TUE THI TRAN, Petitioner-Petitioner, and CLINTON W. DEMMON, Intervenor-Petitioner, v. ROBERT G. BENNETT, Respondent-Respondent.
No. S-1-SC-34789
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
January 4, 2018
T. Glenn Ellington, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Santa Fe, NM
for Petitioners
Law Office of Jane B. Yohalem
Jane B. Yohalem
for Respondent
MAES, Justice.
{1} This case involves three people who agreed to co-parent one minor child (Child): Tue Thi Tran (Mother); Clinton Demmon (Demmon), who is Child‘s biological father and Mother‘s current partner; and Robert Bennett (Bennett), who was married to Mother at the time of Child‘s birth. In 2007, the parties entered into a memorandum of agreement that settled the issue of legal paternity in Demmon‘s favor yet provided that all three adults were Child‘s “co-parents.” The district court adopted the memorandum of agreement as a stipulated order of the court. Disputes arose between the parties, and in 2012 the district court issued a parenting order that expressly awarded joint legal custody of Child to Mother, Demmon, and Bennett. The district court also held Mother and Demmon in contempt of court for violating the vacation and visitation provisions in the memorandum of agreement.
{2} On appeal, Mother and Demmon challenge the 2012 parenting order, arguing that Bennett is not Child‘s father and that the district court erred by awarding custody to a non-parent. Mother and Demmon also contend that the district court abused its discretion by holding them in contempt of court.
{3} We conclude that the parties effectively settled the issue of paternity under the Uniform Parentage Act,
I. BACKGROUND
{4} Mother and Bennett got married in 1998 in Vietnam, Mother‘s home country, and later moved to Santa Fe. While married to Bennett, Mother began a relationship with Demmon and became pregnant. During the pregnancy, Mother informed Bennett that Demmon might be the baby‘s father. Despite doubt regarding whether Bennett was the biological father, Bennett‘s name was entered on Child‘s birth certificate when Child was born in May 2003. Mother and Child lived with Bennett until Child was nearly twenty-two months old. According to Mother, Demmon visited Mother and Child soon after Child‘s birth and continued to visit Mother and Child when Bennett was not at home. In early 2005, Mother and Child moved into Demmon‘s home, and the three have lived together as a family ever since.
{5} Mother filed for divorce in October 2006. Mother represented in her petition
{6} In November 2006, Demmon filed a motion in Mother and Bennett‘s divorce case, seeking to establish paternity. Demmon attached the results of a DNA (deoxyribonucleic acid) test which found a 99.8% probability that Demmon is Child‘s biological father. Demmon asserted that Bennett was aware of the test results yet refused to undergo genetic testing or to have the birth certificate changed to reflect Demmon‘s paternity. In December 2006, the district court granted Demmon‘s unopposed motion to intervene in the case. The district court scheduled a hearing on Demmon‘s paternity claim and gave Bennett two months to obtain a genetic test for himself, should he wish to do so.
{7} It appears from the record before this Court that the district court never held the paternity hearing because the parties, who were represented by counsel, settled
has three co-parents-[Mother, Demmon, and Bennett]. [Demmon and Mother] affirm that [Bennett] as a co-parent is part of [Child‘s] life and deserves time and involvement with [Child]. All three will demonstrate through cooperative and supportive actions their shared primary concern for [Child‘s] well-being. Each will encourage and support [Child‘s] relationships with the others.
{8} The agreement further provided that Mother and Demmon would include Bennett in decisions related to Child‘s health and education, with one vote to Bennett and two votes to Mother and Demmon, but that Bennett would not be expected to contribute financially to Child‘s education or dental expenses. The agreement granted Bennett visitation with Child three days a week, plus additional time during extended school breaks. The agreement required the parties to meet each year to create a summer vacation schedule for Child. Finally, the agreement contemplated annual review and recognized that it “may be superseded by a more detailed Parenting Plan.”
