Alfieri v. Alfieri

• Decision Date: 06 January 1987
• Docket Number: No. 9403,9403
• Parties: Thomas Gerard ALFIERI, Petitioner-Appellee, v. Christine Ann ALFIERI, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 4

733 P.2d 4

105 N.M. 373

Thomas Gerard ALFIERI, Petitioner-Appellee, v. Christine Ann ALFIERI, Respondent-Appellant.

No. 9403.

Court of Appeals of New Mexico.

Jan. 6, 1987.

[105 N.M. 374] Thomas C. Montoya, Atkinson & Kelsey, P.A., Albuquerque, for petitioner-appellee.

Calvin Hyer, Jr., Albuquerque, for respondent-appellant.

OPINION

DONNELLY, Judge.

Appellant appeals from a judgment of the trial court continuing child custody placement with her contingent upon her returning to New Mexico from California with her minor daughter and complying with child visitation awarded to appellee, her former husband, as provided by the court's prior order. On appeal, the mother raises six contentions which we group and jointly discuss as follows: (1) legality of restricting relocation of minor child; (2) claim of error in the trial court's adoption of findings of fact; and (3) whether the trial court's order is supported by substantial evidence. Other issues raised in the docketing statement but not briefed are deemed abandoned. State v. Doe, 99 N.M. 456, 659 P.2d 908 (Ct.App.), cert. denied, 99 N.M. 477, 660 P.2d 119 (1983). We affirm.

This case involves a turbulent history. During their marriage, the parties had one child, a daughter. The child was approximately two years old when the marriage was dissolved on January 20, 1984. Following the divorce, the father remarried. Thereafter, the mother filed a motion for an order to show cause, requiring the father to show why he should not be held in contempt for failing to pay child support in a timely manner. The trial court ordered the father to pay child support in the amount provided in the agreement and to make monthly payments on arrearages.

In January 1985, the father obtained an order to show cause why the mother should not be held in contempt of court for failing to comply with his rights to visit and communicate with the child and to advise the father "as to the health, welfare and whereabouts" of his daughter. The trial court also referred the parties to the court clinic for evaluation and mediation of this issue. After a hearing, the court entered an order providing for the father's child visitation rights and specifically detailing the dates and times when he was permitted to visit his daughter. The April 4, 1985, order provided, among other things, for weekly visitation by the father, two-month summer visitation periods, and alternate visitation schedules on Thanksgiving and Christmas holidays. The order also directed that the parties keep each other informed as to the address of the child and recited that noncompliance with the visitation schedule could subject a party to contempt of court.

In August 1985, the mother secretly moved to California and took her daughter with her without notifying her former husband of the proposed move or the child's new address. Thereafter, both parties filed motions in the district court: the father moved for change of child custody and the mother sought to terminate or to modify the father's rights of child visitation.

After a hearing on the merits, the trial court adopted findings of fact providing, inter alia, that prior to removing the child from this state, the mother did not inform the father of her intent to move to California, nor of the child's new address or phone number in California; that the minor child has a very close attachment to her father and that the two have a good father-daughter relationship; that the mother moved from New Mexico, "in part, to avoid dealing with [the father] regarding [the child], and, in part, to interfere with and diminish [the father's] parent/child relationship"; that the mother's action in removing the child from the possibility of weekly contact with her father was not in the child's best interest; and that removal of the child from New Mexico to California "was detrimental to [the child's] welfare."

Based upon its findings, the trial court concluded in part that:

2. If [the mother] moves to Albuquerque, New Mexico, she will retain sole custody as provided in the Final Decree and [the father] will have visitation as provided in the Court's April 4, 1985, order;

3. If [the mother] decides not to move to Albuquerque, New Mexico, then the parties are awarded joint legal custody of [the child], with [her] principal place of residence placed with [the father] [.]

The trial court also concluded that because the mother's moving the child to California "was done primarily to interfere with and diminish [the father's] contact and relationship with [his daughter], New Mexico law allows for a change of custody from the mother to the father." The court further concluded that it would order a change of child custody only if the mother persisted in her decision to remain in California, and that if she persisted in her efforts to interfere with and diminish the father's relationship with the child of the parties, this conduct "in turn render[s] her a less fit parent than is the father...."

