*1
319
jurоr
preconceived
way
fendants
because the
was
reason that
had no
interest in
unqualified
disqualified,
rather than
Sec-
Weiss,
witnesses testified.
v.
State
Cf.
apply.
disagree
tion
not
38-5-2 does
(Ct.App.1986);
analysis.
with defendants’
Bigler,
State v.
98 N.M.
We therefore hold that Section 38-5-2 CONCLUSION. applies juror qualified to a never aswell juror qualified to a once is who wаs but juror We conclude that the in this case qualified. applies now That section qualified. We also conclude even “unqualified” juror in this There- case. qualified, if she defendants were fore, a prejudice defendant must show re- required prejudice to show not. sulting unqualified pres- juror’s from an circumstances, Under these affirm grand jury ence on the before this decision denying defendants’ will set aside an indictment. quash motion to the indictments. Traub, Davis v. IT IS ORDERED. SO (1977), proposition for the stands presence of an unauthorized CHAVEZ, JJ., APODACA concur. grand jury before the presumptively prejudicial to criminal Defen- defendants. argue
dants that under Davis even techni-
cal grand jury defects in are indictments
always prejudicial. presumptively Defen- misplaced.
dants’ reliance on Davis is problems pres-
The in Davis included the grand jury ence in the room prosecu- of a investigator tion and more than one wit- RHINEHART, M. Kathleen ness eyebrows, at a time. raised “[T]he Petitioner-Appellee/Cross-Appellant, voice, questioning the tone of [or] glance” from prosecution investigator NOWLIN, jury other witness in the room influ- could Bruce C. testimony Respondent-Appellant/Cross-Appellee.
ence the of the seated witness. investiga- Id. at at 1018. No. 11839. polluted tor and the other witness the se- Appeals Court of of New Mexico. crecy jury process grand in Davis. disruption secrecy dis- in turn Dec. uninhibited, rupted hopefully truth- ful, flow of information from witnesses.
Id. here, how
Under the circumstances
ever, presume prejudice. is not rational disruptive nothing inherently
There is presence grand juror
about the of a who *2 construe, approve, jurisdiction
matter order; modify, or enforce the the trial court erred whether $20,000 sanctions. imposing *3 stepmother cross-appeal, her claims the On court, statutory under its mandate to trial children, protect the best interests vacating stipu- its discretion in abused changing custody. in not lated order and parties request attorney ap- fees on Both peal. appeal presents an issue of first
This step- in impression New Mexico: whether law, parent any right, as a matter of or her either visitation or of his natural, spouse’s children. Because we de- custody issue termine that court, properly before We hold that address the visitation issue. subject jurisdic- trial court had matter its discretion in tion and did not abuse against father. sanctions imposing judgment. therefore affirm the trial court’s HISTORY OF PROCEEDINGS May stepmother petition filed a In father, against following three for divorce Lebeck, Fry, Mary Cynthia E. A. Lebeck years marriagе. A month and one-half P.A., Fry, Albuquerque, respondent- for & later, petition, seeking, her she amended appellant/ cross-appellee. things, time-sharing ar- among other respect to father’s two mi- rangement with Lock, Albuquerque, peti- for William J. prior marriage. At nor children from a tioner-appellee/cross-appellant. Joel, time, children, Nigel and age respective- years and six were seven OPINION ly- APODACA, Judge. parties entered into In October original opinion filed October order, they stipulated in which acknowl- withdrawn, court’s hereby on the dispute ques- edged that a existed motion, following opinion is and the own any legal stepmother had tion of whether place. in its substituted spite rights regarding the children. however, stipulated dispute, under the (father) appeals the trial their Respondent order, they agreed to visitation between petitioner’s judgment granting motion, provided for stepmother and the denying fa- (stepmother) by court-appoint- or arbitration of the mediation motion to rescind an order ther’s “[tjhis (the and recited that psychologist, ed stipulated trial court an acknowl- does not constitute order), sanctioning father order ... legal rights edgement by Stepmother appeals cross contempt. [father] for regarding the chil- may have vacating stip- judgment the trial court’s [that mother] provisions of this request dren.” The denying her to be order and ulated parties’ marital adopted two order were physical custody of father’s awarded agreement, which turn was settlement essentially raises minor children. Father decree filed incorporated into the final appeal: whether the two issues on law, December 1987. court, subject lacked as a matter of gan
