411 P.3d 345 (N.M. 2018), S-1-SC-34789, Tue Thi Tran v. Bennett

Docket Nº:S-1-SC-34789
Citation:411 P.3d 345, 2018 -NMSC- 009
Opinion Judge:MAES, Justice.
Party Name:TUE THI TRAN, Petitioner-Petitioner, v. Robert G. BENNETT, Respondent-Respondent. and Clinton W. Demmon, Intervenor-Petitioner,
Attorney:Caren I. Friedman, Santa Fe, NM, for Petitioners. Law Office of Jane B. Yohalem. Jane B. Yohalem. Santa Fe, NM, for Respondent.
Case Date:January 04, 2018
Court:Supreme Court of New Mexico

This case involved three people who agreed to co-parent one minor Child: Tue Thi Tran (Mother); Clinton Demmon (Demmon), Child’s biological father and Mother’s current partner; and Robert Bennett (Bennett), who was married to Mother at the time of Child’s birth. In 2007, the parties entered into a memorandum of agreement that settled the issue of legal paternity in Demmon’s favor yet provided... (see full summary)


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411 P.3d 345 (N.M. 2018)

2018 -NMSC- 009

TUE THI TRAN, Petitioner-Petitioner,


Clinton W. Demmon, Intervenor-Petitioner,


Robert G. BENNETT, Respondent-Respondent.

No. S-1-SC-34789

Supreme Court of New Mexico

January 4, 2018

Page 346

[Copyrighted Material Omitted]

Page 347

[Copyrighted Material Omitted]

Page 348


Caren I. Friedman, Santa Fe, NM, for Petitioners.

Law Office of Jane B. Yohalem. Jane B. Yohalem. Santa Fe, NM, for Respondent.


MAES, Justice.

[¶ 1] This case involves three people who agreed to co-parent one minor child (Child): Tue Thi Tran (Mother); Clinton Demmon (Demmon), who is Child’s biological father and Mother’s current partner; and Robert Bennett (Bennett), who was married to Mother at the time of Child’s birth. In 2007, the parties entered into a memorandum of agreement that settled the issue of legal paternity in Demmon’s favor yet provided that all three adults were Child’s " co-parents." The district court adopted the memorandum of agreement as a stipulated order of the court. Disputes arose between the parties, and in 2012 the district court issued a parenting order that expressly awarded joint legal custody of Child to Mother, Demmon, and Bennett. The district court also held Mother and Demmon in contempt of court for violating the vacation and visitation provisions in the memorandum of agreement.

[¶ 2] On appeal, Mother and Demmon challenge the 2012 parenting order, arguing that Bennett is not Child’s father and that the district court erred by awarding custody to a non-parent. Mother and Demmon also contend that the district court abused its discretion by holding them in contempt of court.

[¶ 3] We conclude that the parties effectively settled the issue of paternity under the Uniform Parentage Act, NMSA 1978, Sections 40-11-1 to -23 (1986, as amended through 2004) (repealed 2009), when they entered into the memorandum of agreement and that the district court adjudicated the issue of paternity when it issued the stipulated order adopting the agreement. We therefore hold that Demmon is Child’s legal father. We further hold that the parties’ memorandum of agreement does not confer parental rights on Bennett, in addition to Child’s two legal parents. Finally, we vacate the contempt order for the reasons set forth in this opinion.


[¶ 4] Mother and Bennett got married in 1998 in Vietnam, Mother’s home country, and later moved to Santa Fe. While married to

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Bennett, Mother began a relationship with Demmon and became pregnant. During the pregnancy, Mother informed Bennett that Demmon might be the baby’s father. Despite doubt regarding whether Bennett was the biological father, Bennett’s name was entered on Child’s birth certificate when Child was born in May 2003. Mother and Child lived with Bennett until Child was nearly twenty-two months old. According to Mother, Demmon visited Mother and Child soon after Child’s birth and continued to visit Mother and Child when Bennett was not at home. In early 2005, Mother and Child moved into Demmon’s home, and the three have lived together as a family ever since.

[¶ 5] Mother filed for divorce in October 2006. Mother represented in her petition for dissolution of marriage that she and Bennett had no minor children. Bennett responded by filing an emergency motion asserting that he is Child’s father and that Mother had denied Bennett contact with Child. Bennett also filed a counterclaim, arguing that even if Demmon is Child’s biological father, Bennett was presumed to be Child’s legal father under the Uniform Parentage Act because he and Mother were married when Child was born. Bennett asked the district court to grant the divorce and to determine parenthood issues.

