Cruсita Baca SANCHEZ, Petitioner-Appellee, v. William Steve SANCHEZ, Respondent-Appellant.
No. 9879.
Court of Appeals of New Mexico.
March 29, 1988.
Certiorari Denied May 10, 1988.
754 P.2d 536
DONNELLY, Chief Judge.
CONCLUSION
For these reasons, we affirm all four of defendant‘s convictions; however, defendant‘s sentence for the DWI conviction must be vacated. Accordingly, we remand to the trial court to vacate defendant‘s six month DWI sentence.
IT IS SO ORDERED.
DONNELLY, C.J., and MINZNER, J., concur.
Patsy D. Reinard, Socorro, for petitioner-appellee.
Michael E. Vigil, Marchiondo, Vigil & Voegler, P.A., Albuquerque, for respondent-appellant.
OPINION
DONNELLY, Chief Judge.
This is an appeal arising out of an extended dispute between the parties, William Sanchez (father) and Crucita Sanchez (mother), involving custody of their five-year-old daughter. The father asserts three issues on appeal: (1) whether the district court had jurisdiction over the par-
The parties were divorced on June 3, 1985 by a partial decree of divorce entered in the Socorro County District Court. Prior to entry of the partial divorce decrеe, both parties filed separate actions for dissolution of marriage and for child custody. The mother filed a petition for dissolution of marriage on February 12, 1985, in the Socorro County District Court; the father received service of process on February 18, 1985. On February 13, 1985, the father filed a petition for dissolution of marriage in the Valencia County District Court; the mother received service of process that same day. The father also obtained an order from the Valencia County District Court that same day granting him temporary child custody.
On February 22, 1985, a hearing was held in the Valencia County District Court concerning the temporary custody order; the mother and her counsel appeared and argued this issue. The court ruled that temporary custody should go to the father. The order, however, does not appear in the record before us.
At a hearing held in the Socorro County District Court on March 4, 1985, the father‘s attorney filed a special entry of appearance and a motion to abate the action, asserting that prior jurisdiction had vested in Valencia County because service of process was perfected there first. The Socorro County District Court entered an interim order finding that pursuant to
At the March 18 hearing, the district court reviewed and reaffirmed its interim order and concluded that it had exclusive jurisdiction and proper venue. The father was enjoined from prosecuting the Valencia County action under penalty of contempt. The Socorro County District Court again allowed the father to seek an interlocutory appeal, however, he made no application.
On April 2, 1985, the father‘s new counsel filed an entry of appearance in the Socorro County action, and at an April 3 hearing on temporary custody, his counsel expressly acceded to that court‘s jurisdiction. At this hearing the parties agreed to interim joint physical and legal custody, with alternating weekend visitation rights. At trial the mother conceded that she used marijuana and continued to use it at the present time. At least one witness testified that the mother had also sold marijuana.
On June 3, 1985, a partial decree of divorce was entered by the Socorro County District Court, together with a pretrial order detailing interim custody. Because transfer of the child between the parties had been acrimonious, the court prohibited the parties from having family or friends within five blocks at the time of the exchange. The partial decree of divorce expressly reserved all other remaining issues for later determination. Thereafter, the parties filed a number of motions relating to modification of interim custody and discovery. The trial court held eighteen separate hearings concerning child custody over a period of fifteen months.
On January 8, 1986, the father again employed a new attorney and a lengthy trial on the merits began. The trial court filed its findings and conclusions November 19, 1986, and a final judgment on child custody and support was entered on Febru-
I. JURISDICTION
The father challenges the jurisdiction of the Socorro County District Court to adjudicate the matters raised in the mother‘s petition for dissolution of marriage. He contends that prior jurisdiction was acquired by the Valencia County District Court because service of process was perfected there first. It is the father‘s position that service of process, rather than date of filing, controls as to priority of jurisdiction between courts of concurrent jurisdiction, and therefore his motion to abate the Socorro County action should have been granted. He asserts that this issue is reviewable on appeal pursuant to
A. Preserving questions for review. To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked * * * *
B. Exceptions. This rule shall not preclude the appellate court from considering jurisdictional questions * * * *
The father asks this court to vacate the final judgment appealed from, and to remand the case to the Socorro County District Court with instructions to abate the action and permit the Valencia County action to proceed. See Burroughs v. United States Fidelity & Guaranty Co., 74 N.M. 618, 397 P.2d 10 (1964).
Although the father correctly states the general rules regarding appellate review of issues involving challenges to subject-matter jurisdiction and venue, these rules are not controlling in the present case. The father has waived venue and consented to jurisdiction through his filing of various motions and his participation in the hearings and trial on the merits. Sеe Csanyi v. Csanyi, 82 N.M. 411, 483 P.2d 292 (1971). Moreover, he also acquiesced in the entry of a partial decree of divorce by the Socorro County District Court. Thus, he effectively submitted himself to the jurisdiction of that court. See Murphy v. Murphy, 96 N.M. 401, 631 P.2d 307 (1981); In re Johnson, 94 N.M. 491, 612 P.2d 1302 (1980).