Beginning May year, par- developing relationship a familial next Nigel approximately concerning the children when series of motions ties filed a years three old and Joel was one and one- privileges. May On years Except separa- for half old. brief 4, stepmother a motion for an order to filed tions, she lived them on a full-time why father should not be held show cause marriage, during parties’ basis until violating pro- separation spring their of 1987. 16,May stipulated order. visions of the On During marriage parties, bеtween the stipu- father filed motion to rescind however, the primary parental father was The trial court held numerous lated order. mid-1983, figure for the children. Since point, hearings one on these motions. At *4 only limited because the children had con- court, sponte, questioned sua whether mother, stepmother became tact their subject to jurisdiction it had matter en- major maternal influence their lives. force, rescind, modify stipulated or- relationship parties The between the be- In order dated der. a memorandum fore, marriage during, and after their however, the court concluded that by conflict, fighting, characterized extreme jurisdiction subject matter to make have chaos, periods separation. these determinations. Nigel history adjustment has had On June after additional hear- problems in psychological school and diffi- ings, findings the trial court filed extensive kindergarten. he culties since attended fact law. The and conclusions of problems primarily These were attributable granting stepmoth- entered its final order prior stepfather, child abuse request er’s motion and for sаnctions and abrupt relationship loss of his with his denying stip- father’s motion to rescind the mother, and conflict between his natural order. The court also held that the ulated parents. attending kindergarten, While Ni- stipulated provisions order visitation gel therapy psychologist, entered with a longer no were children’s best inter- primary Nicholson. Dr. Christine His stipulated ests and vacated the order. In father, bonding he was with also devel- but sanctions, connection with the positive important psychological oped a judgment against father in court awarded parent-child stepmother. Nigel’s bond with $26,- stepmother in the amount favor Dr. Nicholson treatment with ended Jan- $3,000.00 amount, this consti- 074.49. Of uary 1987. imposed against tuted sanctions father for parties’ sep- For several months after the resulting step- attorneys’ increased fees spring stepmother aration in the mother, litigation conduct unreasonable visited with children but not under a comply and failure to with reasonable dis- parties The formal schedule. $3,500.00 covery. The sum of sanctioned stipulated then entered into the order in contempt of the court's or- father for civil October 1987. Pursuant terms of ordering produce father to his children ders order, parties psycholo- this consulted a court-appointed for an interview with a gist, Koenig, Dr. Karl to discuss and re- pay step- that he psychologist and directed regarding disputes solve visitation and attorneys’ her mother this amount towards During time, communication. this how- $16,500.00 fees. amount ever, exposed many the children were contempt in for father’s civil vio- sanction parties loud and hostile scenes between the lating Finally, chil- concerning disagreements over the $2,074.49 represented legal costs awarded dren. This conduct was found stepmother. court to harmful to the children. In FACTS February began Nigel or March of stepmother Father and were married Oc- exhibiting severe emotional distress and time, prob- At had many tober father of the same serious behavioral experienced subject separation minor he after two lems had Although both granted to the children’s from mother. to visitation suffering (mother). Stepmother from contributed to the children’s natural mother be- conflict, exposure to the the trial court DISCUSSION primarily
apparently found that father was
A. Jurisdiction
responsible for the level of the conflict.
We first address whether the trial
subject
jurisdiction
court had
ap
matter
April
the children
took
construe,
prove,
modify,
par
or enforce the
unilaterally
out of school and
terminated
granting
ties’
order
stepmother’s physical visitation with the
stepmother.
We determine that
giving
children.
incident
rise to fa-
courts, in proceedings
for dissolution
Nigel
ther’s action was as follows:
marriage,
power
of a
and authori
seeing the school counselor for sever-
been
execute,
ty
modify
or vacate
months,
al
without
knowl-
involving
care,
guardianship,
custody,
edge.
morning, Nigel
stepmother
One
told
maintenance and education of minor chil
Stepmother
about the counselor.
insisted
40-4-7(B), (C)
dren. See NMSA
talking
counselor,
who refused to
(Repl.Pamp.1989). Specifically, trial courts
speak
During
to her.
the course of that
given
jurisdiction
are
exclusive
of all mat
day, Nigel
extremely
became
anxious and
care,
relating
the guardianship,
ters
cus
agitated
prospect
stepmother
about the
*5
tody, maintenance and education of the
questioning him further after school about
grant
children. Id. We conclude that the
reason,
counseling.
For that
he was
ing
per
of visitation
to a
unable to do his school work or behave
sons
who
court determines are
result,
appropriately in class. As a
significant
important
to the welfare of
telephoned
Nigel
counselor
father to take
part
the children is a
of the trial court’s
home from school.
grant
power.
We thus hold that
subject
jurisdic
trial court here had
matter
incident,
After the
father made no fur-
approve
modify
tion to
and later enforce or
attempts
comply
ther
with the visitation
stipulated
order.
provisions
Sep-
In
argument
jurisdictional
Father’s
tember,
proceedings giving
while the
rise
equates
essentially
issue
visitation to custo
appeal
pending,
to this
were
father unilat-
dy. He claims that visitation is a limited
erally
stepmother’s telephone
terminated
custody.
form of
Perry
Superior
v.
then,
contact
the children.
Since
County,
Cal.App.3d
Court
Kern
Nigel
emotional condition of
has not re-
480,166
(1980);
Cal.Rptr. 583
59 Am.Jur.2d
normal,
turned to
and the children have not
(1987).
Parent
and Child
Father
§
significantly
improved
thrived and
emotion-
then asserts that the defeat of Senate Bill
ally.