{9} The district court issued a stipulated order in October 2007 that adopted the
{10} In August 2011, Mother and Demmon filed a motion for an order to show cause alleging that for three years in a row, Bennett had taken Child on a summer vacation without Mother and Demmon‘s consent. They complained that Bennett had refused during the most recent trip to provide an itinerary or contact information and had not permitted Child to call Demmon. Mother and Demmon argued that Bennett‘s conduct violated the visitation and vacation provisions in the agreement and asked the district court to terminate Bennett‘s visitation rights and to hold him in contempt of court. The district court held a hearing in October 2011 and found that all three parties were responsible for generating conflict around Child‘s summer vacation schedule. The court declined to hold Bennett in contempt of court.
{11} About three months later, Bennett filed a motion for an order to show cause, alleging that Mother and Demmon had violated the agreement by taking Child on a
{12} The district court issued an amended parenting order in December 2012. The order did not use the term “co-parents” but did award “joint legal custody” of Child to Mother, Demmon, and Bennett as “joint legal custodians.” The order required the parties to “share major decisions of education, medical care, religion, discipline and
{13} Mother and Demmon appealed the 2012 parenting order and the order holding them in contempt of court. The Court of Appeals affirmed in an unpublished memorandum opinion. Tran v. Bennett, No. 32,677, mem. op. ¶ 2 (N.M. Ct. App. May 28, 2014) (non-precedential), cert. granted, 2014-NMCERT-008. Mother and Demmon filed a petition for writ of certiorari, asking this Court to address whether the district court erred by (1) awarding joint legal custody to two biological parents and to a third person who lacks parental standing, and (2) holding Mother and Demmon in contempt of court. We granted certiorari under Article VI, Section 2 of the New Mexico Constitution and
II. DISCUSSION
A. Mother and Demmon Are Child‘s Parents, and the Memorandum of Agreement Does Not Confer Parental Rights on Bennett
1. A New Parenting Order Entered in 2016 Did Not Render This Issue Moot
{14} After this Court granted certiorari and heard oral argument on this case, the parties’ appellate counsel filed a joint notice in this Court, explaining that the district court had entered a new parenting order in August 2016 and that the time to appeal
[Mother] and [Demmon] shall make all decisions concerning [Child‘s] education, childcare, health care (physical or mental), ongoing activities and religious upbringing. [Mother] and [Demmon] shall keep . . . Bennett apprised of any major changes in [Child‘s] education, childcare, health care (physical or mental), ongoing activities and religious upbringing. [Mother] and [Demmon] shall not change [Child‘s] residence, which is Santa Fe, New Mexico, without a court order.
The order granted Bennett weekly and holiday visitation with Child and permitted Bennett to take Child on a week-long vacation.
{15} In their joint notice to this Court, appellate counsel explained that the
parties dispute the meaning and effect of the [2016] order. [Bennett] interprets the order to mean that he is Child‘s co-parent. [Mother and Demmon] interpret the order to mean that [Bennett] is not Child‘s co-parent. The parties are in agreement that the case pending before this Court is not moot.
{22} We agree. Since no party has appealed the 2016 parenting order, which awards “sole legal custody” to Mother and Demmon, it appears that the narrow issue of whether
2. Standard of Review
{16} Mother and Demmon‘s claim that Bennett is not Child‘s parent requires us to interpret statutory provisions relating to parentage. We apply de novo review to questions of statutory construction. Chatterjee v. King, 2012-NMSC-019, ¶ 11, 280 P.3d 283. To the extent that this claim implicates issues of constitutional law or constitutional rights, our review is likewise de novo. See N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 27, 142 N.M. 248, 164 P.3d 947.
3. Demmon Is Child‘s Father Under the Uniform Parentage Act
{17} Bennett and Demmon each claim to be Child‘s father under the Uniform Parentage Act. As a preliminary matter, we must determine which version of the Act applies. New Mexico first enacted the Uniform Parentage Act in 1986. See Uniform Parentage Act (UPA),
{18} We thus turn to the original UPA,
{19} The UPA requires the district court to adjudicate paternity when there is a dispute between two presumptive natural fathers and sets forth a procedure for doing so. See
{20} Bennett asserts that he is Child‘s father under the UPA, arguing that Demmon waited too long to assert paternity and failed to obtain a court order establishing paternity. Mother and Demmon acknowledge that the district court did not expressly adjudicate paternity under the UPA but argue that this Court should nonetheless recognize that Demmon is Child‘s father under the UPA.