[¶ 6] In November 2006, Demmon filed a motion in Mother and Bennett’s divorce case, seeking to establish paternity. Demmon attached the results of a DNA (deoxyribonucleic acid) test which found a 99.8% probability that Demmon is Child’s biological father. Demmon asserted that Bennett was aware of the test results yet refused to undergo genetic testing or to have the birth certificate changed to reflect Demmon’s paternity. In December 2006, the district court granted Demmon’s unopposed motion to intervene in the case. The district court scheduled a hearing on Demmon’s paternity claim and gave Bennett two months to obtain a genetic test for himself, should he wish to do so.

[¶ 7] It appears from the record before this Court that the district court never held the paternity hearing because the parties, who were represented by counsel, settled the matter through mediation proceedings, resulting in a memorandum of agreement. The memorandum of agreement included a section labeled " Legal paternity" that required the modification of Child’s birth certificate " to indicate Clint Demmon as his biological father." The agreement also included a " Co-parentage" provision, stating that Child has three co-parents— [Mother, Demmon, and Bennett]. [Demmon and Mother] affirm that [Bennett] as a co-parent is part of [Child’s] life and deserves time and involvement with [Child]. All three will demonstrate through cooperative and supportive actions their shared primary concern for [Child’s] well-being. Each will encourage and support [Child’s] relationships with the others.

[¶ 8] The agreement further provided that Mother and Demmon would include Bennett in decisions related to Child’s health and education, with one vote to Bennett and two votes to Mother and Demmon, but that Bennett would not be expected to contribute financially to Child’s education or dental expenses. The agreement granted Bennett visitation with Child three days a week, plus additional time during extended school breaks. The agreement required the parties to meet each year to create a summer vacation schedule for Child. Finally, the agreement contemplated annual review and recognized that it " may be superseded by a more detailed Parenting Plan."

[¶ 9] The district court issued a stipulated order in October 2007 that adopted the memorandum of agreement as an order of the court. Consistent with the legal paternity provision in the agreement, the stipulated order required Bennett to " sign all necessary documentation to modify the birth certificate to indicate [Demmon] as [Child’s] biological father." Mother and Bennett finalized their divorce in November 2008. The divorce decree stated that " [t]he parties share responsibility for [Child], whose care and disposition are addressed and ordered in the [stipulated order]...."

[¶ 10] In August 2011, Mother and Demmon filed a motion for an order to show cause alleging that for three years in a row, Bennett had taken Child on a summer vacation without Mother and Demmon’s consent. They

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complained that Bennett had refused during the most recent trip to provide an itinerary or contact information and had not permitted Child to call Demmon. Mother and Demmon argued that Bennett’s conduct violated the visitation and vacation provisions in the agreement and asked the district court to terminate Bennett’s visitation rights and to hold him in contempt of court. The district court held a hearing in October 2011 and found that all three parties were responsible for generating conflict around Child’s summer vacation schedule. The court declined to hold Bennett in contempt of court.

[¶ 11] About three months later, Bennett filed a motion for an order to show cause, alleging that Mother and Demmon had violated the agreement by taking Child on a trip over Child’s winter break, thereby preventing Bennett’s court-ordered visitation time with Child. Following an evidentiary hearing, the district court found that the parties had attempted to communicate about winter break by passing letters in Child’s backpack but had failed to reach an agreement. The court further found that Mother and Demmon knew when they took Child on vacation that their trip interfered with Bennett’s visitation time. The court concluded that Mother and Demmon’s conduct constituted a knowing and willful violation of the 2007 stipulated order and held them in contempt of court. The court ordered that Mother and Demmon " shall be incarcerated for a period of fifteen (15) days, with said period of incarceration suspended until further order of the Court." The district court also ordered Mother and Demmon to pay Bennett’s reasonable attorney’s fees associated with the contempt proceedings. The district court subsequently awarded Bennett a total of $3,015.73 in attorney’s fees, costs, and gross receipts tax over Mother and Demmon’s objection to the sum.

[¶ 12] The district court issued an amended parenting order in December 2012. The order did not use the...

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