488, exempting stepparents
custody
though
Even
the trial court found that it
having
claims from
to show the natural
would be
children’s best interests to
unfitness,
parents’
legislative
indicates a
stepmother,
continue visitation
it held
custody
not
intent
to allow
or visitation
that,
hostility
because of the extreme
and rights
stepparents.
animosity
parties,
between the
it would not
legislative
We first address father’s
in-
be in the children’s best interests to contin-
argument
perceives
tent
on what he
based
ue court-mandated visitation. Because the
pertinent legislative history
to be the
rele-
trial court believed that father’s actions
that,
appeal.
vant to this
We note
other
unlikely
change in
and conduct were
compiler’s
than the
notes contained in our
future,
it vacated the
order. Al-
statutes,
annotated
and an examination of
though the trial court held that father did
language
question,
of the statute in
no
not act
the best interests of the children
legislative history
formal
of record exists
stepmother,
preventing
contact with
it declaring legislative
concerning al-
intent
nonetheless concluded that father was oth-
by
of child visitation
individuals
lowance
parent.
exemplary
erwise a fit
parents.
other than the children’s natural
stepmother’s request
regard,
agree
court also denied
In this
change
custody.
argument
reports
that use of committee
as
192,
(1986);
determining legislative
Rodriguez,
v.
N.M.
guide
judicially
State
(Ct.App.1984).
development
679 P.2d
depends solely
intent
on
report
some
standing committee
this
Applying
principles
these review
recommendation.
thing more than a mere
legislature did
appeal, it is clear that the
Singer,
Statutory
2A
Con
N.
Sutherland
custody
rights.
equate
visitation
1984).
(4th
rev.
struction
48.06
ed.
§
statutes,
taken
pertinent
believe the
by
sup
relied on
father do not
authorities
legislature’s
together,
intent
reflect
history
interpretation
legislative
port his
grant
wide discretion in award
trial courts
legislative committee actions in
based on
ing
custody or
based on
either
legislative history.
recorded
states without
children, subject to
the best interests of the
appeal
supported
Points on
authori
parentаl preference
custody
doctrine
1986,
ty will not be reviewed. See SCRA
only.
matters
See NMSA
12-213;
Re
Albuquerque
v.
Bd.
Wilson
40-4-9.1(K) (Repl.Pamp.1989);
see also
§
(1970),
altors,
(Repl.Pamp.
NMSA
40-4-7 to -9.1
§§
grounds,
overruled
other
Garrett
1989);
(Repl.Pamp.
NMSA
40-9-1
Corp.,
Nissen
1989).
fa
We therefore decline
review
disagree
We also
with father’s conten-
legislative history argument.
ther’s
is a
tion that visitation
limited form
Instead, we follow New Mexico’swell-es-
40-10-3(B)
custody. NMSA
Section
statutory
principles for
construc-
tablished
custody
(Repl.Pamp.1985) differentiates
statute,
construing a
tion.
the court
including
and visitation
give effect to the intention of the
must
An award
within
determinations.
*6
legislature.
Corp.
Hes-
Mach.
v.
Smith
designated
custody
of
involves more than
245,
ston, Inc.,
N.M.
able sanction; (3) $3,074.49 for compensatory step- and that covery sanctions were costs, including fees. None- expert witness prevailing party. the mother was theless, challenges father present sanction not im The following step- the amounts
award of
$16,500
stepmother’s
posed
punish
preserve
attor-
or to
mother:
toward
neys
father’s civil con-
fees as sanction for
court.
ex
authority of the trial
State
rel.
$3,500
tempt;
attor-
toward
Greenwood,
63 N.M.
Bliss v.
contempt
neys
civil
fees as
additional
(1957). The
expressly
trial court
stated
violating the court’s orders of
sanction for
imposed to
the sanctions were not
Father contends the
20 and
1988.
compliance
or
coerce
awarding
erred in
thе additional
trial court
However,
der.
the court
indicate that it
$20,000
(1)
contempt
sanction because:
imposing
compensate
sanctions to
purpose
and nature
was criminal
one
stepmother,
aggrieved party,
as
proce-
provide
required
court failed to
The
purposes
contempt.
for
civil
process; and
if the sanctions
dural due
not be in the
court determined that would
contempt, the trial court
were for civil
best
interests to continue en
children’s
was no
its discretion since there
abused
forcement of court-mandated visitation.
finding
support
evidence to
substantial
step
court nevertheless concluded
support
contempt
civil
and to
the allocation
compensated
legal
should
for
mother
of fees.
fees and costs incurred because of father’s
contempt
stip
unreasonable
of not
Contempt
or Criminal?
—Civil
of later orders. The
ulated
but
adopt
decline to
father’s char
clearly compensated stepmother
award
contempt proceedings
acterization
legal
costs incurred due
father’s unrea
Instead,
purpose
and nature.
criminal
sonable and unilateral conduct. Because
sanctions were civil in
we conclude
purely
determine
sanction was
com
nature,
the trial court.
as characterized
pensatory, father was
entitled
puni
purpose
When the
sanction
safeguards
procedural
to criminal
essential
tive,
proceeding
is one of criminal con
proceedings.
tempt,
paid
the sanction is
to the court.
Feiock,
Feiock v.
