Grant v. Cumiford

• Decision Date: 31 March 2005
• Docket Number: No. 24,445.,24,445.
• Parties: Floyd H. GRANT, III, Petitioner-Appellee/Cross-Appellant, v. Leslie D. CUMIFORD, f/k/a Leslie D. Interrante, Respondent-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

112 P.3d 1142

137 N.M. 485

Floyd H. GRANT, III, Petitioner-Appellee/Cross-Appellant, v. Leslie D. CUMIFORD, f/k/a Leslie D. Interrante, Respondent-Appellant/Cross-Appellee.

No. 24,445.

Court of Appeals of New Mexico.

March 31, 2005.

Sandra Morgan Little, Les W. Sandoval, Little & Gilman-Tepper, P.A., Albuquerque, NM, for Appellee/Cross-Appellant.

Leslie D. Cumiford, Albuquerque, NM, Pro Se Appellant/Cross-Appellee.

OPINION

BUSTAMANTE, Chief Judge.

{1} Both Mother and Father appeal from the district court's custody, timeshare, and child support order that arose from Father's motion to modify custody, timesharing, and support. The district court sealed the trial on the merits, but allowed a local television station to attend and televise the proceedings, while prohibiting the release of the recording. The court determined that there had been no material change in circumstances to warrant a change in legal and physical custody, but clarified timesharing and support responsibilities of the parents and ordered the parties to pay their own attorney fees. The court also ordered Father to pay Mother's share of the guardian ad litem's (GAL) fees and to deduct that amount from his support responsibilities. Mother appeals the rulings on child support and attorney fees; Father appeals the custody ruling. Both parents challenge different aspects of the court's rulings sealing the hearing but permitting television cameras in the courtroom. We affirm the court's custody ruling, but for the reasons that follow, we reverse and remand the support issues. In light of our rulings, we also reverse and remand the issue of attorney fees.

BACKGROUND

{2} Father and Mother were never married, but had a child on November 2, 1994. On April 22, 1996, the district court entered a stipulated judgment and decree of custody and child support giving the parents joint legal custody. By that time, Mother and Child were living in Albuquerque, and Father was living in Norman, Oklahoma. The order provided that Mother would have primary physical custody and Father would have periods of visitation, but stated that Child would not sleep away from his own bed and/or Mother until he was at least two and one-half years old. Evidence was presented at trial that Child made his first visit to Oklahoma in December 1998. Between 1999 and 2000, Child made approximately two visits to Oklahoma, with his parents meeting in Amarillo, Texas to transfer him from one parent to the other. In the summer of 2001, when Child was six, he began to fly to Oklahoma, and in the summer of 2002, Father told Mother that he wanted Child to spend most of the summer with him, but Mother wanted Child to stay in Oklahoma for only two to three weeks. Father testified that negotiations about visits became increasingly difficult, and in June 2002 he filed a motion to modify custody due to a significant change in circumstances. In his motion to modify custody, Father sought primary physical custody, claiming that Child wanted to spend more time with him and that Mother was failing to comply with the provisions of the 1996 decree. Father requested the appointment of an expert under Rule 11-706 NMRA to conduct a custody evaluation and to make recommendations as to Child's best interests.

{3} Following the filing of Father's motion to modify custody, the relationship between Child's parents appears to have become increasingly contentious, and a GAL was appointed to represent Child's best interests. Then in November 2002, the court appointed an expert under Rule 11-706 to perform a custody evaluation. The court-appointed expert completed the psychological evaluation and parenting plan on March 14, 2003, which recommended a continuation of joint legal custody and primary residence with Mother.

{4} By this time, numerous motions had been filed, alleging claims by Father that Mother was not complying with the joint custody and visitation provisions, allegations by the GAL that Mother had made unsubstantiated claims of sexual abuse against Father, and claims by Mother that the GAL was hostile to her and not objective. The conflict between the parties culminated in Father's filing a motion on March 13, 2003, to modify joint legal custody and award sole legal custody to Father. A hearing on this motion was set for April 29, 2003.

