Hopkins v. Wollaber

• Decision Date: 28 December 2018
• Docket Number: NO. A-1-CA-35816,A-1-CA-35816
• Citation: 458 P.3d 583
• Parties: Carrie Beck HOPKINS f/k/a Carrie Denise Beck, Petitioner-Appellant, v. Allan Benton WOLLABER, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

458 P.3d 583

Carrie Beck HOPKINS f/k/a Carrie Denise Beck, Petitioner-Appellant,

v.Allan Benton WOLLABER, Respondent-Appellee.

NO. A-1-CA-35816

Court of Appeals of New Mexico.

Filing Date: December 28, 2018

Released for Publication July 2, 2019

Carrie Hopkins, Los Alamos, NM, Pro Se Appellant

Cuddy & McCarthy, LLP, Aaron J. Wolf, Julie S. Rivers, Santa Fe, NM, for Appellee

HANISEE, Judge.

{1} Carrie Beck Hopkins (Mother) appeals pro se the district court's order permitting her ex-husband, Allan Benton Wollaber (Father), to relocate with their children (Son and Daughter) (collectively, Children) to Massachusetts. In addition to raising various due process claims, none of which we find persuasive, Mother challenges what she perceives to be the district court's termination of joint legal custody and grant of sole legal custody to Father.¹

{2} We conclude that the district court's order did not terminate, but rather modified, joint custody by awarding primary physical custody to Father. We affirm that aspect of the district court's ruling but, concluding that the district court's order is ambiguous as to legal custody, remand with instructions that the district court amend its order to clarify that Mother and Father continue to share joint custody of Children.

BACKGROUND

{3} Upon their divorce in January 2013, Mother and Father (collectively, Parents) agreed to joint custody and a parenting plan that included a time-share schedule for Son and Daughter, then ages seven and five respectively. Under the original parenting plan, Mother was generally responsible for Children during the week, and Father was responsible for Children on weekends. Although the parenting plan was amended at various times to modify Parents' timesharing arrangement to alternating weeks of responsibility and address other issues, legal custody of Children remained joint in Mother and Father.

{4} At some point in 2015 Father began exploring a possible relocation to Boston, Massachusetts, but indicated an unwillingness to move without Children. In February 2016 Father formally filed for a "change of custody and to relocate with" Children to Boston, requesting "that he be awarded sole legal custody and that he be permitted to relocate with [Children] prior to the upcoming 2016-2017 school year." The district court referred the parties to Family Court Services for an advisory consultation and expedited the schedule because Father had already obtained new employment in Boston and hoped to relocate with Children by Fall 2016. Upon completion of the consultation process, advisory consultant Gary Lombardo recommended that "[C]hildren primarily reside with Father and relocate with Father to the Boston, Massachusetts area." Lombardo's report also included a recommendation that "Father maintain sole legal custody" of Children.

{5} A two-day hearing was held in July 2016. At the end of the hearing, the district court granted Father's motion to relocate with Children and adopted Lombardo's recommendations in full "without modification." The district court's written order said nothing about legal custody, i.e., whether Parents would retain joint custody or whether joint custody was being terminated and sole custody being awarded to Father. Mother moved for reconsideration and to stay the district court's order. From the district court's denial of both motions, Mother appeals.

DISCUSSION

{6} Mother makes two arguments on appeal: (1) the district court erred in "terminating the joint custody award[,]" granting Father sole custody, and permitting Father to relocate Children to Boston; and (2) the district court's "termination of joint custody" deprived Mother of her constitutional right to due process of law. We address each issue in turn.

I. The District Court's Custody Determination

{7} Mother argues that the district court erred by "terminating the joint custody award" and awarding Father sole custody absent a finding that "there was a substantial and material change in circumstances justifying termination of joint custody." Mother contends that a custodial parent's long-distance relocation "is not necessarily" a basis for terminating joint custody because "parents can—and do—continue to share joint custody of their children even when they do not live in the same state." Mother additionally challenges that aspect of the district court's order permitting Father to relocate Children to Boston. She argues that Father failed to meet his burden of demonstrating that it was in Children's best interest to move with Father and that the district court erred by granting Father's motion to relocate without considering the needs and best interests of Children.

{8} We first address whether the district court's ruling indeed effectuated termination of Mother's legal custodial rights or merely modified Parents' existing custody arrangement to accommodate Father's relocation. We then resolve whether the district court erred in modifying custody by awarding primary physical custody to Father.

