Fitzsimmons v. Fitzsimmons, 8199

• Citation: 1986 NMCA 29,722 P.2d 671,104 N.M. 420
• Decision Date: 18 March 1986
• Docket Number: No. 8199,8199
• Parties: Thomas FITZSIMMONS, Petitioner-Appellee, v. Nancy FITZSIMMONS, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 671

722 P.2d 671

104 N.M. 420

Thomas FITZSIMMONS, Petitioner-Appellee, v. Nancy FITZSIMMONS, Respondent-Appellant.

No. 8199.

Court of Appeals of New Mexico.

March 18, 1986.

Certiorari Denied July 23, 1986.

[104 NM 422] Eugene E. Klecan, Janet Santillanes, Klecan & Santillanes, P.A., Albuquerque, for petitioner-appellee.

Laura J. Mason, Atkinson & Kelsey, P.A., Albuquerque, for respondent-appellant.

OPINION

GARCIA, Judge.

This is an appeal from the trial court's grant of custody of the parties' two children to husband. The case was initiated when husband filed a complaint for divorce alleging abandonment. He contended that his wife was not a fit and proper person to have custody of the parties' minor children and sought an award of custody. Wife filed a response and counter-petition seeking a dissolution of marriage on the grounds of incompatibility. Wife also sought custody of the children. Husband failed to reply to his wife's answer and counter-petition.

The trial court held two hearings on the complaint and counter-petition. The first hearing was held on February 28 and 29 of 1984. This resulted in an oral order granting a divorce, dividing the community assets and liabilities, denying alimony and attorney fees to wife and awarding wife child support. The court granted joint legal custody to the parties and directed that the physical custody would be shared on an alternating two-week schedule. The court did not grant the dissolution of marriage on the grounds urged by husband, but rather on the grounds of incompatibility, and stated that the divorce would be entered as of the date of the hearing. Additionally, the court directed a six-month review of the custodial arrangement. No written judgment, decree or order was entered.

The trial court conducted a second hearing in September. At the conclusion of this hearing, the court found and concluded that the best interests of the children would be served by granting custody to husband. The court's findings and conclusions were incorporated in a judgment filed on October 31, 1984. This is the final order from which wife appeals.

At the outset, we are compelled to note that husband's approach to this case has created a bitter and acrimonious atmosphere in which the welfare of the children took second place to husband's efforts to condemn and punish wife. Husband sought to portray his wife as an immoral, "ungrateful" person whose punishment for leaving him to pursue her career, another man and Albuquerque's "fast life" should be the loss of her children. This reciminatory approach has been specifically condemned by the New Mexico Supreme Court. Lopez v. Lopez, 97 N.M. 332, 639 P.2d 1186 (1981) (it is the well-being of the child and not the reward or punishment of the parent that guides the court); Schuermann v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980) (we should not encourage a system that relies on a showing of the negative qualities of the parent in custody disputes). We again take the opportunity to point out that such litigation tactics are inappropriate, and should not be utilized.

CUSTODIAL STANDARDS AND THE COURT'S DISCRETION

The legislature has determined that the "best interests of the child" shall be the standard for the trial court, "[i]n any case * * * awarding the custody of a minor * * *." NMSA 1978, Section 40-4-9 (Repl.Pamp.1983). The factors to be considered in the determination of the child's best interests are the wishes of the child's parents, the wishes of the child, the interaction and interrelationship of the child with his parents, siblings and other significant persons, the child's adjustments to home, school and community and the mental and physical health of all the individuals involved. Sec. 40-4-9.

Trial courts are vested with wide discretion in custody determinations and the trial court's decision will not be overturned absent an abuse of discretion. Ridgway v. Ridgway, 94 N.M. 345, 610 P.2d 749 (1980); Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968) (no reversal unless the trial court's conclusion about the best interests of the children is a manifest abuse of discretion under the evidence).

While the trial court is accorded great leeway in custodial decisions, the court's ruling must be supported by appropriate findings and the court's findings must be supported by the evidence adduced at the hearing. See Specter v. Specter, 85 N.M. 112, 509 P.2d 879 (1973); Albuquerque National Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 654 P.2d 548 (1982). Similarly, the lower court's conclusions of law must find support in the court's findings in order to be sustained on appeal. Romero v. J.W. Jones Construction Co., 98 N.M. 658, 651 P.2d 1302 (Ct.App.1982). Before turning to the court's findings and conclusions to determine whether they are supported by the record in this case, we briefly consider wife's change of circumstances argument.

