Edington v. Edington., 4965.
| Decision Date | 24 January 1947 |
| Docket Number | No. 4965.,4965. |
| Citation | 50 N.M. 349,176 P.2d 915 |
| Parties | EDINGTONv.EDINGTON. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hidalgo County; Charles H. Fowler, Judge.
Action by Ray Edington against Agnes Edington for divorce, division of property, and custody of infant daughter of the parties, wherein a divorce was granted and by stipulation the property rights were settled, and custody of child was divided equally between the parties. From an order modifying custody provisions by granting each parent complete custody on alternate years, defendant appeals and plaintiff cross-appeals.
Affirmed.
Decree in divorce action granting custody to each parent for alternate years with respect to a nine-year-old girl, where each parent could provide her a suitable home, was discretionary. 1941 Comp. § 25-706.
W. T. Scoggin, Jr., and J. B. Newell, both of Las Cruces, for appellant and cross-appellee.
Joseph W. Hodges and J. R. Wrinkle, both of Silver City, for appellee and cross-appellant.
This was an action for divorce, division of property and custody of the infant daughter of the parties. A divorce was granted and by stipulation the property rights were settled and the child given to the custody of the parties, each being allowed custody for an equal length of time during each year. The decree provided that the custody of the child should be so settled until the further order of the court. Thereafter a number of motions were filed by the respective parties seeking to obtain complete control of their child. An application was made on July 17, 1945, by the plaintiff for the complete custody of the child setting out grounds why he was entitled thereto. The defendant answered and after a hearing the trial court made the following material findings of fact:
‘1. That the testimony and proof submitted by the plaintiff in support to paragraph one of his motion are insufficient to warrant or require any change in the order heretofore made and that paragraph one of the motion should be denied.
‘5. The Court further finds that while no formal pleading was filed before the Court in behalf of the defendant for exclusive custody of the said Joy Raynette Edington; that when plaintiff's motion was filed it reopened the question of custody and care again and the Court has considered the request of defendant's attorneys for exclusive control and custody of the said Joy Raynette Edington and feels that the situation in such that it does not require any change in the order heretofore made.’
From the foregoing findings the court concluded as a matter of law.
‘It is, therefore, Ordered, Adjudged and Decreed that the motion of the plaintiff be and the same is hereby denied * * *
‘It is further Ordered, Adjudged, and Decreed that the care, custody and control of the said minor child, Joy Raynette Edington, be awarded and divided between the parties as follows: that the defendant shall have said child for one year dating from July 4, 1945, and upon expiration of said year the defendant shall return said child to plaintiff at Lordsburg, New Mexico, and deliver her to the plaintiff who shall have the care and custody of said minor for the ensuing one year; and that thereafter care, custody and control of said child shall be divided alternately between the parties, each having the care, custody and control of her for one year and upon the expiration of said period, the said child shall be returned to Lordsburg and delivered to the party then entitled to her custody.
‘It is further Ordered, Adjudged and Decreed by the Court that the party having custody of said child shall notify the other party as to the whereabouts, health, activity and welfare of said child, monthly; and that said monthly reports will be made on or before the 15th day of each month hereafter.
‘It is further Ordered, Adjudged, and Decreed in regards to visitation that either party may permit the other party to visit said child at reasonable times when such visit will not interfere with the regular schooling of said child and that the parties may agree between themselves to permit each other to have the child over a week-end.
‘It is further Ordered, Adjudged and Decreed that the request of the Defendant for the exclusive care, custody and control of said child be, and the same hereby is, denied.’
The statute, 1941 Comp., Sec. 25-706, authorizing this action is as follows:
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...of custody decree); Davis v. Davis, 83 N.M. 787, 788, 498 P.2d 674, 675 (1972) (modification of custody decree); Edington v. Edington, 50 N.M. 349, 351, 176 P.2d 915, 917 (1947) (modification of custody decree). Implicit in these decisions and our statutory scheme is the idea that the origi......
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...is on the moving party to satisfy the court that the circumstances have so changed as to justify the modification. Edington v. Edington, 50 N.M. 349, 176 P.2d 915 (1947). On appeal from the denial of a petition to modify a child support, the reviewing court should decide: whether the findin......
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