Estep v. Estep
| Decision Date | 08 September 2020 |
| Docket Number | No. A-1-CA-37806,A-1-CA-37806 |
| Parties | MORRIS K. ESTEP, Petitioner-Appellant, v. MARY L. ESTEP, Respondent-Appellee. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Durham, Pittard & Spalding, LLP
Caren I. Friedman
Santa Fe, NM
for Appellant
Law Office of Martinez-Salopek, LLC
Ramona J. Martinez-Salopek
Las Cruces, NM
for Appellee
{1} Morris Estep (Husband) appeals the district court's orders related to divorce and child custody proceedings between Husband and Mary Estep (Wife), challenging the district court's decisions regarding (1) relocation of their two children (Children), (2) child support, (3) spousal support, (4) Husband's military retirement benefits and federal thrift savings plan, and (5) attorney fees. We affirm.
{2} Given that the parties are familiar with the facts and details of this case, we only briefly set forth pertinent facts and applicable law in this memorandum opinion, reserving further discussion of specific facts where necessary to our analysis. See Rule 12-405(B) NMRA (); State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361 ().
{3} The parties were married in 2002, and Husband filed a petition for dissolution of marriage on May 20, 2016. They entered into a stipulated marital settlement agreement and parenting plan on May 25, 2016, and the district court entered a stipulated judgment and final decree of dissolution of marriage on the same date. Thereafter, Wife obtained counsel and filed a motion for relief from judgment alleging that Husband never served her with the petition for dissolution of marriage and that Husband obtained her signature on the marital settlement agreement and parenting plan by deception, misrepresentation, and misconduct. Granting Wife's motion, the district court set aside the marital settlement agreement, the parenting plan, and the final decree of dissolution of marriage by order on March 28, 2017. Its order was supported by written findings of fact and conclusions of law filed therewith, including findings that Husband "overreached in his part of the divorce transactions[,]" breached his fiduciary duty to Wife, and that while Wife did sign "important legal documents, [she did so] under duress."
{4} Following the district court's order, litigation between the parties continued, which led to multiple hearings in district court. In one such hearing on July 23, 2018, (the July hearing), the district court awarded primary physical custody of Children to Wife. This was a departure from the court's previous temporary custody order—which had been based on recommendations by an appointed expert custody evaluator—wherein the district court awarded primary physical custody to Husband and allowed him to relocate Children to Texas.
{5} The district court filed three separate orders following the July hearing: an order dividing military retirement, an order dividing Husband's federal thrift savings plan, and a general order that included a summary of the district court's reasoning for altering the custody and timesharing arrangement. Husband thereafter filed multiple motions including a motion for extension of time to file proposed findings of fact and conclusions of law in response to the July hearing, a motion seeking reconsideration and withdrawal of the district court's orders dividing military retirement benefits, and a motion to alter the three orders filed after the July hearing. Although the July hearing is referred to as the "final" hearing by the district court, the court held another hearing on Husband's ensuing motions on October 4, 2018 (the October hearing). Following the October hearing, the district court filed four additional orders: (1) an amended order dividing military retirement, (2) an order regarding Husband's motion to alter orders, (3) an order denying Husband's motion for extension of time to file proposed findings of fact and conclusions of law, and (4) an order denying Husband's motion to reconsider. Husband appeals from the four final orders.
{6} On appeal, Husband argues the district court erred in the following ways: (1) granting primary physical custody to Wife after having previously awarded temporary, primary physical custody to Husband and allowing Husband to relocate with Children to Texas; (2) calculating and awarding child support; (3) awarding spousal support; (4) dividing Husband's military retirement benefits; (5) dividing Husband's federal Thrift Savings Plan (TSP); and (6) awarding attorney fees. We address each argument in turn.
{7} Husband argues that the district court erred in awarding primary physical custody to Wife because there was no intervening change in circumstances that could justify a modification to the previous custody arrangement. Husband additionally argues that the district court made no findings reflecting a substantial and material change in circumstances affecting the welfare of Children, and thus, the district court's custody modification was erroneous.
{8} "A trial court has wide discretion in awarding custody of a child in a divorce case, and the welfare of the child is of primary importance in making the award." Creusere v. Creusere, 1982-NMSC-126, ¶ 5, 98 N.M. 788, 653 P.2d 164. "We review a district court's child custody determination for abuse of discretion." Hopkins v. Wollaber, 2019-NMCA-024, ¶ 9, 458 P.3d 583 (internal quotation marks and citation omitted). "An abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." Hough v. Brooks, 2017-NMCA-050, ¶ 18, 399 P.3d 387 (internal quotation marks and citation omitted). Under such review, "we will uphold the district court's findings if they are supported by substantial evidence." Id. "Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion." Id. (internal quotation marks and citation omitted). Additionally, pursuant to NMSA 1978, Section 40-4-7(G) (1997), "[t]he court may modify and change any order or agreement merged into an order in respect to the guardianship, care, custody, maintenance or education of the children whenever circumstances render such change proper[,]" but "only upon . . . showing . . . a substantial change in circumstances since the prior order that affects the best interests of the children." Grant v. Cumiford, 2005-NMCA-058, ¶ 13, 137 N.M. 485, 112 P.3d 1142 (internal quotation marks and citation omitted).
{9} Here, the district court initially issued a temporary custody and timeshare order on August 3, 2017, awarding primary physical custody to Husband and explaining that based on recommendations by an appointed expert custody evaluator, it was "in the best interests of [C]hildren" to relocate with Husband to Texas. However, at the July hearing, the district court instead awarded primary physical custody to Wife. At the hearing, Husband's counsel asked for a statement of findings by the district court justifying the reversal of primary physical custody and the propriety of Children's relocation to Texas with Husband. The district court—referring to evidence that, since having relocated with Husband, Children "continually express[ed]" their desire to be with Wife—cited to NMSA 1978, Section 40-4-9(A) (1977), which provides that when considering the custody of a minor under the age of fourteen, a court's determinations must be in accordance with the best interests of the child and that in making such determinations, a court shall consider all relevant factors including, but not limited to:
(Emphasis added.) While a court must consider the desired custodial arrangement of a minor over the age of fourteen, see § 40-4-9(B), where, as here, Children are under the age of fourteen, the court has discretion to consider Children's wishes when awarding custody.
{10} While the district court exercised its discretion to consider the wishes of Children to live with Wife, we disagree with Husband's contention that the district court's decision to modify primary physical custody was based solely on the wishes of Children. Rather, the district court heard and relied on testimony from the appointed parenting coordinator who stated that relocation to Texas had adversely impacted Children because, although they had "settled in" and adapted to their new community, they did not have frequent contact with Wife. The parenting coordinator also testified that Wife was "far more psychologically stable" than previously evaluated. The district court also heard and relied on testimony from the appointed expert child custody evaluator who...
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