Garcia v. Garcia

• Decision Date: 16 March 1970
• Docket Number: No. 8840,8840
• Citation: 81 N.M. 277,466 P.2d 554,1970 NMSC 35
• Parties: Sandra Estelle GARCIA, Plaintiff-Appellee, v. John Anthony GARCIA II, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 554

466 P.2d 554

81 N.M. 277

Sandra Estelle GARCIA, Plaintiff-Appellee, v. John Anthony GARCIA II, Defendant-Appellant.

No. 8840.

Supreme Court of New Mexico.

March 16, 1970.

Modrall, Seymour, Sperling, Roehl & Harris, Peter J. Adang, Albuquerque, for appellant

Poole, Tinnin & Danfelser, Willard F. Kitts, Albuquerque, for appellee.

OPINION

MOISE, Chief Justice.

We are here called upon to review a court order entered January 7, 1969, modifying an earlier order entered December 23, 1968, altering the custody rights of parents with reference to their two minor children, ages five and three at the time the orders were entered.

The parties were divorced in January, 1967, and the custody of the minor children was awarded to the mother (appellee), with visitation rights in the father (appellant). He was required to make monthly payments of $150.00 for the support of the children.

On July 18, 1968, a petition was filed by the father seeking the full custody of the children or, in the alternative, that the father's visitation rights be increased so that custody would be in him for at least one-half of each year. The December 23, 1968, order followed. By its terms custody was continued in the mother, with visitation rights of the father enlarged somewhat, and specified in considerable detail. Support payments were left unchanged and certain orders were promulgated concerning conduct of the parties toward each other and toward the children. This was followed on January 3, 1969, by a petition by the father for modification of the December 23 order so that he be given full custody subject to visitation rights in the mother because she had remarried and was about to move to California and take the children with her, whereby the father would be deprived of his visitation rights previously adjudged by the court. On January 7, 1969, after 'having heard the testimony of both the petitioner (husband) and respondent (wife)' and the 'representation and arguments of counsel,' the court entered an order by the terms of which the wife was permitted to retain custody of the children and take them with her to California subject to the right of the husband to visit them there. In addition, the husband was to have them with him in New Mexico for a six-week period each summer and for alternate Christmas and Easter holidays, with the requirement that the father pay all costs of transportation for the children between California and New Mexico.

Before reaching the arguments advanced by appellant, we must dispose of a motion to dismiss the appeal because of the absence of a bill of exceptions. There can be no question that the absence of a bill of exceptions forecloses any attack on the findings made by the trial court, and we are bound by such findings. In re Guardianship of Caffo, 69 N.M. 320, 366 P.2d 848 (1961); Armijo v. Shambaugh, 64 N.M. 459, 330 P.2d 546 (1958). However, we do not understand that a dismissal of the appeal is required because of this fact. See Denver & Rio Grande Railroad Co. v. United States of America, 9 N.M. 309, 51 P. 679 (1898); Weaver v. Fickett, 196 Cal. 401, 238 P. 87 (1925); Putnam v. City of Salina, 136 Kan. 637, 17 P.2d 827 (1933). Appellant may, nevertheless, argue legal issues, as, for example, that the findings as made do not support the conclusions of law adopted or the judgment based thereon. Household Finance Corp. of Seattle v. Williams, 66 Wash.2d 183, 401 P.2d 876 (1965); Hoffee v. Salem Yellow Cab Co., 222 Or. 437, 353 P.2d 226 (1960). The motion to dismiss will be denied, but appellant will be bound by the findings as made by the trial court, and will be restricted to legal arguments based thereon.

Appellant predicates his first point on claimed error of the trial court in authorizing removal of the children 'in the absence of evidence showing that such removal was in the best interests of the children and merely for the convenience of appellee and her present spouse.' However, because there is no bill of exceptions the argument must be limited to a question of whether there was absent an indispensable finding to support the court's conclusion that it was in the best interests of the children that their mother (appellee) have the principal custody and that they be permitted to be removed to California to be with her.

Appellant's argument proceeds on the theory that the only specific reason found for removal to California is one of convenience to the parent having the custody as opposed to the interests of the children and is accordingly not proper. However, the court did clearly find that the best interests of the children would be served by being kept in the mother's custody. We do not perceive that anything more was required. Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968); Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963). Further, we do not agree that the fact the parent with custody is a non-resident or about to become one, for whatever reason, alters the universal rule that the best interests of the child are paramount; that if those interests are best served by being with the mother, even though outside this jurisdiction, removal should be permitted. Urzua v. Urzua, 67 N.M. 304, 355 P.2d 123 (1960). See Annots., 15 A.L.R.2d 432; 154 A.L.R. 552. In Urzua it is stated that permission to remove should be granted in those circumstances where it is clearly apparent that the best interests of the child will be subserved thereby. There is nothing in the instant case indicating any departure from this rule.

We fully appreciate that the court did not render a specific finding to the effect that the removal to California was in the best interests of the children. The court was fully aware that the mother was moving to California, yet it did not find that the children's best interests were injured by that fact. On the contrary, the court found that, even in light of such a move, it was in the best interests of the children that principal custody remain in the mother. By necessary implication, this means that it was in the best interests of the children to be in California in order to be in the custody of their mother. Therefore, the situation is not one of permitting the children to accompany the mother on a move made solely for her convenience and without regard to the best interests of the children. The judgment of the court is thus supported...