Hicks on Behalf of
Having
concluded that
con
624, 108
2. The Order thus hold court met. We trial did supports finding that father The record awarding its step- not abuse discretion time-sharing agreement in the knew the compensatory legal fees and mother costs procedure stipulated order and of the incurred as a direct result of father’s civil agreed upon by parties its modifica- for the stipulated order. by at the Represented tion. trial counsel order, time, agreed stipulated father July 3. The Orders incorporated in marital set- which was in the approved trial court’s final tlement noncompliance As a result of father’s Testimony at decree. trial revealed order, stipulated with court preparing father had been to either me- hearings held numerous on litigate diate to the visitation or alterations contempt motion and father’s motion to spelled stipulated out arrangement in the hearing on July rescind the order. After a order. The trial court could find father hearing the court rescheduled knowledge stipulated had order. July purposes completing for for the comply respect ability testimony With to father’s obtaining a current evalua- order, with there was suf- represent- conclude children. tion of the Father was support counsel, ficient evidence record to object who ed Dr. April 15, finding. such a Until father appointment Koenig’s to interview the сhil- apparently complied stipulated with or- time, dren. At that father’s counsel was difficulty. Stepmother der had without that the aware interview with children significant periods shared of time with place July to take before hear- children under the order. There was evi- ing. dence Dr. that the had worked with July Koenig Dr. On scheduled ten- mediator, to Koenig, as resolve conflicts appointment July interview tative revolving controversies around the visi- asked check counsel Father was arrangement.
tation Father had been com- telephone concerning the interview. He order, plying and the Instead, July failed to do so. fa- implicitly trial he the abili- found had counsel delivered a letter to the ther’s ty comply Father also order. court, objecting proposed order complied could have with the court-mandat- Koenig’s Dr. To address fa- interview. procedures modify ed to either or vacate objection, ther’s trial court held ex- order. hearing. Immediately after pedited this Instead, willfully comply he refused to July 20 hearing, the court entered the or- April uni- with the order. father authorizing Dr. Koenig to interview the der stepmother’s visitation laterally terminated July 21, On the court entered a children. spelled out in the order. If he believed specific supplemental setting in- unworkable or harmful to order was Friday, July time for 11:00 a.m. on terview pur- could either tried father but 22. Counsel to reach Koenig initi- sued with Dr. modification unsuccessful; father left the state on proceedings seeking modifica- ated court trip 21 for a to Colorado. business After fa- tion or vacation finding *9 adopted court a of fact The trial visitation, ther’s unilateral termination “[bjefore left with the chil- that [father] * * * he the the court found record indicates trial 21, July he was on 1988 aware dren to meet made a half-hearted effort set hearing continued had been on that a Koenig. The trial court could with Dr. show other motions order to cause and noncompliance that properly conclude his Monday, July 25,1988; Koenig Dr. that for legal reme- stepmother to resort to forced attempting up to set an interview with was the order. There was suffi- dies to enforce in with this hear- the children connection noncompliance. willful cient evidence proposed for an evalua- ing; that a order Koenig had been of the children Dr. that the trial court was tion We conclude court, that the court and requirements all submitted entitled to find that three 328 Requirement 1988, Prevailing Party 14, such inter- suggested on 4. July
had messages attorney left two His had views. argues that, Father even him call.” answering his machine for to on step contempt, were for civil sanctions “conduct The court also found the father’s compensation, is not mother entitled July, in making children unavailable in prevail did on the merits in since she 1988, was willful.” Fink, original supra at suit. See 55. result, hearing July As a 25 was disagree. Although the We trial felt Sep- set hearings were for cancelled. New portion that compelled to vacate Father, 21, 14 1988. tember and December visitation, mandating be August shown his motion set the as parties’ damaging effect the cause Koenig’s for Dr. interview of the terms continuing having the chil conflict was on continuing of his well aware was dren, precipitated this court action was not obligation comply with the orders by, to, question or related of father’s Yet, arrange 20 July and 21. he failed noncompliance. Stepmother clearly was appointments. Based the court-mandated in prevailing party. Father failed his facts, these we conclude that father had on to rescind the motion orders, knowledge July actual Stepmother prevailed on her motions to ability comply, yet willfully re- cause, contempt, hold father show reflects fused to do so. The record he took attorney Judgment for fees and costs. regard. no action whatsoever that $26,074.49. against entered father for clearly support These facts though stepmother Even did succeed finding that was aware of court's eventually in for her further claims visita Koe- the court-mandated interview with Dr. custody, party tion or a does not have to continuing obligation com- nig and his prevail “prevailing all issues to be Findings of ply with the orders. fact that Mal party” attorney for an award of fees. supported by substantial evidence will are Co., (Alaska 512 Penney vo v. J.C. appeal. not be disturbed on See Tome 1973). Silva, Improvement 83 Land & Co. 549, (1972). If the evi-
N.M. Allocation of Fees dence shows that trial decision on relevant evidence as reason- is based argument do not reach father’s that might accept adequate, mind able attorney improp- allocation fees was decision should be affirmed. trial court’s er. re Father cites In Hooker Co., 78 Tapia v. Steel Erectors Panhandle attorney proposition that an award of fees (1967). 428 P.2d 628 N.M. aggreived by contempt party to a is limited investigating the amount incurred if we determined that father Even However, prosecuting contempt. knowledge actual argu- determine father waived this orders, he had constructive we believe appeal, ment on since was not raised knowledge. party upon puts Whatever docketing below or his statement. party “notice” and the inquiry sufficient Romero, Romero v. P.2d duty inquire charge he will (Ct.App.1984). Father contends the facts. Johnson v. able all attorney an attack on the allocation fees P.2d Ryan, attempts implicit Co., 37 N.M. Taylor v. Hanchett Oil against court to defend sanc- (1933), the court held tion, citing Zeman v. German mean “knowledge necessarily does not Lufthansa ” 1985). Airlines, (Alaska He added.) knowledge.’ (Emphasis ‘actual *10 however, explain, contentions does not how Knowledge that of circumstances would regarding implicit fees in allocation of was prudent ordinarily man to reasonable lead a any presentations arguments or in of investigation facts is the of the actual the court. notice.” Id. equivalent of “constructive indispensable any in deter- party an action Rights to Either Stepparents’ Legal C. mining custody her children and that the Custody of or Visitation dismissing step- err in trial court did not stepmother argues cross-appeal, In her change custody. mother’s claim for of failing in to con- the trial court erred that holding, not As a result of our we need privileges under the tinue the visitation stepparents reach the issue of whether grant custody- her stipulated order or to standing parentis may in loco be awarded statutory the mandate of the based on best custody spouse’s natural children. the 40-4-7, . of the child. -9. For interests §§ follow, reasons that we conclude that the its did not abuse discretion 2. Continuation of Visitation vacating provisions of the in either the disagree stepmother’s We ar dismissing stepmoth- order inor gument the trial court its dis that abused request custody. er’s refusing in cretion continue the visita provisions in tion of the Change Custody force. that suffi We determine there was custody the respect With is support cient in the record evidence sue, agree trial court with the that that visi decision court-mandated properly was not before court. issue tation, continuing conflict view of request an Stepmother award of parties, would in the between the not be custody previous of her
physical
Eding
best interests of
children. See
in
Although
motions.
