Rhinehart v. Nowlin

• Decision Date: 18 December 1990
• Docket Number: No. 11839,11839
• Citation: 1990 NMCA 136,805 P.2d 88,111 N.M. 319
• Parties: , 59 USLW 2496 Kathleen M. RHINEHART, Petitioner-Appellee/Cross-Appellant, v. Bruce C. NOWLIN, Respondent-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 88

805 P.2d 88

111 N.M. 319, 59 USLW 2496

Kathleen M. RHINEHART, Petitioner-Appellee/Cross-Appellant, v. Bruce C. NOWLIN, Respondent-Appellant/Cross-Appellee.

No. 11839.

Court of Appeals of New Mexico.

Dec. 18, 1990.

[111 N.M. 321] Mary E. Lebeck, Cynthia A. Fry, Lebeck & Fry, P.A., Albuquerque, for respondent-appellant/cross-appellee.

William J. Lock, Albuquerque, for petitioner-appellee/cross-appellant.

OPINION

APODACA, Judge.

The original opinion filed October 25, 1990 is hereby withdrawn, on the court's own motion, and the following opinion is substituted in its place.

Respondent (father) appeals the trial court's judgment granting petitioner's (stepmother) contempt motion, denying father's motion to rescind an order of the trial court stipulated to by the parties (the stipulated order), and sanctioning father for contempt. Stepmother cross appeals the trial court's judgment vacating the stipulated order and denying her request to be awarded physical custody of father's two minor children. Father essentially raises two issues on appeal: (1) whether the trial court, as a matter of law, lacked subject matter jurisdiction to approve, construe, modify, or enforce the stipulated order; and (2) whether the trial court erred in imposing $20,000 in contempt sanctions. On her cross-appeal, stepmother claims the trial court, under its statutory mandate to protect the best interests of the children, abused its discretion in vacating the stipulated order and in not changing custody. Both parties request attorney fees on appeal.

This appeal presents an issue of first impression in New Mexico: whether a stepparent has any right, as a matter of law, to either visitation or custody of his or her spouse's natural children. Because we determine that the custody issue was not properly before the trial court, we only address the visitation issue. We hold that the trial court had subject matter jurisdiction and did not abuse its discretion in imposing sanctions against father. We therefore affirm the trial court's judgment.

HISTORY OF PROCEEDINGS

In May 1987, stepmother filed a petition for divorce against father, following three and one-half years of marriage. A month later, she amended her petition, seeking, among other things, a time-sharing arrangement with respect to father's two minor children from a prior marriage. At that time, the children, Nigel and Joel, were seven and six years of age respectively.

In October 1987, the parties entered into the stipulated order, in which they acknowledged that a dispute existed on the question of whether stepmother had any legal rights regarding the children. In spite of their dispute, however, under the stipulated order, they agreed to visitation between stepmother and the children, provided for mediation or arbitration by a court-appointed psychologist, and recited that "[t]his order ... does not constitute an acknowledgement by [father] of any legal rights [that mother] may have regarding the children." The provisions of this stipulated order were adopted in the parties' marital settlement agreement, which in turn was incorporated into the final decree filed in December 1987.

Beginning in May the next year, the parties filed a series of motions concerning stepmother's visitation privileges. On May 4, stepmother filed a motion for an order to show cause why father should not be held in contempt for violating the visitation provisions of the stipulated order. On May 16, father filed a motion to rescind the stipulated order. The trial court held numerous hearings on these motions. At one point, the court, sua sponte, questioned whether it had subject matter jurisdiction to enforce, rescind, or modify the stipulated order. In a memorandum order dated July 22, however, the court concluded that it did have subject matter jurisdiction to make these determinations.