CHANGE OF CIRCUMSTANCES

In addition to the best interest standard, in a proceeding to modify a provision of custody, the court must find that circumstances have so changed as to justify a modification. Schuermann. We must consider whether wife's claim that the trial court was required to find "changed circumstances" to award sole custody to husband is appropriate, under the facts of this case.

The September hearing was a custody review hearing scheduled by the judge when he awarded joint custody as a six-month experiment. The earlier hearing culminated in an oral ruling from the bench at which time the court determined that "both parents are good people capable of having custody of the children." The judge stated that he was granting the divorce and awarding joint custody as of that day, but no judgment or order was in fact entered. Because no order, judgment or decree was entered, the oral remarks of the trial court cannot be considered final. Stone v. Stone, 79 N.M. 351, 443 P.2d 741 (1968). In custody modification cases, the inquiry concerns the circumstances, of a material nature, that have changed since the entry of the original decree. Davis v. Davis, 83 N.M. 787, 498 P.2d 674 (1972). The "change of circumstances" time frame is measured from the original decree. Kerley v. Kerley, 69 N.M. 291, 366 P.2d 141 (1961). There is a presumption of reasonableness in the original decree, and that presumption serves to avoid re-litigating adjudicated issues. Id. The "change of circumstances" standard traditionally used for modification of final orders is not applicable in this case because a final order was not entered until October 1984. A change in circumstances was not necessary to modify the court's joint custody award in this case. Rather, the court was required to consider the standards for custody of Section 40-4-9 and to comply with the requirements of NMSA 1978, Civ.P.R. 52(B) (Repl.Pamp.1980).

WHETHER THE COURT ERRED IN CONSIDERING NON-STATUTORY FACTORS

Wife contends that the trial court abused its discretion by considering improper factors in its determination of custody, and further, that non-statutory factors were weighed too heavily. Section 40-4-9 contemplates that in addition to the explicit factors set out in the statute, the trial court, in determining the child's best interest, should consider other "relevant factors." Great discretion is accorded the trial court in custody matters, and this discretion, together with the statutory authorization, allows the court to examine all the facts and circumstances surrounding a child's living situation. Similarly, New Mexico law does not mandate that the court give greater or lesser weight to any specific factor. That is a matter reserved to the trial court's discretion. It is the trial judge who hears all the evidence, who observes the demeanor of the parties and their witnesses and who is in the best position to exercise his sound judgment. Ridgway. While a court is afforded wide discretion in determining custody, such discretion is not unfettered. It "is not arbitrary, vague or fanciful, or controlled by humor or caprice, but is a discretion governed by principle and regular procedure for the accomplishment of the ends of right and justice." Urzua v. Urzua, 67 N.M. 304, 308, 355 P.2d 123 (1960).

Additional findings made by the trial court, pertinent to its custodial determination, were that wife left the family home in Grants, and is pursuing a career in architecture (Findings No. 2 & 7); that husband was a fit and proper person to have custody of the children (Finding No. 12); that wife uses child-care facilities while the children are in her custody (Finding No. 3). The court did not make any finding regarding husband's work situation. Implicit in these findings is the determination that wife's decision to pursue her education and career in Albuquerque makes her less capable or less fit to be a custodial parent. A mother's employment should not be accorded a different or negative effect when compared with a father's employment. "The working mother is a common and often necessary phenomenon in our society, and need not reflect on the adequacy of the mother's parenting ability." Greene v. French, 97 N.M. 493, 496, 641 P.2d 524 (Ct.App.1982). On the contrary, the trend in New Mexico case law is towards encouraging a divorced spouse to gain economic autonomy so as to extricate herself or himself from a position of dependency. See Lovato v. Lovato, 98 N.M. 11, 644 P.2d 525 (1982). The implication that wife, because of her employment, is less able to manage or less deserving of custody is not in accord with the national trend. Id.

We acknowledge that wife is required to utilize the services of babysitters and day-care centers while husband is able to rely on his own parents to care for the children during their periods in Grants. The availability of such loving grandparents is certainly a plus factor which the court can appropriately consider. However, the absence of maternal grandparents in Albuquerque and...