there was evidence
349, 176
Edington,
ton v.
objection
may'
without
at trial that
troduced
(1947) (the
of the child is the mat
welfare
theory
change
have been relevant to a
concern, paramount
primary
ter of
to the
custody, the
was
rele
same evidence
also
disagree
step
of parents).
wishes
We
to the
vant
issues
mother’s contention that termination of vis
being litigated by
parties.
that were
contrary to the
itation was
trial court’s
When
evidence introduced
relevant to
finding
in the
that it was
children’s best
parties
other
some
issue and
do
their
interests to cоntinue
visitation with
recognize
issue
squarely
it as an
stepmother,
light
parties’ dispute.
trial,
try
consent to
issue
that
cannot
Gideon,
implied. Rice v.
Ideally,
parties
capable
been
Moore,
(Ct.App.1974);
3 J.
animosity
controlling
hostility
to-
their
Practice,
Federal
15.13
Moore’s
U
another,
agree
ward one
we would
that the
itself
The court
concluded
the issue
con-
may
trial court
well have found that
express
was not tried with either the
or
tinuing
would
implied
parties.
consent of the
best interests. How-
been
the children’s
ever,
replete
evidence of
record is
Likewise, we
the trial court cor-
believe
many
angry
be-
loud and
confrontations
rectly concluded that the children’s mother
regarding
parties
tween the
visitation.
indispensable
party
to determina-
testimony
expert
There
adduced that
custody. The
tion of the children’s
moth-
plac-
exposure
intense conflict was
to such
been
parental
er’s
had never
termi-
Nigel,
ing
especially
under
fact,
grant-
mother had been
nated.
Nigel’s
at
intolerable stress.
behavior
could
ed visitation
be substan-
significant-
begun to deteriorate
school had
tially
change
affected
ly.
Koenig,
psychologist,
Dr.
testified
Parties,
service,
subject
stepmother.
impact
the chil-
that the
harmful
severe
joined
they
claim an interest
shall be
parties’
con-
dren was not
due
relating
action
subject
to the
and are
flict,
fact
mostly
but
that the
disposition
ac-
so situated
inevitably
the children into the
would draw
may,
practical
in their absence
tion
that,
parents
if the
matter,
conflict. He also stated
impair
ability
impede their
pattern
hostility,
change
their
could
protect that interest. SCRA
1-019.
it would not be
the best interests
conclude that the children’s mother was
*11
1987);
Blake, 102 N.M.
visita-
Blake v.
to continue court-mandated
children
(Ct.App.1985). This case
P.2d 838
involved
tion.
issues,
significant
petitioner
and
several
that the trial
previously
We determined
prevailed
respon
in
with
connection
change
jurisdiction modify or
court
citation,
contempt
appeal on the
as
dent’s
respect
guardianship,
to the
any order
attorney
fees
well as on
award of
be
maintenance,
of
care, custody,
or education
award
We thus hold that an
low.
ren-
whenever circumstances
the children
$2,500.00
petitioner
in
attorney fees
is
change
just.
and
proper
such
dered
appeal.
warranted
Trial courts are vested
40-4-7.
§
flexibility in
great
discretion and
broad
CONCLUSION
par-
fashioning
arrangements and
enting plans
(1)
that will
the best inter-
summary,
serve
we hold
trial
Newhouse v.
jurisdic-
the children. See
subject
ests
court did not lack
matter
(Ct.
