OPINION
This is an appeal from an order modifying child custody.
In аn earlier divorce proceeding between these parties, the district court granted the appellant mother custody of their minor child, Wayne Rea Terry, for the months of September through May of each year, and the appellee father custody during the summer months of June, July and August, each рarty having the right of reasonable visitation. By subsequent order entered January 4, 1961, the district court modified the custody decree to provide that neither party should remove Wayne Rea Terry from the State of New Mexico without the written consent of the other party or by order of the court. In the ordеr the court specifically stated that it was retaining jurisdiction of the cause with respect to future custody.
On July 25, 1969, the district court issued an order to the aрpellant to show cause why permanent custody of the child, then ten years old, should not be given to the father, with visitation rights in the mother. The father’s motion fоr the order to show cause alleged that she removed the child to Colorado without his consent or the approval of the court. The aрpellant answered praying for a modification of the original decree of custody to shorten the custody rights of the father and to modify or vaсate the restriction on removing the child from New Mexico. Both parties, as well as the child, appeared before the district court at the hearing.
Some time in 1969, the District Court of Boulder County, Colorado, entered an order changing the custody rights, in a suit brought by the mother against the father, in which both parties appeared.
Our court found, in part, that (1) the child was within the State of New Mexico and subject to the court’s continuing jurisdiction ; (2) although the appеllee’s motion failed to specifically allege a change of circumstances, such change of circumstances was implicit in the aрpellee’s motion and, in any event, the matter was fully litigated and the court would consider the pleadings amended to conform to the evidence; (3) changes have occurred since the original decree was entered, namely, that the appellee was now married and has a homе for the child who would then have a suitable mother and father in that home, and (4) the child, who expressed his desires that he remain with the father, now needed а father. The court specifically found the minor child of sufficient maturity and intelligence for the court to give some weight to the child’s wishes. Based upon the findings, the court entered its order changing the custody in favor of the father. Generally speaking, the order gave the father custody during the winter months and the mоther during the summer months.
The appellant’s first point is that the district court erred in failing to give full faith and credit to the 1969 Colorado decree. First of all, we cannot speculate as to what the Colorado decree stated, for it was not introduced into evidence nor even tendered. We do not knоw what facts or circumstances were presented to the Colorado court on which it rested an adjudication. Secondly, the proceedings here in our district court which culminated in the order of February 18, 1970, were for a modification of custody. Both parties, including the minor child, appeared. The court found and concluded that changes in conditions and circumstances had occurred since its first decree sufficient to modify the original dеcree of the court by increasing the custody rights of the father. As always, the primary concern is what is best for the child’s welfare. Kotrola v. Kotrola,
The appellant’s second point is that the district court was without jurisdiction to modify its previous custody decree since the appellee’s motion to modify failed to specifically allege that a change of circumstances had occurred. Regardless of this, the question that wаs litigated, and in which the appellant fully participated, was whether the custody provisions should be changed. Paragraph VII of the appellee’s motion requested a change of custody; the appellant claimed no surprise and made no objection to the custody issue being heard. In Berkstresser v. Voight,
During the hearing the court heard testimony from the minor child, then over ten years of age. The appellant urges that the court erred in finding that the boy had sufficient maturity and intelligence to state a decision as to his choice of whom -he wished to live with. The court found that because of his maturity and intelligеnce it could give some weight to his wishes. To do so was well within the court’s discretion and we will not interfere, where nothing is presented to show an abuse. Stone v. Stone,
The appellant also complains of the court’s refusal to grant her motion to dismiss for failure to show a material change of cirсumstances. She also urges that there was no substantial evidence to support certain findings as to changes of circumstances and the suitability of the present wife of the appellee to help raise the boy. We have examined the record and substantial evidence was presentеd of changed circumstances of material import and, accordingly, the court had sufficient basis for modification of custody and acted prоperly in denying the motion to dismiss. See Martinez v. Trujillo,
There is one final matter to be noted. On June 12, 1970, while this appeal was pending, we issued a writ of certiorari for diminution of the record and we are in receipt of a supplemental transcript of record. The supplemental transcript reveаls that since the hearing before the district court the wife of the appellee has divorced him. We will not consider that new matter here. Suffice it to say, it is for the appellant if she so desires to present this new circumstance to the district court for consideration.
The order of the trial court is affirmed.
It is so ordered.