{5} On April 7, 2003, Mother moved to adopt the March 14 parenting plan recommended by the court-appointed expert with only one change concerning the return date from summer vacation. Father objected to this change and requested a two-day evidentiary hearing on the parenting plan. Father and the GAL then filed additional motions alleging that Mother had refused to take Child to see a therapist and refused to allow Father telephone access to Child. At the hearing on April 29, 2003, the court appointed a therapist for Child, ordered the parties to follow the recommendations of the court-appointed expert on a temporary basis, ordered the parties to attend a facilitation before trial, and set a trial date for August 20-21, 2003. The court also ordered that all pending motions would be heard at trial.

{6} On May 16, 2003, however, the GAL filed an emergency motion to transfer custody from Mother to Father in Oklahoma. In this motion, the GAL made the following allegations: that Mother had unreasonably attempted to block Father's time with Child; that Mother had gone to great lengths to prevent Father from having a meaningful relationship with Child; that Mother had falsely accused Father of being a pedophile; that Mother had turned against the GAL and the court's expert for failing to accept her accusations; that Mother refused to take Child to therapy when the therapist did not accept Mother's accusations; that Father, whom the GAL found credible, had reported Mother was obstructing Father from communicating with Child; that by enrolling Child in a karate program, Mother was attempting to influence Child's feelings about going to Oklahoma; that Mother had claimed Father had convictions for driving while intoxicated and later acknowledged this was not true; that Mother's home was toxic and she should receive only supervised visitation; and that Mother had been uncooperative in general with the GAL. On May 20, 2003, a day before the hearing on the GAL's motion, the court-appointed expert issued an addendum to his psychological evaluation, in which he recommended that Father have temporary sole legal and physical custody of Child for the summer.

{7} Following a hearing on the GAL's motion, held on May 21, 2003, a week before Child was due to go to Oklahoma for the summer, the court entered a minute order awarding immediate, sole, temporary custody of Child to Father in Oklahoma and awarding one week of supervised visitation to Mother in July. A week after Child left for Oklahoma, Father filed a motion to modify Mother's summer visitation, requesting that Mother travel to Oklahoma and be supervised at all times. The motion alleged that Mother had published a flyer claiming that Child had been removed from her home without notice and without justification. At a hearing held on June 4, 2003, the court ordered that the GAL had authority to determine whether summer visitation should be modified and noted that the GAL did not intend to modify the visitation at that time.

{8} The GAL initially determined that Child should visit Mother in Albuquerque for seven days from August 3, 2003. However, on July 18, 2003, the GAL filed a report recommending the visit be changed to coincide with Father's trip to Albuquerque for court-ordered mediation from July 30, 2003, until August 2, 2003. Because Mother was also ordered to participate in the mediation at this time, her access to Child was to be restricted to the evenings until Father picked up Child and took him to a hotel. In addition, the GAL recommended that all of Mother's visitation be supervised.

{9} On August 11, 2003, the court-appointed expert issued a second addendum to his psychological evaluation, recommending that Father have sole legal custody of Child and Mother have a limited amount of visitation. Less than a week before the trial on the merits, held on August 20-25, 2003, the GAL filed a motion to exclude televised media from the hearing and a motion to seal the hearing on the merits. The court denied the motion to exclude the media, but ordered that the media could "not release the out-takes of the footage to any party or non-party in this matter." The court also sealed the hearing to all who did not have a direct interest in the matter.

{10} Following the trial, the court ruled that there had not been a material change in circumstances since the 1996 stipulated judgment warranting a change in legal and physical custody. In addition to clarifying timesharing arrangements, the court ordered Father to pay sixty percent and Mother forty percent of Child's support. The court also abated Father's support by one-half for June and July 2003, when Child would be with Father. The parties were ordered to pay the court expert and the GAL fees in the same proportion as child support. In addition, the court ordered Father to pay Mother's share of the GAL fees and then to deduct up to $300 per month from child support to offset those payments. The parties were ordered to pay their own attorney fees. This appeal and cross-appeal followed.

{11} We include the remaining facts pertinent to each appellate issue in our discussion.

DISCUSSION

{12} Mother raises five issues in her appeal: whether the district court (1) abused its discretion in ordering both parties to pay their own attorney fees, (2) erred in imputing salary to Mother, (3) erred in ordering Father to pay the GAL fees and to deduct Mother's portion from child support payments, (4) improperly abated Father's summer child support payments on an annual basis, and (5) improperly sealed the hearing on the merits. Father raises two issues in his cross-appeal:...