Chavez,
108 N.M.
view the evidence most favor- below, resolving to the result all con-
able DONNELLY, J., concurs. indulging in inferences in favor flict and all HARTZ, J., part in concurs of the decision. Nat’l Bank v. Har- Clovis part. dissents mon, 102 N.M. P.2d 1315 hold sufficient therefore that there was We HARTZ, Judge (concurring part supporting trial court’s deci- evidence part). dissenting in modify va- sion result, except I concur in I con- cating provisions. the visitation the ruling would reverse that father was in its that the trial court did not abuse clude contempt of the court’s order district vacating provi- discretion the visitation July and I would remand for sions findings further and conclusions re- alleged spect of the order Attorney Fees D. below, 20. For the reasons stated I Both seek an award of at join majority’s opin- much of the cannot torney respectively fees incurred in this ion. permits the appeal. New Mexico law attorney appeal fees on domes award I. CONTEMPT THE STIPULATED OF 40-4-7(A); relation cases. see Miller tic ORDER Miller, Upon Stepmother A. Grounds Which 40-4-7(A), (holding allowing that Section Rights Could Awarded Visitation expenses proceedings, applicable majority’s appeal). My to costs and fees on Various chief concern is the view may in deter a district factors are considered courts award visitation awarding long mining appropriateness at so as visitation is fees, That torney may such the relative success in the best interests of the child. appeal. policy, frivolity e.g. policy of an Lewis v. be desirable but it is not Lewis, Legislature. (Ct.App. adopted by Mexico New *12 rights below, equivalent. parental are legislature pro- has Yet explained As matters, surely they dispositive custody child in interests of the that the best vided is irrelevant when visitation rights fit natural and do not become way to the of give legislature spoken If has custody. of at stake. parents in matters adoptive policy, judiciary public in- matter of of the That same subordination child’s respect policy in matters of prevails respect should generally also terests and common-law legislature statutory interpretation Although the to visitation. Schaefer, Precedent may jurisprudence. be awarded See recognized that visitation 3, 18-22 categories persons Policy, other than 34 U.Chi.L.Rev. certain of (1966); Eisenberg, particular, M. The Nature adoptive parеnts or natural of —in (1988). Law, and, 29-30 pertinent more to this Common grandparents case, parentis who stand in loco those —we composed of a right custody is of interests suggest should not that the best subsidiary rights, such of bundle consideration of the child regarding the power to make decisions of visitation. matters education, residence, religion. child’s 40-4-9.1(L)(2). precious rights, The most respect to custodial New See
With § right parental-prefer- parental rights is the adopted a strict these Mexico has 1978, 40-4-9.1(K) child. companionship care and New doctrine. NMSA ence right enjoy any per- parents fit would trade the (Repl.Pamp.1989) states: “When parent company power for the to determine adoptive a natural or child’s son other than child, person the child’s education or medical care. custody of a no such seeks custody showing shall be awarded absent a deny parent If cannot a fit custo- a court adoptive par- of unfitness of the natural non-parent, of a a court cannot dy favor legislation gives greater ent.” This 1981 precious deny parent a fit the most custodi- priority parents judicial than earlier deci- right right compan- the care and al —the sions, adopted presumption “a which non-par- ionship of the child—in favor of a interests of the minor the welfare and best Although an award of visitation ent. child will best be served not constitute rights to a third does parents natural and casts the burden right parent’s custodial a total denial contrary non-parent.” proving the companionship, to care and such award 490, 493, Scott, Shorty v. 535 P.2d substantially right. diminishes that There- fore, rights governing the law visitation parental prefer- expresses policy that a fit must take into account the The statute legislature in rights paramount expressed by ence Section parent’s custodial are 40-4-9.1(K). contrary par- In the absence of a interests. Even if the the child’s best policy by legislature, I expression to concede that a child would ent were parental that the family, parent another would conclude better off with companionship parents prevail fit over the best interests who treasures non-parent visita- custody. retain of the child matters child is still entitled to Kramer, nоn-parent custody. 455 U.S. tion as well as Compare Santosky v. 1394, 71 L.Ed.2d 102 S.Ct. are, however, contrary expressions There (1982) (natural parents have a funda- First, legisla- policy two statutes. care, custody, liberty interest mental provisions adopted specific relat- ture has children) management of their ing by grandparents. to visitation Note, Rights” Alternatives to “Parental (Repl.Pamp. -4 40-9-1 to NMSA §§ Custody Disputes Involving in Child 1989). provides explicitly This statute Parties, (1963)(criti- 73 Yale L.J. Third by grandparents visitation even without contrary cizing parental-rights doctrine as showing parents are unfit. One interests). to child’s expresses a might infer that the statute 40-4-9.1(K) awarding policy in public favor majority finds Section context, long as it is in the non-parents so