Standard of Review

{9} "We review a district court's child custody determination for abuse of discretion." Hough v. Brooks , 2017-NMCA-050, ¶ 18, 399 P.3d 387, cert. denied , ––– P.3d –––– (No. S-1-SC-36387, May 4, 2017). To the extent the issues presented involve construction of New Mexico's custody statutes, our review is de novo. See id. ¶¶ 20, 21 (noting that the question of whether New Mexico's joint custody statute, NMSA 1978, § 40-4-9.1 (1999), applies to the facts of that case "is an issue of statutory construction that we review de novo").

A. The District Court Order Modified and Did Not Terminate Joint Custody

{10} We begin by noting that it is not entirely clear whether the district court appreciated, much less intended, that its ruling might, in fact, result in termination of joint custody. The district court's order neither states—from the standpoint of legal custody—that joint custody was being terminated nor expressly grants Father sole custody. Rather, the district court's order adopts "without modification" Lombardo's recommendations, which included that "Father maintain sole legal custody." But that recommendation reflects a critical misunderstanding of the preexisting legal status, i.e., that Father had never, in fact, been awarded "sole legal custody."² It is unclear what Lombardo's apparent belief that Father had already been granted sole custody—evinced by his recommendation that Father maintain sole custody—was based upon, or that Lombardo or the district court understood the legal significance of that particular recommendation. But by adopting Lombardo's recommendations wholesale and without modification or clarification, the district court arguably terminated joint custody and, at the very least, rendered uncertain the legal custodial status of Mother and Father.

{11} We conclude that the district court's order is ambiguous because it does not clearly address, or certainly and unequivocally resolve the threshold question of whether Mother's joint custody status was terminated and the related question of whether sole custody was awarded to Father. See Allred v. N.M. Dep't of Transp. , 2017-NMCA-019, ¶ 23, 388 P.3d 998 (explaining that "[a] judgment must be certain and unequivocal such that it disposes of the matters at issue between the parties [such] that they will be able to determine with reasonable certainty the extent to which their rights and obligations have been determined" (alterations, omission, internal quotation marks, and citation omitted) ), cert. denied , ––– P.3d –––– (No. S-1-SC-36235, Jan. 12, 2017). We, therefore, proceed to construe the order to determine the district court's intention, i.e., whether it intended to terminate joint custody or merely modify Parents' existing custody arrangement. See id. ("Our goal in construing an ambiguous judgment is to determine the intention and meaning of the author." (alteration, internal quotation marks, and citation omitted) ). To aid our construction, we look to the judgment, pleadings, and entire record. See id. (explaining that "if the meaning [of a judgment] is obscure, doubtful, or ambiguous, the judgment, pleadings, and entire record may always be resorted to for the purpose of aiding in the construction thereof" (internal quotation marks and citation omitted) ); see also Fed. Nat'l Mortg. Ass'n v. Chiulli , 2018-NMCA-054, ¶ 14, 425 P.3d 739 (explaining that "when an order or judgment has some ambiguity or uncertainty, it may be construed in the light of the pleadings, other portions of the judgment, findings, and conclusions of law").

{12} We begin, however, with a discussion of the differences between (1) legal and physical custody, and (2) modification and termination of custody, a discussion intended to clarify important distinctions in the law that were blurred, confused, and conflated in this case, leading to the ambiguity we must now resolve. These clarifications are important because different legal standards apply—and the party seeking a change in legal custody bears a different evidentiary burden—when termination of joint custody, as opposed to modification of physical and/or legal custody, is sought. We explain.

1. Legal Versus Physical Custody, and Termination Versus Modification of Custody

a. Legal Versus Physical Custody

{13} In the context of determining the custody of children upon dissolution of marriage in New Mexico, "custody" is defined as "the authority and responsibility to make major decisions in a child's best interests in the areas of residence, medical and dental treatment, education or child care, religion and recreation[.]" Section 40-4-9.1(L)(2) ; see In re Guardianship of Ashleigh R. , 2002-NMCA-103, ¶ 13, 132 N.M. 772, 55 P.3d 984 ("Legal custody is a status created by court order and vests in a person [or persons] the right to determine where and with whom a child will live."). New Mexico statutorily recognizes two types of legal custody: (1) "joint custody," in which custody...