Kerley v. Kerley, 6866
| Decision Date | 07 November 1961 |
| Docket Number | No. 6866,6866 |
| Citation | 366 P.2d 141,69 N.M. 291 |
| Parties | Dorothy Susan KERLEY, Plaintiff-Appellee and Cross-Appellant, v. James Donald KERLEY, Defendant-Appellant and Cross-Appellee. |
| Court | New Mexico Supreme Court |
Rowley Davis, Hammond & Murphy, Clovis, for appellant.
Bigbee & Stephenson, Charles D. Olmsted, Santa Fe, for appellee.
We are confronted with an appeal and cross-appeal growing out of an order entered by the lower court after hearing on a petition by defendant-appellant and cross-appellee (hereinafter referred to as defendant) for modification of the visitation rights accorded him in the divorce decree entered in 1957, and on a petition of plaintiff-appellee and cross-appellant (hereinafter referred to as plaintiff) seeking elimination of the rights of visitation granted at the time of the divorce.
Plaintiff and defendant were married in August, 1951, and separated in January, 1957. James Donald Kerley, Jr., around whom the controversy here revolves, was born November 19, 1954. A divorce decree was entered August 8, 1957, and among other things recites that the parties announced 'that they had reached an agreement with respect to the custody of James Donald Kerley, Jr., and with respect to the division of their community property; and the court having heretofore heard the evidence of the parties hereto, having considered the same, and being now fully informed in the premises finds:
The court made the following order with respect to custody:
'That plaintiff have and she is hereby awarded the custody of the minor child James Donald Kerley, Jr., provided, however, that defendant shall have and is hereby granted the right to visit said child and have said child visit with him, free of unreasonable interference and impediments, in the city or town where plaintiff and said child may then be residing, upon the giving of reasonable advance notice, at such times and under such circumstances as may be reasonable and as will not interfere with the welfare of said child and his proper bringing up; provided further that after said child shall have attained the age of 5 years, defendant shall have and is hereby granted, in addition to the right of visitation hereinabove provided for, the right to have said child visit with him annually at the home of defendant or elsewhere, at such time and for such reasonable period as will not interfere with the education and proper bringing up of said child, upon the giving of reasonable advance notice.'
Since the divorce both plaintiff and defendant have remarried, and defendant and his present wife have an adopted child.
In April, 1960, defendant petitioned the court to permit him to have James Donald Kerley, Jr., in his home in Clovis, New Mexico, each year from June 1 to August 20. Plaintiff filed her response thereto resisting the same, and at the same time petitioned for modification of the divorce decree to eliminate all visitation privileges of defendant. Defendant filed his response to plaintiff's petition.
After hearing, the court entered its order in which it held that all matters determined in the August 8, 1957, decree were res judicata, except questions concerning visitation rights, and with reference thereto contined defendant's rights unchanged from the way they were originally decreed.
Defendant appeals from the res judicata holding and plaintiff cross appeals from the decision that the visitation rights of defendant should continue unchanged.
Defendant in his appeal complains of the court's ruling that finding No. 3 hereinabove quoted is res judicata of the issue covered thereby.
Defendant is in the difficult position insofar as this appeal is concerned of having asserted in his answer to plaintiff's petition for modification of the decree that the issue covered by the quoted finding was res judicata and not open to question in this proceeding. With this position the trial court agreed. The difficulty arose because in considering the finding the court read it differently than did the defendant.
Under the circumstances, we do not perceive how defendant, having pleaded res judicata, can now be heard to complain that the finding was ambiguous. Fischer v. Rakagis, 59 N.M. 463, 286 P.2d 312. Neither are we convinced that the rules of res judicata as heretofore announced by this court in numerous cases including Jahren v. Butler, 20 N.M. 119, 147 P. 280; Costilla Estates Development Company v. Mascarenas, 33 N.M. 356, ...
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