unpersuasive in the visitation of the child. One could also custody and are best interests pointing out that *13 appear Sec- infer, however, legislature enacted itation” does not elsewhere that the Nevertheless, 40-4-9.1). the defini- grandparent-visitation statute because tion the stat- by parents assumed in the absence of the recognition it that of visitation tion’s not be vis- grandparents par- ute could awardеd adoptive natural nor who are neither words, of rights other the award itation imprimatur to conclude ents is a sufficient —in (when non-parents the rights visitation to legisla- does not violate that such visitation fit) only permissible are is when parents policy. tive by Both specifically statute. authorized statutory the Despite obscurity the of much enact- inferences read too into the “parent,” of I feel comfortable definition grandparent-visitation the statute. ment of persons who includes at least those it interpretation is more An intermediate Thus, parentis child. stand in loco with a Although the plausible: enactment of stepmother respect held that status with to grandparent-visitation suggests statute rights the an award of visitation regards of legislature that the an award was lawful. third as a rights person to a majority I the that we cannot infringement paren- agree with substantially lesser contrary legis rights custody, a denial of inference from tal than draw in- suggests pass that such an to introduced in enactment also lature’s failure a bill legisla- fringement requires provided per some sort of have various 1987 that would (nоt imprimatur necessarily explicit tive sons, including stepparents, rights to authorization). statutory many There are other custody. too rea why a does a law for sons bill not become closely more relates second statute us failure to infer that to enact bill means 40-4-9.1(L)(8) to this case. Section defines legislative rejection every substantive period of “visitation” as “a time available provision the bill.1 parent, under cus- to a noncustodial a sole tody during child arrangement, which a con- resides with or is under care and Stipulated to Enter the B. Jurisdiction parent.” Cf, trol the noncustodial Order 1978, 40-4-11.1(D)(2)(Repl.Pamp. NMSA § jurisdiction Father contests 1989) (defining pur- “basic visitation” for district court to enter the poses support). of child “Parent” is de- authority of court Given the the district parent, adoptive parent fined as “a natural award visitation to one who stands acting parent is as a who who argument parentis, loco father’s reduces legal has or of a child or shares stepmother not the claim did have right legal claims to have or who share parentis relationship an in loco with the 40-4-9.1(L)(4). custоdy[.]” defini- These § therefore children and the district First, prompt visi- tions two observations. jurisdiction sward her visitation by recognized is not non-parents tation rights. Conceding stipulated to that he Authority the definition of “visitation.” order, proposition relies on for such must be else- found subject-matter jurisdiction cannot be con-
where, grandparent-visitation as in the parties. Zarg- ferred consent Second, though statute. even natural Zarges, es 79 N.M. v. parents adoptive prefer- have an absolute (1968); Elwess, Elwess v. 73 N.M. respect custody, ence with see 40-4-9.1(K), types “parents” other parentis existence of an in loco rela- may rights. be awarded visitation To be not, however, sure, necessary 40-4-9.1(L)(8) tionship Section is a defini- jurisdiction on district purport tion and sub- confer court. does not establish (indeed, proper issuance of an purpose stantive law Just because unclear, requires particular of a definition because the word “vis- order existence Also, Act, Custody and its defi- Child Jurisdiction does not affect substantive designed encompass statutory (Repl.Pamp. NMSA 40-10-1 -24 nitions are §§ here, 1989), question is irrelevant to the bеcause schemes in other states. challenge at this right late date existence of not mean that the does fact stipulated order. He court to have factual necessary for the basis fact is paying for Mechanical & should be relieved from jurisdiction. See Sundance Atlas, stip- Corp. damage violation of the Util. caused (jurisdiction to hear ground that the order ulated order validity depend a claim does prospectively because of was later modified meaning “jurisdic- claim). Although subsequent events. *14 context, vary see at may with the id.
tion” (sometimes an 690, at error 1257 Contempt D. Nature of Sanction to mean “jurisdictional” that is labelled Violation of the Order appeal); for first time on may be raised majority’s opinion I concur in the (Second) Judgments, 11 Restatement contempt sanction was civil and (1982), meaning settled e it has a comment properly find that the district court could Mexico when the district court’s in New stipulated contempt of the father was jurisdiction challenged to order is enter an order. Patten, contempt proceeding. State in a 395, (1937)held in 69 931 41 N.M. P.2d THE II. CONTEMPT OF JULY ORDERS jurisdiction of the context that test “[t]he majоrity’s I from the affirmance power had dissent of court is whether or not it to a penalty comtempt of the for violation inquiry; not whether its upon enter July 20 and The district right of it was the orders of conclusion course 399, contempt (empha- apparently P.2d at 933 found father in wrong.” Id. at 69 court had no original). By that standard the dis- of of whose existence he sis orders jurisdiction undoubtedly knowledge. had trict court actual enter the order. Dial, 133,136, Dial v. 703 910, “knowledge (Ct.App.1985) 913 included of Father Ultimate Success C. elements among of the order” court's that he cannot be Father also contends necessary finding contempt. for a civil stipulated or- contempt in civil of the held 798, Hooker, 94 N.M. Accord In re contempt “this sanction der because [civil knowledge The need compensate contemptu- for due to losses order, so specific terms of the petitioner is available ous conduct] knowledge has of the long party as the original suit action wins his Mo- existence of the See General Fink, merits.” Basic Issues Civil Con- Corp., Chem. & Oil Corp. tors v. Gibson (1977-78). 55, 71 n. 62 tempt, 8 N.M.L.Rev. (E.D.N.Y.1986). 