Allgood v. Orason
| Decision Date | 06 July 1973 |
| Docket Number | No. 9573,9573 |
| Citation | 511 P.2d 746,85 N.M. 260,1973 NMSC 61 |
| Parties | Eula Jean ALLGOOD, Plaintiff-Appellee, v. Roy O. ORASON, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
This action was brought by Eula Jean Allgood ('plaintiff') against Roy Orason ('defendant') in the District Court of Santa Fe County for modification of their California child custody order regarding visitation rights.
After trial to the court, the California decree was modified as to custody, visitation rights, and expenses, with a restraining order being placed on both parties. Defendant appeals.
The developments of this case, particularly the California battles over visitation, are rather remarkable even in the field of domestic relations. An interlocutory judgment of dissolution of marriage was entered by the Superior Court of California, County of Santa Clara in August 1970. Pursuant to stipulation, custody of the children was given to plaintiff subject to defendant's visitation rights. The judgment further provided that prior to permanent removal of either child from residence in California, the party so removing should secure the written consent of the other or a further order of the court.
The same restrictions were carried forward into the final judgment of dissolution entered in October 1970. But even prior to the entry of the final judgment, problems were arising concerning visitation. A hearing was held in September 1970 on a petition of plaintiff to permanently remove the children to Texas, and defendant's request for modification of the custody provisions and a contempt order against plaintiff. All relief sought by either party was denied in November 1970. By January, 1971, plaintiff was back in court with another petition, this time to define the visitation rights and to obtain permission to remove the children from the Bay area. An order was entered spelling out the visitation rights more fully, and permitting plaintiff to take the children out of California for vacations of up to one month.
On February 20, 1971 plaintiff married Mr. Allgood and two days later left California. The Allgoods and the children have resided in Santa Fe since February 25th of that year.
In April, 1971, we again find plaintiff in the Superior Court of California again seeking to loosen the restrictions on where she may keep the children and tighten the visitation rights. On May 28, 1971 the California court entered the order with which we are primarily concerned, and will call the 'California order.' Notable features of the order include:
1. A change in custody provisions. Custody was awarded jointly to the parents, with plaintiff having 'physical custody.'
2. An even more elaborate spelling out of defendant's visitation rights during school holidays and weekends, consuming in all about three pages of the order, and providing for the exercise of those rights both in California and in Santa Fe.
3. Provision for the sharing between the parties of certain expenses of the children's travel to California and return when the visitation rights are exercised there, and of defendant's travel expenses when they are exercised in New Mexico. This is the provision which precipitated this proceeding.
The California order was not appealed, nor has plaintiff sought to have it modified.
Following entry of the California order, defendant commenced a continuous effort to exercise his visitation rights, but with indifferent success. He was able to see his daughters only twice, once in California and once in New Mexico, being met with a barrage of excuses by, and passive resistance on the part of, the plaintiff. Although the record is not entirely clear, apparently defendant initiated a contempt proceeding in California. He claims that plaintiff secured a continuance of it and then filed this proceeding on November 3, 1971. So far as we know, there have been no further hearings in California since the order.
A good deal is said in the briefs about whether the California order was res judicata and should be given full faith and credit under U.S.Const. art. IV, § 1. The foundation of our law with respect to enforcement of foreign custody decrees was laid in Ex parte Mylius v. Cargill, 19 N.M. 278, 142 P. 918 (1914). Mylius was a habeas corpus proceeding by the father to enforce a Texas decree giving custody rights to both the mother and the father and prohibiting the removal of the children from the State of Texas without consent of the court. The mother had removed the children to New Mexico without consent of the court and had thereby deprived the father of his custody rights. In determining whether the Texas decree was entitled to full faith and credit, this court said:
"Under (the full faith and credit clause of) our national Constitution, this order is plainly a record to which, if the court has jurisdiction, the same faith and effect permitted it in the state of its rendition must be given in every other state. And the true rule in the state of its rendition is that it is res judicata concluding the question. But it does not conclude the question for all time, since new facts may create new issues * * *'. 2 Bishop on Marriage and Divorce (2nd Ed.) 1189.