On June 28, 1989, after additional hearings, the trial court filed extensive findings of fact and conclusions of law. The court entered its final order granting stepmother's motion and request for sanctions and denying father's motion to rescind the stipulated order. The court also held that the visitation provisions in the stipulated order were no longer in the children's best interests and vacated the stipulated order. In connection with the contempt sanctions, the court awarded judgment against father in favor of stepmother in the amount of $26,074.49. Of this amount, $3,000.00 constituted sanctions imposed against father for increased attorneys' fees resulting to stepmother, unreasonable litigation conduct and failure to comply with reasonable discovery. The sum of $3,500.00 sanctioned father for civil contempt of the court's orders ordering father to produce his children for an interview with a court-appointed psychologist and directed that he pay stepmother this amount towards her attorneys' fees. The amount of $16,500.00 was a sanction for father's civil contempt in violating the stipulated order. Finally, $2,074.49 represented legal costs awarded to stepmother.

FACTS

Father and stepmother were married October 22, 1983. At that time, father had custody of the two minor children, subject to visitation rights granted to the children's natural mother (mother). Stepmother began developing a familial relationship with the children when Nigel was approximately three years old and Joel was one and one-half years old. Except for brief separations, she lived with them on a full-time basis during the parties' marriage, until their separation in the spring of 1987. During the marriage between the parties, however, father was the primary parental figure for the children. Since mid-1983, because the children had only limited contact with their mother, stepmother became the major maternal influence in their lives. The relationship between the parties before, during, and after their marriage was characterized by extreme conflict, fighting, chaos, and periods of separation.

Nigel has had a history of adjustment problems in school and psychological difficulties since he attended kindergarten. These problems were primarily attributable to prior child abuse by a stepfather, the abrupt loss of his relationship with his mother, and conflict between his natural parents. While attending kindergarten, Nigel entered therapy with a psychologist, Dr. Christine Nicholson. His primary bonding was with father, but he also developed a positive and important psychological parent-child bond with stepmother. Nigel's treatment with Dr. Nicholson ended in January 1987.

For several months after the parties' separation in the spring of 1987, stepmother visited with the children but not under a formal visitation schedule. The parties then entered into the stipulated order in October 1987. Pursuant to the terms of this order, the parties consulted a psychologist, Dr. Karl Koenig, to discuss and resolve disputes regarding visitation and communication. During this time, however, the children were exposed to many loud and hostile scenes between the parties concerning disagreements over the children. This conduct was found by the trial court to be harmful to the children. In February or March of 1988, Nigel began exhibiting severe emotional distress and many of the same serious behavioral problems he had experienced after separation from his mother. Although both parties contributed to the children's suffering from exposure to the conflict, the trial court apparently found that father was primarily responsible for the level of the conflict.

In April 1988, father took the children out of school and unilaterally terminated stepmother's physical visitation with the children. The incident giving rise to father's action was as follows: Nigel had been seeing the school counselor for several months, without stepmother's knowledge. One morning, Nigel told stepmother about the counselor. Stepmother insisted on talking to the counselor, who refused to speak to her. During the course of that day, Nigel became extremely anxious and agitated about the prospect of stepmother questioning him further after school about the counseling. For that reason, he was unable to do his school work or behave appropriately in class. As a result, the counselor telephoned father to take Nigel home from school.

After the incident, father made no further attempts to comply with the visitation provisions of the stipulated order. In September, while the proceedings giving rise to this appeal were pending, father unilaterally terminated stepmother's telephone contact with the children. Since then, the emotional condition of Nigel has not returned to normal, and the children have not significantly thrived and improved emotionally.

Even though the trial court found that it would be in the children's best interests to continue visitation with stepmother, it held that, because of the extreme hostility and animosity between the parties, it would not be in the children's best interests to continue court-mandated visitation. Because the trial court believed that father's actions and conduct were unlikely to change in the future, it vacated the stipulated order. Although the trial court held that father did not act in the best interests of the children in preventing contact with stepmother, it nonetheless concluded that father was otherwise a fit if not exemplary parent. The court also denied stepmother's request for a change of custody.

DISCUSSION

A. Jurisdiction

We first address whether the trial court had subject matter jurisdiction to approve, construe, modify, or enforce the parties' stipulated order granting visitation rights to stepmother. We determine that trial courts, in proceedings for dissolution of a marriage, have the power and authority to execute, modify or vacate any order involving the guardianship, care, custody, maintenance and education of minor children. See NMSA 1978, Sec. 40-4-7(B), (C) (Repl.Pamp.1989). Specifically, trial courts are given...