678, 681-82 F.Supp. Unfortunately, cites no case law article did not find that father The district court proposition, scope so its support of the 21 order the time July knew of the before proposition makes sense if it unclear. compliance for or that father knew merely relief is un- that remedial means days least after July 20 order for at several is later found if the order violated available follows: its issuance. The facts are as been invalid. United states v. to have hearings May held on district Workers, 258, 330 U.S. 294- Mine United alleged July 31 and father’s 91 L.Ed. 67 S.Ct. stipulated order and on in- remedial falls with an (right to relief to rescind the father’s motion prove was erroneous- junction which events July 14 order. At the conclusion of reason, however, issued). I see no ly a con- hearing court scheduled the district party a apply it relieve July hearing Monday, for tinuation of solely an order was later because sanctions Koenig should suggested that Dr. changed a circum- modified as result of current-status interview conduct a stipulation to the order Father’s stances. objec- no (at counsel voiced stipulation children. Father’s least for the constituted According tо order) suggestion. facts neces- tion of that to all purposes Finding “It was No. He no district court’s issuance of the order. sary to July 20 present at the re- Father was Koenig] should be resolved that [Dr. attorney the dis- hearing. Father’s advised so he this interview to conduct quested July 22 that he had not been court on July trict report the Court at could court’s order inform father of the able to hearing.” July Dr. 22 interview. On July for the attorney sub- July On ap- had made a tentative Koenig’s office court, copy mitted to the district the children for father and pointment with attorney, proposed appoint- father’s 20; his attor- to check with July father was an Koenig expert provide ing Dr. back, did not do so. On ney and call but concerning the court visita- evaluation left with his children father arrangements autho- tion Colorado, Aspen, been where rizing Koenig to conduct the evaluation Dr. of his previously scheduled to show some appropriate, and in manner he deemed art work. cooperate with Dr. ordering “to *15 father district court found that when carry out his di- The Koenig’s evaluation and Aspen, only time left for incident thereto.” rectives proposed order expressed in the constraint hearing continued he was aware that a E, read: paragraph was in which had set on the Order to Show Cause been Monday, July motions for Koenig provide his and other possible, If Dr. should 1988; Koenig attempting to in a that Dr. was and recommendations evaluation up set an interview with the children report distribute it to counsel written hearing; pro- with this that a parties prior hearing to the on connection for both of the chil- posed If there is insufficient order for an evaluation the merits herein. report prior Koenig to Dr. had been submitted provide to a written dren time Court, provided hearing, report the the shall be to the and that the Court itself July suggested at trial. such had on attorney left interviews. His had two accompanying proposed or- In a letter the answering messages on his machine for der, attorney the dis- advised him call. to Koenig agreed had to trict court that Dr. requested that time be see the children and As I understand the district court’s rul- attorney object shortened for father’s sanction, ing, imposed contempt the civil own, prеsent the form of order or his part, at least in because of father’s failure hearing contemplated July view of July prior orders to the comply with the attorney July 19 father’s deliv- date. On though July hearing, even scheduled objecting ered to the court a letter knowledge July no actual before father had order, any further evaluation proposed 25 that either order had been entered. The children, Koenig’s and to Dr. contin- finding made no of such actu- district court in the case. The letter ued involvement Therefore, knowledge. al requested hearing on the matter. also July sanction for violation of the orders hearing on cannot stand. The district court conducted immediately an July 20 and entered order finding A should not be proposed order submitted based party’s knowledge that based on required stepmother’s attorney. The order expressed court has a favorable view to- cooperate Koenig’s Dr. “to entering order at a future date. ward an directives,” carry interviews and out his the court to many things Too can cause paragraph pro- E of the but it eliminated respеct July change mind. With to the its any posed order and made no mention of order, assuming that father even knew time constraint. order, proposed of the terms proposed following day, July attorney objected had order The afternoon of the requested hearing argue against supplemen- court entered a the district bring presume should not that father requiring order father to the chil- it. We tal judge the order appointment Koenig Dr. at knew that the would enter dren to hearing objections Friday, July 22. after of father’s at- 11:00 a.m. on Indeed, III. actually order entered CROSS-APPEAL torney. proposed from the order July 20 differs stepmoth- agree majority I no of a time in that it contains mention custody properly er’s claim questionable whether fail- deadline. It is Although she the district court. before by July July 25 with the comply ure custody pleadings, sought had earlier contempt of have constituted order would sought custody she motion had not order, given travel particularly father’s pending the district court at before July 21 plans; probably why hearings leading judg- time of the July As for the order entered. appeal. district court ment on Because the order, finding by there was no the district ground, on that it is unnec- can be affirmed (and evidence) apparently no that fa- essary the natural to determine whether would ther knew that an order been or had visitation mother of who him to requiring bring the chil- be entered rights, was an indis- but on dren for an interview pensable party to a determination of the suggests majority custody. children’s knowledge required of one held in con- I agree also that we must affirm is constructive tempt knowledge of the district court’s denial only support Yet the violated. Although suggests stepmother. the record its view two New majority finds for are rewards for his mis- that this result con- quiet-title Mexico cases that discuss *16 making enforced visitation knowledge mining structive notice of a conduct— stepmother so to the children traumatic judicial claim and an unrecorded deed. The longer no inter- that it was in their best power to hold a appropriate remedy in such cir- ests—the power. policy extraordinary Sound coun- contempt, criminal con- cumstances is even exercising upon against power sels tempt. knowledge one constructive who
of the of the existence order violated. Finally, I dissent from the denial of oral
Therefore, I would remand instruc- argument in this case. (a)
tions to the district to set aside
any imposed consequence sanction July
father’s violation order
(b) im- to limit civil sanction
posed for violation 20 order
damages stepmother by caused to father’s
violation of that after father
knowledge its existence.