'* * *.
We have consistently followed the principles established in Mylius by holding that foreign custody decrees are entitled to full faith and credit; and this means such decrees are res judicata, but only as to the facts before the court rendering the decree; Smith v. South, 59 N.M. 312, 283 P.2d 1073 (1955); and that upon a showing of changed circumstances indicating the welfare of the child will best be served by a change of custody, the full faith and credit clause does not prohibit a modification of the foreign decree. Tuft v. Tuft, 82 N.M. 461, 483 P.2d 935 (1971) and the cases cited therein; Terry v. Terry, 82 N.M. 113, 476 P.2d 772 (1970). The controlling consideration is the welfare of the child. See e.g. Terry v. Terry, supra; Fox v. Doak, 78 N.M. 743, 438 P.2d 153 (1968); Smith v. South, supra; Albright v. Albright, 45 N.M. 302, 115 P.2d 59 (1941); Ex parte Mylius v. Cargill, supra.
As to the degree and kind of change in circumstances, we said in Albright v. Albright, supra:
'The changed circumstances must be substantial, and 'only a change in circumstances and conditions materially affecting the existing welfare of the minor, occurring since the former adjudication, may properly become the subject of inquiry and the basis of a change in the award of the minor's custody,' * * * Evens v. Keller, supra (35 N.M. 659, 6 P.2d 200).'
The moving party has the burden of proving that a legally sufficient change of circumstances has occurred. We said in Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932 (1971):
Naturally, the trial court has considerable discretion in child custody awards. Merrill v. Merrill, supra; Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968). But a generality concerning the breadth of the trial court's discretion cannot be permitted to serve as a device for circumventing the constitutional requirements of full faith and credit, the common law doctrine of res judicata and the requirements laid down in our precedents regarding the sufficiency of a supposed change in circumstances.
With these principles in view, the legal issue presented here is limited in scope. Has there been a change of circumstances which is substantial, which materially effects the children's welfare and which occurred between May 28 and November 3, 1971? Only an affirmative answer to these questions will permit us to sustain the trial court's order.
Quite a lot of the petition and evidence was taken up with assorted alleged delinquencies and shortcomings of defendant. Most of this had more or less evaporated by the time the proof was in and does not concern us. The petition, in summary,...
To continue reading
Request your trial
-
Spingola v. Spingola
...prior adjudication where child support was originally awarded. Unser v. Unser, 86 N.M. 648, 655, 526 P.2d 790 (1974); Allgood v. Orason, 85 N.M. 260, 511 P.2d 746 (1973); Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932 (1971); Albright v. Albright, 45 N.M. 302, 115 P.2d 59 The burden of proof......
-
Watson v. Blakely
...in the forum state and there has been a material change of circumstances since the rendition of the prior decree. See Allgood v. Orason, 85 N.M. 260, 511 P.2d 746 (1973); Altman v. Altman; see also Worthley v. Worthley, 44 Cal.2d 465, 283 P.2d 19 (1955); Palladay v. Palladay, 422 So.2d 1108......
-
Unser v. Unser
...since the prior adjudication where child support was originally awarded. See our review of the New Mexico cases in Allgood v. Orason, 85 N.M. 260, 511 P.2d 746 (1973); Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932 (1971). See also Albright v. Albright, 45 N.M. 302, 115 P.2d 59 As to the awa......
-
Normand By and Through Normand v. Ray
...and credit to valid judgments of other states. See e.g. Ex parte Mylius v. Cargill, 19 N.M. 278, 142 P. 918 (1914); Allgood v. Orason, 85 N.M. 260, 511 P.2d 746 (1973). The Rays did not prove that the Texas custody judgment was void or invalid. Therefore, the trial court properly gave full ......