I. RESTRICTION OF RIGHT TO TRAVEL

At the heart of the mother's appeal is her contention that the trial court's order providing for joint custody and requiring her to give physical custody of her child to the father unless she returns to this state, in actuality seeks to adjudicate the place where the mother must reside; the mother argues this is an unlawful infringement upon her right to travel or to relocate.

The Supreme Court has recognized that the right of an individual to travel freely throughout other states or territories is secured by the United States Constitution. E.g., Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941). This constitutionally-protected right to travel has been extended to invalidate laws which impede the individual's right to travel or which discourage the exercise of this right. Shapiro v. Thompson.

Although recognizing the right of a divorced parent who has been awarded custody of a minor child to relocate, state courts have generally upheld judicial restrictions or limitations upon removing a child from the jurisdiction in cases where the relocation is determined to be contrary to the best interests and welfare of the child. See Garcia v. Garcia, 81 N.M. 277, 466 P.2d 554 (1970); Urzua v. Urzua, 67 N.M. 304, 355 P.2d 123 (1960); see also Johnson v. Johnson, 455 So.2d 1332 (Fla.App.1984); Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (App.1985); Carlson v. Carlson, 8 Kan.App.2d 564, 661 P.2d 833 (1983); Meier v. Meier, 286 Or. 437, 595 P.2d 474 (1979); Spitzer, Moving and Storage of Postdivorce Children: Relocation, The Constitution and The Courts, 1985 Ariz.St.L.J. 1; Hoffman, Restrictions on a Parent's Right to Travel in Child Custody Cases: Possible Constitutional Questions, 6 U.D.L.R. 181 (1973). In the Annotation in 154 A.L.R. 552, 556 (1945), it is noted:

The general rule that in matters affecting the custody of a child the court will be governed primarily by the welfare and best interests of the child applies in determining whether the court will award custody to a nonresident or grant or refuse permission to remove a child from the jurisdiction in a divorce or separation case.

See also Annots., 15 A.L.R.2d 432 (1951); 30 A.L.R.4th 548 (1984).

In Garcia, the the New Mexico Supreme Court confirmed the "best interests of the child" rule, but recognized that the right of a custodial parent to relocate should not be interfered with except where the move would clearly be contrary to the child's welfare. The court held:

the fact the parent with custody is a non-resident or about to become one, for whatever reason, [does not alter] the universal rule that the best interests of the child are paramount; that if those interests are best served by being with the mother, even though outside this jurisdiction, removal should be permitted.

Id., 81 N.M. at 279, 466 P.2d at 556. See also Urzua v. Urzua. In State v. Whiting, 100 N.M. 447, 449, 671 P.2d 1158, 1160 (Ct.App.1983), this court further observed that a parent's "natural right to custody includes the right to remove the child from this jurisdiction in the absence of any legal modification of that right."

As observed in Garcia and Urzua, the best interests of the child control the right of a custodial parent to remove a child from this jurisdiction and where a challenge to the right of a parent to move a child from the state is raised by the noncustodial parent, the decision of whether to grant the relocation is addressed to the sound discretion of the trial court based upon the child's best interest and welfare. See also Meier v. Meier.

Following entry of the initial decree of divorce, on April 4, 1985, the trial court entered an order modifying child visitation rights, thereby amplifying the father's rights to specific visitation. The order specified that the father was awarded visitation on alternating weekends from 4:30 p.m. Friday until Monday morning; each Wednesday from 4:30 p.m. until Thursday morning; on specified holidays; and for a two-month period during each summer. The order further recited that the failure of the parties to comply with the terms of the order may subject them to a ruling of contempt. Under these facts, the mother, as custodial parent, could not unilaterally abrogate the father's right to specific visitation with his daughter without court approval.

The trial court expressly determined that the parties' minor child has a close attachment to her father and that one of the mother's motives in relocating outside New Mexico was to diminish the father's parent-child relationship so as to deprive the child and her father of the interaction, society and visitation of the other. The court also found that restricting the child's contact with her father and removal from New Mexico to California "was detrimental" to...