The father‘s contention that he had no alternative but to accede to jurisdiction in Socorro County, due to Judge Kase‘s injunction prohibiting prosecution of the Valencia County action, is also without merit. The record indicates that Judge Kase аccorded him two separate opportunities to seek an interlocutory appeal or seek an appropriate writ regarding his determination that Socorro County District Court had exclusive jurisdiction and proper venue. The father did not seek appellate review on either occasion. Accordingly, the father‘s requested relief on this issue is denied.
II. AWARD OF JOINT CUSTODY
The father asserts that the trial court abused its discretion in awarding the рarties joint legal and physical custody of their minor child and providing for alternating custody every two weeks. We address a preliminary question raised by the parties concerning which joint custody statute is applicable to the case before us. The father contends that
The mother, on the other hand, argues that the amended version of the statute and its presumption of joint custody applies to all cases pending on May 21, 1986, the effeсtive date of the statute, and thus applies to the instant case, citing Olsen v. Olsen, 98 N.M. 644, 651 P.2d 1288 (1982). She also asserts that the father did not meet his burden of showing that joint custody was not in the best interests of the minor child. We determine that the district court correctly applied the pre-1986 statute. Under the former statute there was no presumption that joint custody was in the child‘s best interest.
The father contends that the district court abused its discretion in awarding joint legal and physical child custody to both parties. In New Mexico, the trial court has wide discretion in awarding custody of a child in a divorce case, and the welfare of the child is the primary factor in determining whether joint custody should be awarded. Creusere v. Creusere, 98 N.M. 788, 653 P.2d 164 (1982); Jaramillo v. Jaramillo, 103 N.M. 145, 703 P.2d 922 (Ct.App.1985), appeal after remand, Seeley v. Jaramillo, 104 N.M. 783, 727 P.2d 91 (Ct.App.1986); see also
The court heard the testimony of three clinical psychologists: Dr. Harold Paine, Dr. Dennis Pilgrim and Dr. Margie Trujillo. Both Drs. Paine and Pilgrim recommended that primary custody and responsibility for the upbringing of the minor child be placed with the father. In general, they found thаt the mother‘s less stable and more dependent life style would not be conducive to sole custody, and that the father appeared more capable of providing a stable and less interrupted environment. Dr. Paine stated that “continuing custody shared on a 50/50 basis” was not in the best interests of the child. While Dr. Trujillo testified that she would have no concern with placing the minor child with the mother, she also indicated that she had neither interviewed nor met the father. Additionally, the mother admitted at trial that she had used marijuana in the past and that she continued to use it on occasion.
The trial court‘s finding no. 9, found that “[t]o be effective joint legal custody requires that the parents be willing and able to communicate and cooperate with each other and reach agreement on issues regarding the child‘s needs * * * *” This finding succinctly encapsulates an important aspect of joint custody.
In cоnsidering whether joint custody would promote the best interests of a child, the trial court must determine (1) whether the child has established such relationships with both parents that he or she would benefit from joint custody, (2) that both parents are fit, (3) that both parents desire continuing involvement with the child, and (4) that both parents are able to
The ability to cooperate concerning joint child custody does not require the parents to have a totally amicable relationship, however: “‘a successful joint custody arrangement requires * * * that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.‘” Strosnider, 101 N.M. at 645, 686 P.2d at 987 (quoting Beck v. Beck, 86 N.J. 480, 498, 432 A.2d 63, 71-72 (1981)). As stated in 2 J. McCahey, M. Kaufman, C. Kraut, D. Gaffner, M. Silverman & J. Zett, Child Custody & Visitation Law & Practice Section 13.06[1] (1987):
A more difficult factor to assess is the post-divorce ability of the parents to cooperate in decisions concerning major aspects of child-rearing. Such cooperation requires setting aside interspousal differences and considering first the interests of their child * * * * However, if parents have never been able to cooperate on the basic dеcisions of raising a child, the child is likely to become the victim of parental tug-of-war. In these situations, joint custody is “an invitation to continued warfare and conflict.” [Footnotes omitted.]
Our concern here is with the fourth factor enumerated in Strosnider. An award of joint legal custody contemplates an equal exercise of authority by parents who share the responsibility of making important decisions regarding their child. Strosnider.
The district court‘s finding of fact no. 10, challenged by the father on appeal, states that the рarties “have shown the ability to communicate and cooperate with each other in promoting the child‘s best interests and needs on those occasions when they have set aside their present differences and have not been unduly influenced by their respective families and friends.” The expert witnesses, however, agreed that the mother remains quite hostile and angry toward the father and his family, and that she has a tendency to feel prоvoked and to become defensive in her interactions with the father. Similarly, the experts agreed that the parties lack the ability to communicate with each other on a rational level, primarily due to the mother‘s feelings of anger and hostility toward the father. Both Drs. Paine and Pilgrim opposed joint custody due to the parties’ inability to communicate on the level necessary for such an arrangement to work and benefit the child. Dr. Trujillo agreed that the mother‘s attempts to communicate with the father have not been successful.
