Fox v. Doak

CourtSupreme Court of New Mexico
Citation438 P.2d 153,1968 NMSC 31,78 N.M. 743
Docket NumberNo. 8516,8516
PartiesKathlyn E. FOX, formerly Kathlyn E. Doak, Plaintiff-Appellant, v. Rodney Orville DOAK, Defendant-Appellee.
Decision Date04 March 1968
Walker & Hensley, Portales, for appellant
OPINION

WOOD, Judge, Court of Appeals.

This is a dispute over child custody and child support. The issues are: (1) whether the findings are supported by substantial evidence, (2) whether refused findings should have been made and (3) whether there was an abuse of discretion by the order entered concerning custody and support.

The parties were divorced in 1962. The decree approved an agreement of the parties concerning the custody and support of their two boys, then five and two years old. Neither party has been satisfied with the custody arrangements; each unsuccessfully sought to have them changed. The last attempt prior to this action was in June 1966.

In February 1967, defendant father sought a change in the custody and support arrangements. After a hearing, the trial court modified the custody and support provisions. The changes are substantial. Defendant's custody is increased; he is not required to pay support during the time the boys are in his custody. Plaintiff's custody and the money she is to receive as child support is correspondingly decreased. In addition, the trial court ordered a temporary reduction in the amount of support payments. Plaintiff, the mother appeals.

The trial court has a wide discretion in determining whether a custodial decree should be modified. In making that determination, the controlling influence should be the welfare and best interests of the child. Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963).

Whether the findings are supported by substantial evidence.

The findings show the trial court's concern for the best interests of the children. The trial court found that:

(a) The circumstances have changed materially;

(b) Plaintiff had failed to provide a stable environment for rearing the boys;

(c) Defendant had a suitable home for rearing them;

(d) Educational opportunities and benefits are better in defendant's home;

(e) The children would have a better opportunity to develop a stable life in defendant's home;

(f) It was in the best interests of the children that their custody be with defendant during each school term after the current school year.

Plaintiff attacks each of these findings. She admits there is evidence to support them. Her claim is that the evidence 'is lacking in substantiality.'

What is 'substantial evidence'? Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967), states:

'Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, * * * and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. * * *'

Plaintiff asserts that for four reasons the admittedly supporting evidence should not be considered as substantial. None of these contentions reach the issue of 'substantial evidence.' Accordingly, we do not review the evidence.

The four contentions, and our answers, are:

(1) Evidence 'in support of each finding has almost entirely been contradicted and undermined by other evidence in the record.' Admittedly, the evidence is conflicting. On appeal, however, all disputed facts are resolved in favor of the successful party; evidence and inferences to the contrary are disregarded. Tapia v. Panhandle Steel Erectors Co., supra. Disregarding the conflicting evidence, the only evidence left is evidence which supports the findings. An assertion that evidence at trial was conflicting is not an assertion that the supporting evidence is not substantial.

(2) 'Statements and conclusions reached by defendant and his relatives were admittedly based upon something that the minor children allegedly told them.' Some of the testimony which supports the findings was based on statements made by the children and thus hearsay evidence. There was no objection to this testimony. Hearsay evidence received without objection is considered in the same manner as other relevant evidence and has sufficient probative worth to support a finding. Kitts v. Shop Rite Foods, Inc., 64 N.M. 24, 323 P.2d 282 (1958). An assertion that some of the evidence supporting the findings is hearsay evidence is not an assertion that the supporting evidence is not substantial.

(3) At conclusion of the evidence the trial court made some remarks from the bench. According to plaintiff, 'it appears that the Court was only impressed by the fact that the parties had heretofore been unable to agree on anything at any time and that he was of the opinion that he might just reverse the situation * * * not basing his decision to reverse on anything other than the fact that the parties could never agree.' Plaintiff then sets forth asserted inconsistencies between the trial court's remarks and the findings.

Section 21--1--1(52)(B), N.M.S.A.1953, provides for a written decision of the court. The remarks from the bench were not such a decision. Error cannot be predicated on these remarks. Pack v. Read, 77 N.M. 76, 419 P.2d 453 (1966). The remarks do not raise the question of whether the evidence supporting the findings is substantial.

(4) Evidence on defendant's motion was taken on February 27. Plaintiff rested her case at the conclusion of the evidence. On March 10, plaintiff moved to reopen in order to present additional evidence on two matters concerning which there was some testimony at the February hearing. In denying the motion to reopen, the trial court commented that the issues had been fully litigated and additional evidence would serve no useful purpose. Plaintiff asserts that the trial court could not determine what was best for the children 'without all the evidence being presented.'

The motion to reopen is addressed to the trial court's discretion. Holthoff v. Freudenthal, 22 N.M. 377, 162 P. 173 (1916); Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934). Because of the nature of the additional evidence offered, we cannot say denial of the motion was an abuse of discretion. Compare Primus of City of Hot Springs, 57 N.M. 190, 256 P.2d 1065 (1953); Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960). The denial of a motion to reopen does not reach the question of whether the evidence which has been introduced and which supports the findings is substantial.

Whether refused findings should have been made.

Most of the refused findings were opposed to or inconsistent with the findings made by the trial court. The findings made are supported by substantial evidence. The trial court could reasonably find as it did. Therefore, the refusal of opposing or inconsistent findings is not error. Hines v. Hines, 64 N.M. 377, 328 P.2d 944 (1958).

The other refused findings concerned evidentiary as opposed to ultimate facts. Findings are to consist only of ultimate facts necessary to determine the issues. Goldie v. Yaker, 78 N.M. 485, 432 P.2d 841 (1967). Since these refused findings did not pertain to ultimate facts, it was not error to refuse them.

Whether there was an...

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  • Garcia v. Gutierrez
    • United States
    • Supreme Court of New Mexico
    • August 26, 2009
    ......As has long been the tradition in New Mexico, the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interests of the children. See Fox v. Doak, 78 N.M. 743, 744, 438 P.2d 153, 154 (1968) ("In making [a child-custody determination, a court's] controlling influence should be the welfare and best interests of the child."). .          {4} The Court of Appeals held that the state court did not have jurisdiction, to some degree ......
  • Miller v. Bank of Am., N.A.
    • United States
    • Court of Appeals of New Mexico
    • May 1, 2014
    ...of law that Beneficiaries were fully informed and consented to or ratified the Bank's conduct. See Fox v. Doak, 1968–NMSC–031, ¶ 10, 78 N.M. 743, 438 P.2d 153 (concluding that it is not error for the district court to reject requested findings of fact where the requested findings are incons......
  • Spingola v. Spingola
    • United States
    • Supreme Court of New Mexico
    • June 5, 1978
    ...... Fox v. Doak, 78 N.M. 743, 438 P.2d 153 (1968).         The awarding of child support rests within the sound discretion of the court. Michelson v. Michelson, 86 N.M. 107, 520 P.2d 263 (1974); Muckleroy v. Muckleroy, 84 N.M. 14, 498 P.2d 1357 (1972). Where an abuse of discretion is claimed by ......
  • Miller v. Bank of Am., N.A., Opinion Number: 2014-NMCA-053
    • United States
    • Court of Appeals of New Mexico
    • December 10, 2013
    ...of law that Beneficiaries were fully informed and consented to or ratified the Bank's conduct. See Fox v. Doak, 1968-NMSC-031, ¶ 10, 78 N.M. 743, 438 P.2d 153 (concluding that it is not error for the district court to reject requested findings of fact where the requested findings are incons......
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