Alpers v. Alpers, 11696

• Decision Date: 06 February 1990
• Docket Number: No. 11696,11696
• Citation: 1990 NMCA 15,111 N.M. 467,806 P.2d 1057
• Parties: Deborah K. ALPERS, now Campbell, Respondent-Appellant, v. Douglas ALPERS, Petitioner-Appellee.
• Court: Court of Appeals of New Mexico

Page 1057

806 P.2d 1057

111 N.M. 467

Deborah K. ALPERS, now Campbell, Respondent-Appellant, v. Douglas ALPERS, Petitioner-Appellee.

No. 11696.

Court of Appeals of New Mexico.

Feb. 6, 1990.

[111 N.M. 468] Mary E. Lebeck, Cynthia A. Fry, Lebeck & Fry, P.A., Albuquerque, for respondent-appellant.

Dick A. Blenden, Paine, Blenden & Diamond, Carlsbad, for petitioner-appellee.

Paul Snead, Roswell, Guardian Ad Litem.

OPINION

APODACA, Judge.

Respondent Deborah K. Alpers (mother) has filed in this court a motion to stay the trial court's order changing custody, pending disposition of her appeal of the order on the merits. The trial court denied mother's motion. See SCRA 1986, 12-207. The issue before us is whether the trial court erred in denying a stay of the custody order. We hold the trial court abused its discretion in denying the motion and grant the stay pending resolution of the appeal on the merits.

BACKGROUND

The parties have two children, both boys, who are now eight and ten years old. Father filed for divorce in 1984. The final decree granted joint custody of the children to the parties, with mother having primary physical custody subject to father's detailed visitation rights. In 1986, mother remarried and moved with the children to Maryland. She and her new husband have two children of their own. Father continues to reside in New Mexico.

The post-divorce relationship between mother and father has been extremely antagonistic. During the ensuing years after entry of the final decree, there were several judicial proceedings on support and change in custody. Most pertinent to the issues involved in the stay are the following proceedings. In 1988 mother asked the court to stay the summer visitation then scheduled. At the hearing on this motion, mother submitted videotaped testimony from two Maryland mental health professionals on the boys' emotional and psychological harm resulting from their last visit with father. Evidence was also introduced regarding father's alleged drinking problem and violent nature. The trial court ordered the visitation to proceed, subject to certain restrictions on father's behavior during the visitation. Additionally, the trial court terminated joint custody and awarded mother sole custody.

In February of 1989, father filed for a change of custody, or, in the alternative, for visitation. This action resulted in two hearings during the early summer of 1989. Based on the testimony at the hearing on the merits, the trial court ordered a change of custody from mother to father. It was from this order that mother appealed. The trial court's order changing custody to the father included a finding that mother "has repeatedly disobeyed the orders of this court and it is apparent that [mother] will not comply with the orders of the court as to visitation and it is within the power of this court to alter the custody of the children to comply with this court's order."

As previously noted, mother also proceeded to file in the trial court a motion to stay enforcement of the order. See SCRA 1986, 1-062; R. 12-207. Attached to the motion were the office notes of Dr. Anne S. Frankel, dated July 5, 1989, and the affidavits of Belinda Straight, M.D., Ronald Kurz, Ph.D., and Neal Morris, Ph.D. During the pendency of this appeal, mother also initiated court proceedings in Maryland challenging the jurisdiction of the trial court to modify custody of the children and seeking to stay enforcement of the custody order entered by the trial court.

The trial court denied mother's motion. The denial was evidenced in the record proper by a minute order of the clerk. No written decision on the motion was filed. Mother then requested this court to review the trial court's decision under Rule 12-207. We granted the stay, indicating in our order that an opinion would be filed stating our basis for granting the stay.

DISCUSSION

During the pendency of an appeal, we may, upon motion and notice, review any action of, or failure or refusal to act by, the trial court dealing with supersedeas or stay. R. 12-207(A). In cases where a stay is sought with this court, an application for a stay of the judgment or order must first be made in the trial court. R. 12-207(B).

Grant of an application for stay is not a matter of right but an exercise of judicial discretion. See State v. Doe, 103 N.M. 30, 702 P.2d 350 (Ct.App.1984) (referred to as Doe I ). The propriety of the issuance of a stay is dependent on the circumstances of each individual case. Id. The trial court's decision shall be set aside only if it is shown that the decision was (1) arbitrary, capricious, or an abuse of discretion; (2) not supported by substantial evidence; or (3) otherwise not in accordance with the law. R. 12-207(D). We hold that, on the particular facts of this appeal, the trial court abused its discretion in denying a stay of the order changing custody.

