian who was not biological parent had no standing to assert parental rights). New Mexico, however, has held that a person in a situation similar to Petitioner's made a colorable claim of standing to assert a legal right to some type of continuing relationship with a child. See A.C. v. C.B., 113 N.M. 581, 586, 829 P.2d 660, 665 (Ct.App.) (non-biological parent figure who alleged coparenting agreement and agreement settling claims of timesharing and custody made prima facie case for relief), cert. denied, 113 N.M. 449, 827 P.2d 837 (1992). Because we determine that the district court could properly find jurisdiction in New Mexico under Section 40-10-4(A)(2), we do not address whether there was proper jurisdiction under Section 40-10-4(A)(4) of the NMCCJA.

DISCUSSION

Standard of Review

¶11 On appeal we will not disturb the trial court's factual findings that are supported by substantial evidence. See Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 627, 916 P.2d 822, 827 (1996). We review the trial court's conclusions of law de novo. See id.

Jurisdiction

¶12 We address three preliminary issues at the outset. First, we emphasize that the facts relevant to a determination of jurisdiction are those which existed at the time the petition was filed. See In Interest of A.E.H., 161 Wis.2d 277, 468 N.W.2d 190, 200 (1991) (jurisdictional requirements of UCCJA must be met only at commencement of custody proceedings in state); see also Simpkins v. Disney, 416 Pa.Super. 243, 610 A.2d 1062, 1064 (1992) (determination of jurisdiction must be made at time of commencement of instant proceeding); State in Interest of D.S.K., 792 P.2d 118, 125 n. 6 (Utah.Ct.App.1990) (where mother removed herself and children from Utah before trial to modify custody decree, circumstances determining jurisdiction under child's "home state" were those at time petition to modify decree was filed). Biological Mother's choice to go to California and stay there in violation of the district court's order did not operate to divest the district court of jurisdiction it rightly had at the initiation of the action on March 7, 1996. Any other conclusion would conflict with the purposes of the NMCCJA. See Section 40-10-2(E) (purpose to deter unilateral removals of children undertaken to obtain custody awards).

¶13 Second, compliance with any one of the four prerequisites of Section 40-10-4(A) satisfies the jurisdictional requirement. Olsen v. Olsen, 98 N.M. 644, 647, 651 P.2d 1288, 1291 (1982). Thus, if the facts of this case satisfy any of the four prerequisites, the district court properly had...