The mother, on the other hand, contends that because the interim order provided for joint custody, this indicates that the parties are able to communicate sufficiently. This argument, however, is not supported by the record. As previously noted, the exchanges of child custody were so acrimonious that the trial judge was forced to enter an ordеr prohibiting the parties from having any family or friends within five blocks area when the exchange of physical custody of their daughter occurred, and the relationship between the parties was such that the court was required to hold eighteen separate hearings in connection with child custody issues during the pendency of the action.
A review of the record reveals that there is no substantial evidence on which to base a finding that both parеnts are able to communicate and cooperate in promoting the child‘s best interests or to work together sufficiently and in such manner so as to justify an award of joint legal and physical child custody. This erroneous finding, in turn, forms part of the basis of the district court‘s judgment awarding joint custody. Because there is no substantial evidence to support this key requirement, we determine that under the pre-1986 joint custody statute applicable in this case, therе is no presumption that joint custody is in the best interests of the child, and there is no
III. ISSUE OF CONTEMPT
The father contends that the trial court lacked jurisdiction to find him in criminal contempt based upon his failure to relinquish physical custody of the child in April, 1986, in accordance with the court‘s interim custody order. Although the court orally stated that it found the father to be in contempt, the record does not indicate that a formal order was entered, nor does it indicate that any sentence was in fact imposed. Accordingly, this issue is not ripe for appeal. See State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961); City of Raton v. Martinez, 103 N.M. 92, 703 P.2d 189 (Ct.App.1985).
IV. CONCLUSION
The cause is remanded to the trial court with instructions to set aside the award of joint legal and physical custody and for further proceedings consistent with this opinion and best interests and welfare of the child. The рarties shall each bear their own costs and attorney fees on appeal. We deem oral argument unnecessary. Garcia v. Genuine Parts Co., 90 N.M. 124, 560 P.2d 545 (Ct.App.1977).
IT IS SO ORDERED.
ALARID, J., concurs.
BIVINS, J., concurs in part & dissents in part.
BIVINS, Judge (concurring in part, dissenting in part).
I agree with the majority affirming on issues 1 and 3, but I am unable to agree on issue 2, the award of joint custody. The trial court, in my view, should also be affirmed on that issue.
“A trial court has wide discretion in awarding custody of a child in a divorce case, and the welfare of the child is of primary importance in making the award.” Creusere v. Creusere, 98 N.M. 788, 789-790, 653 P.2d 164, 165-166 (1982). We review an award of custody for abuse of discretion. Id.
In finding an abuse of discretion, the majority focus on the trial court‘s findings of fact Nos. 9 and 10. Those findings state:
9. To be effective joint legal custody requires that the parents be willing and able to communicate and cooperate with each other and reach agreement on issues regarding the child‘s needs, including the child‘s care and control, education, health, and religion.
10. Although the parties do not have an amicable relationship, they have shown the ability to communicate and cooperate with each other in promoting the child‘s best interests and needs on those occasions when they have set aside their present differences and have not been unduly influenced by their respective families and friends.
While admittedly less than overwhelming, there was evidence to support finding No. 10. There was evidence that prior to the April 3 hearing, the parties agreed to joint legal and physical custody when and if Dr. Trujillo filed her report; that the animosity at the exchanges was primarily attributable to the father‘s family‘s and friends’ “use of intimidating tactics“; and that on May 17 the trial court stated it had received Dr. Trujillo‘s report and, according to the parties’ stipulation, joint custody should commence. Moreover, the two other experts’ objections to joint custody seem to be based more on their personal philosophies regarding that cоncept than its application to this case. Finally, as the trial court found, the joint custody arrangement is not significantly different from the sole custody with liberal visitation recommended by father‘s expert, Dr. Pilgrim.
By awarding joint custody, it appears the trial court was trying to avoid giving one party or the other the sense that they have won the child. There are indications in the reports of father‘s expert witnesses that the parties were competing in a winnеr/loser format. The trial court may well have had concerns that an award of sole custody
It is certainly feasible to infer that the trial court, upon the opinion of all experts, felt that the most important factor in the best interests analysis was that the child maintain a close relationship with both parents, and that the only way to effectuate this would be to award joint custody.
Considering all of the trial court‘s findings, including those which track the factors under
The trial court recognized thаt both parties are immature and need improvement in parenting skills. It also acknowledged the mother‘s occasional use of marijuana and, while not condoning such use, found it had never occurred in the child‘s presence or affected the child‘s welfare.
The supreme court in Creusere v. Creusere said: “[t]he determination of the trial judge, who saw the parties, observed their demeanor and heard their testimony will not be overturned absent a manifest abuse of discretion.” Id. at 790, 653 P.2d at 166 (quoting Ridgway v. Ridgway, 94 N.M. 345, 347, 610 P.2d 749, 751 (1980) (emphasis added)). With eighteen separate hearings over fifteen months, I must agree with the trial court that it “has had an ample opportunity to observe the demeanor of the parties.” I would, therefore, affirm.