Although Rule 12-207(D) provides generally for the granting of a stay by this court if the trial court has abused its discretion, we presently have no case law developing criteria or factors to be considered in determining whether an abuse of discretion has occurred in child custody proceedings. Such factors have been developed in other areas of the law. See, e.g., Cunningham v. Gross, 102 N.M. 723, 699 P.2d 1075 (1985) (listing other factors to be considered in granting or denying injunctive relief including the relative hardships to both plaintiff and defendant); Tenneco Oil Co. v. New Mexico Water Quality Control Comm'n, 105 N.M. 708, 736 P.2d 986 (Ct.App.1986) (discussing factors considered in granting or denying an injunction against the enforcement of administrative regulations); Scott v. Jordan, 99 N.M. 567, 661 P.2d 59 (Ct.App.1983) (finding that weighing the equities is a vital factor in determining whether to grant injunctive relief); Doe I, 103 N.M. at 32, 702 P.2d at 352 (listing factors to be considered in granting or denying stay in children's court proceeding).

In her argument in support of her motion for stay, mother has relied on the factors found in the above-noted cases. We believe, however, that such factors, while analogously useful, are not sufficiently tailored to meet the needs in child custody proceedings. For that reason, we have determined that this appeal affords us the opportunity to announce specific factors to be considered by both the trial court and this court in deciding whether a motion to stay a trial court's custody order should be granted pending disposition of an appeal. These factors are (1) the likelihood of hardship or harm to the children if the stay is denied; (2) whether the appeal is taken in good faith and the issues raised are not frivolous; (3) the potential harm to the interests of the non-moving party if the stay is granted; and (4) a determination of other existing equitable considerations, if any.

Likelihood of Hardship or Harm to Children if Stay Is Denied.

In most cases involving injunctive relief, the applicant is the party who may be harmed by the refusal to grant the injunction. However, in this appeal, and in most custody cases, it is the children who will be most deeply affected by the order of the trial court changing custody. It is black letter law that in child custody matters, the primary consideration is the best interests of the child. See NMSA 1978, Sec. 40-4-9 (Repl.Pamp.1989); see also In re Doe, 88 N.M. 505, 542 P.2d 1195 (Ct.App.1975) (in proceedings involving child custody the court is not merely a neutral arbiter but an advocate for the welfare of the child) (referred to as Doe II ). Thus, our emphasis in these cases is not on the interests of either of the parents, but on the best interests of the children and how the children will be affected by the grant or denial of a stay pending resolution of the appeal on the merits.

In this appeal, the change of custody contemplated by the trial court's order involves a substantial disruption of the lives of the children. Specifically, implementation of the order changing custody involves taking both children out of the schools that they have attended in Maryland, moving them two thousand miles across the country, and enrolling them in a new school system in New Mexico. If the motion for stay is denied, the children will be subjected to this disruption at a time when the propriety of the order changing custody is still at issue. If mother's attack on the order on its merits is successful, the lives of the children would be disrupted a second time by their return to Maryland.

Without any indication that the health or safety of the minor children is in jeopardy, a presumption exists that keeping the status quo during the pendency of an appeal is in a child's best interests. See Todd v. Peloso, 12 Ark.App. 404, 680 S.W.2d 712 (1984) (En Banc) (motion for stay of order changing custody denied where effect of order is to leave child in custody of parent with whom he has lived for the previous three years and there is no allegation that parent is not properly caring for the child); Ferreira v. Ferreira, 9 Cal.3d 824, 512 P.2d 304, 109 Cal.Rptr. 80 (1973) (noting that stability of environment is in itself an important factor in the welfare of a child, absent allegations that the health or safety of the child is jeopardized in the environment). Cf. Newhouse v. Chavez, 108 N.M. 319, 772 P.2d 353 (Ct.App.1988) (modification of custody may be granted only on showing of changed circumstances); H. Clark, The Law of Domestic Relations Sec. 11.5, at 326 (1968) (discussing the need for stability in the lives of children). Otherwise, the entire daily routine and living conditions of children could be needlessly disturbed in the event the appellate court reverses the trial court's ruling. Absent imminent physical or emotional harm to the child, it would appear that generally the least change in a child's living situation is in his or her best interests.

In addition to the...