Elder v. Park

• Citation: 1986 NMCA 34,717 P.2d 1132,104 N.M. 163
• Decision Date: 01 April 1986
• Docket Number: No. 8008,8008
• Parties: Alan R. ELDER, Petitioner-Appellant, v. Marjorie Lander PARK, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1132

717 P.2d 1132

104 N.M. 163

Alan R. ELDER, Petitioner-Appellant, v. Marjorie Lander PARK, Respondent-Appellee.

No. 8008.

Court of Appeals of New Mexico.

April 1, 1986.

[104 N.M. 164] Winston Roberts-Hohl, Barry Green, Santa Fe, for petitioner-appellant.

Richard S. Lees, Santa Fe, for respondent-appellee.

OPINION

MINZNER, Judge.

Father appeals the trial court's order enforcing a New Hampshire court custody order, enjoining him from contesting custody in New Mexico while New Hampshire was exercising jurisdiction over the custody dispute, and dismissing his New Mexico petition for custody. The appeal raises issues that are controlled by the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. Section 1738A (Cum.P.P.1985), New Mexico's Child Custody Jurisdiction Act (CCJA), NMSA 1978, Sections 40-10-1 to -24 (Repl.Pamp.1983), and New Hampshire's Child Custody Jurisdiction Act (NHCCJA), N.H.Rev.Stat.Ann. Sections 458-A:1 to -:25 (1983). Father contends (1) that New Mexico, rather than New Hampshire, had jurisdiction to make a custody determination, and (2) that the trial court erred in enforcing the New Hampshire order and in dismissing his petition for a custody determination in New Mexico. Mother has requested attorney fees on appeal. We affirm.

FACTS AND PROCEEDINGS BELOW

Father and mother have never been married, although they were living together when the child was born in 1973. In 1976, mother and father separated. The child continued to live with father, but mother saw her regularly.

Mother moved to New Hampshire in 1980. Father sent the child to New Hampshire for summer visits during the summers of 1981, 1982, and 1983. Before the child left for the summer visit in 1983, she and father discussed the possibility of her remaining in New Hampshire for the following winter. The child remained with mother the following winter, returning to New Mexico for the Christmas holidays.

According to father, the parties agreed that, at the end of the 1983-1984 school year, the child would decide where she wanted to live. According to mother, mother did not agree to this.

In June, 1984, mother decided to seek legal custody of the child. She consulted New Hampshire counsel. According to her testimony, she told father what she intended to do.

Father immediately went to New Hampshire. By this time, the child had decided she wanted to live with father. Against the mother's will, but with the child's consent, father brought the child back to New Mexico.

Within a day or two, mother's proceedings had been filed, and she had obtained, ex parte, a temporary custody order. By the terms of the order, custody was "awarded ex-parte to the plaintiff, without prejudice to defendant's rights or interests." In addition, the New Hampshire court provided that its order "shall continue until there is a hearing on said temporary custody if requested by defendant."

A week later, mother filed an action in New Mexico, seeking enforcement of the New Hampshire order and an injunction against the father's litigation of custody in New Mexico. A day later, father filed his own petition for custody in New Mexico. The two actions were consolidated and expedited by the New Mexico court. During the proceedings, the New Mexico court attempted to obtain information from the New Hampshire court by telephone but was unable to do so. It is unclear whether the New Hampshire court refused to respond or whether an appropriate official was not available.

After a hearing, the New Mexico court ruled in favor of mother, finding that New Hampshire had jurisdiction, that the New Hampshire proceeding was instituted first, and that, under these circumstances, the New Mexico court must defer to New Hampshire's exercise of jurisdiction and enforce orders of its court. The trial court also found, however, that the New Hampshire court order did not exclude visitation rights. Consequently, the trial judge permitted the child to stay with father for the summer, subject to further action by the New Hampshire court. Father was required to give custody to mother not later than ten days prior to the beginning of the school year in New Hampshire. In addition, father was enjoined from contesting custody in any New Mexico court until the New Hampshire court ceased to exercise jurisdiction, and his New Mexico custody petition was dismissed. The trial court refused to award either party attorney fees.

Father appealed the trial court's order. While the appeal was pending, and prior to the time the child was scheduled to return to New Hampshire, father moved the trial court for a stay. While that motion was pending, father moved this court for a temporary stay, alleging that the New Hampshire order had expired under New Hampshire law ten days after entry, that the child now was enrolled in school in New Mexico, and that the trial court had not acted on the motion. We remanded the case to the trial court.

