Merrill v. Merrill
| Decision Date | 22 March 1971 |
| Docket Number | No. 9124,9124 |
| Citation | 1971 NMSC 36,82 N.M. 458,483 P.2d 932 |
| Parties | Lester MERRILL, Plaintiff-Appellee, v. Margaret Ann MERRILL, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
By motion, plaintiff-father requested a modification of previous orders respecting custody of three minor children who had been awarded to defendant-mother. After hearing in the District Court of Curry County, New Mexico, custody was changed to plaintiff, with visitation rights awarded to defendant. Defendant appeals.
Complaint for divorce was filed November 30, 1967. A child custody and support agreement was entered into by the parties on February 13, 1968. The final divorce decree was entered of record on February 15, 1968, confirming the agreement which awarded custody of the minor children to defendant. Plaintiff, having remarried two months earlier, filed a motion on June 13, 1968, seeking a modification of the divorce decree, to change custody of the children to him. After hearing, the court denied plaintiff's motion on the ground there was not a sufficient change in circumstances to warrant a change in custody. On June 25, 1970, plaintiff again filed a motion seeking modification of the divorce decree with respect to custody of the children. The court, after hearing, granted the motion and changed custody of the children to plaintiff by order entered August 13, 1970. On August 19, 1970, defendant filed her motion requesting the court to make findings of fact and conclusions of law, and also filed her requested findings of fact and conclusions of law. On August 24, 1970, plaintiff filed his requested findings of fact and conclusions of law.
Under Rule 52(B)(a)(1), Rules of Civil Procedure , the trial court was obligated to make and file findings of fact and conclusions of law, because factual determinations were necessary to a proper decision of the case. This he failed and refused to do, possibly on the basis that defendant's requested findings and conclusions were filed on August 19, 1970, six days after entry of the order modifying the final divorce decree. This was error as Rule 52(B)(b), Rules of Civil Procedure , clearly states that:
'Upon motion of a party made not later than ten (10) days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. * * *' (Emphasis added.)
Defendant principally contends that the court erred and abused its discretion in entering its order of August 13, 1970, which modified the child custody provisions of the previous divorce decree and order.
'The trial court is vested with great discretion in awarding the custody of (minor) children and we cannot reverse unless the court's conclusion about the best interests of the children is a manifest abuse of discretion under the evidence in the case. * * *'
Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968).
In a proceeding to modify a provision for the custody of minor children, the burden is on the moving party to satisfy the court that circumstances have so changed as to justify the modification. Every presumption is in favor of the reasonableness of the original decree. Kerley v. Kerley, 69 N.M. 291, 366 P.2d 141 (1961).
The principal question before us is whether there has been a sufficient change of circumstances, since the original divorce decree was entered, to require modification. We cannot say that plaintiff's remarriage, having a stable home, that defendant may move to Albuquerque (Garcia v. Garcia, 81 N.M. 277, 466 P.2d 554 (1970)), or the fact that the defendant did not force the children to visit the plaintiff, constitutes a sufficient change in circumstances to warrant a modification of the original divorce decree. The record has been searched and it does not reveal a material change of circumstances bearing upon the necessity or the justice of modifying the custody provision contained in the original divorce decree. A change of custody is not permissible except upon a showing of a material change of circumstances. Stone v. Stone, 79 N.M. 351, 443 P.2d 741 (1968).
In all custody questions, the primary concern should be the best interest and welfare of the children. Terry v. Terry, 82 N.M. 113, 476 P.2d 772 (1970). In the case before us,...
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