The trial court, after a hearing, denied father's motion. Father renewed his motion for an order from this court, staying proceedings pending disposition of the appeal. Mother opposed the stay and requested this court to award attorney fees, noting that father filed his motion for a temporary stay from this court two days after filing his motion with the trial court. This court denied father's motion and held mother's request in abeyance pending disposition of the appeal.

WHETHER THE TRIAL COURT ERRED IN DEFERRING TO NEW HAMPSHIRE'S EXERCISE OF JURISDICTION

Father claims that the trial court erred in ruling that it was required to defer to New Hampshire's exercise of jurisdiction. He makes several related arguments.

First, he contends that the trial court erred in not considering the PKPA. Next, he contends that had the trial court considered the PKPA, it should have concluded that New Hampshire did not have jurisdiction under its own laws or under the PKPA. Father also contends that had the trial court considered the PKPA, it should have concluded that New Mexico had jurisdiction, because the child was on an extended visit in New Hampshire. In connection with these arguments, father claims the trial court erred in relying solely on the allegations contained in the New Hampshire petition. Finally, he contends that New Hampshire lacked jurisdiction under the PKPA, because he had not had notice and an opportunity to be heard in New Hampshire at the time he filed his petition in New Mexico.

We do not consider all of father's arguments separately. We should affirm a correct result at trial even if reached for the wrong reason. H.T. Coker Construction Co. v. Whitfield Transportation, Inc., 85 N.M. 802, 518 P.2d 782 (Ct.App.1974). On these facts, there is no inconsistency between the PKPA and the CCJA. Under both, there is a limitation on the trial court's authority to act. Thus, whether or not the trial court should have addressed the application of the PKPA prior to addressing the application of the CCJA, see Mitchell v. Mitchell, 437 So.2d 122 (Ala.Civ.App.1982), father has not demonstrated prejudice.

In addition, father relies on the trial court's oral remarks for his conclusions that the trial court applied state law rather than federal, and that the trial court relied on mother's allegations in her petition. Oral remarks may not be relied upon for reversal. Marcus v. Cortese, 98 N.M. 414, 649 P.2d 482 (Ct.App.1982).

The trial court's order states that deference is required under applicable law. The question is whether deference was required. Father's other arguments address this question. In answering these arguments, we first address the trial court's authority under the statutes, then we answer father's remaining arguments.

THE TRIAL COURT'S AUTHORITY TO ACT

The primary purpose of acts such as the PKPA and CCJA is to avoid jurisdictional competition and conflict in making custody awards. Sec. 40-10-2(A); N.H.Rev.Stat.Ann. Sec. 458-A:1(I)(a); Pub.L. 96-611, Sec. 7(c)(5). See also Belosky v. Belosky, 97 N.M. 365, 640 P.2d 471 (1982). Another purpose is to facilitate the orderly resolution of child custody disputes between parents located in different states. State ex rel. Department of Human Services v. Avinger, 24 SBB 1259 (Ct.App.1985), cert. granted November 18, 1985. To advance these purposes, the different custody acts, in various ways, require deference to the jurisdiction of the court in which proceedings are first commenced. See R. Crouch, Interstate Custody Litigation: A Guide to Use and Court Interpretation of the Uniform Child Custody Jurisdiction Act (BNA 1981). See also People ex rel. Cusano v. Leone, 43 N.Y.2d 665, 401 N.Y.S.2d 21, 371 N.E.2d 784, n. 1 (1977); Child Custody in New Hampshire: The Uniform Child Custody Jurisdiction Act, 23 N.H.B.J. 101 (1982); Commissioners' Note to Section 3, UCCJA, 9 U.L.A. 123 (1979).

For example, the acts all provide that courts to which a custody determination is addressed shall not exercise jurisdiction during the pendency of a proceeding in another state, if the court of that state is exercising jurisdiction in the matter consistently with the acts. Sec. 40-10-7; 28 U.S.C.A. Sec. 1738A(g). The uniform state acts provide that courts shall recognize and enforce the decrees of other states if made substantially in accordance with the uniform act or under factual circumstances meeting its jurisdictional standards; the federal act provides that courts shall enforce and shall not modify the decrees of other states if made consistently with the provisions of the federal act. Sec. 40-10-14; 28 U.S.C.A. Sec. 1738A(a). The acts also provide that courts shall not modify the decrees of other states unless the courts of the other states no longer have jurisdiction or have declined to exercise jurisdiction. Sec. 40-10-15; 28 U.S.C.A. Sec. 1738A(f). Thus, in limiting the authority to act as well as in requiring the extension of full faith and credit, the acts promote the purposes behind their enactm...