{21} We conclude that Demmon is Child‘s father under the UPA. Demmon sought genetic testing when Child was an infant and confirmed with near certainty that he is Child‘s biological father. Demmon then sought an adjudication of paternity and was granted intervenor status in this case. See
{22} Despite these agreements, Bennett argues that this is not an appropriate case in which to use biological evidence to rebut the presumption that he is Child‘s natural father because he has always acted as Child‘s father, even after learning that Demmon is Child‘s biological father. See
{23} Contrary to Bennett‘s claim that there is no court order determining paternity, we conclude that the 2007 stipulated order constituted an adjudication of the issue of paternity. The order adopted the memorandum of agreement, which recognized
4. The Memorandum of Agreement Does Not Confer Parental Rights on Bennett
{24} The 2007 memorandum of agreement settled the issue of legal paternity in Demmon‘s favor but also designated Mother, Demmon, and Bennett as “co-parents,” purporting to give Child three parents. Bennett argues that the memorandum of agreement created an enforceable three-way legal custody arrangement. Mother and Demmon assert that the agreement did not give Bennett custody and argue that the agreement could not confer parental standing or custodial rights on Bennett because
{25} Mother and Demmon are Child‘s legal parents under the UPA. See Chatterjee, 2012-NMSC-019, ¶ 5 n.3 (noting that the UPA uses the terms paternity and maternity to “refer to legal determinations of parenthood“); see also
{26} In a custody dispute between a parent and a non-parent, “New Mexico has long recognized the parental preference doctrine.” In re Guardianship of Ashleigh R., 2002-NMCA-103, ¶ 14, 132 N.M. 772, 55 P.3d 984. The parental preference doctrine limits the district court‘s discretion to award custody to a non-parent and requires the court to award custody to the parent unless the parent is unfit or extraordinary circumstances are present. Id. ¶¶ 14-16; see
{27} In this case, Mother and Demmon are Child‘s parents, so the district court could not award legal custody to Bennett over Mother and Demmon‘s objection absent a finding that Mother and Demmon were unfit or that extraordinary circumstances were present. The district court never made such a finding.
{28} Bennett asserts that his visitation rights should remain intact if this Court
{29} We hold that the memorandum of agreement does not confer parental rights on Bennett. Although the agreement designated Bennett as a “co-parent,” the significance of that designation is unclear because the word “co-parent” is not defined in the dissolution of marriage statutes or the UPA. Cf.
B. The District Court Erred by Holding Mother and Demmon in Contempt of Court
1. Standard of Review
{30} We review the district court‘s imposition of contempt sanctions for abuse of discretion. See Gedeon v. Gedeon, 1981-NMSC-065, ¶ 13, 96 N.M. 315, 630 P.2d 267. An abuse of discretion occurs when the court‘s “ruling is clearly against the logic and effect of the facts and circumstances of the case” or is “based on a misunderstanding of the law.” Chavez v. Lovelace Sandia Health Sys., Inc., 2008-NMCA-104, ¶ 25, 144 N.M. 578, 189 P.3d 711 (internal quotation marks and citation omitted).
2. The District Court Failed to Follow the Substantive and Procedural Law Governing Contempt of Court Proceedings
{31} In its contempt order, the district court found that Mother and Demmon knowingly and willfully violated the 2007 stipulated order by unilaterally taking Child on a vacation that interfered with Bennett‘s visitation rights. The district court ordered that Mother and Demmon “shall be incarcerated for a period of fifteen (15) days, with said period of incarceration suspended until further order of the Court.” The district court also ordered Mother and Demmon to pay Bennett‘s “reasonable attorney‘s fees for the preparation of the motion and order to show cause, oral argument and the order resulting from the hearing.”
{32} On appeal, Mother and Demmon challenge the order of contempt as an abuse of power. They argue that the district court acted arbitrarily by holding them in contempt because the court had refused to hold Bennett in contempt for similar conduct occurring the previous summer. Bennett contends that the district court acted
{33} The district courts possess inherent and statutory authority to impose punitive or remedial sanctions for contempt of court. See
{34} In this case, our review of the contempt order is complicated by the district court‘s failure to specify whether it was holding Mother and Demmon in civil contempt, criminal contempt, or both. For purposes of our analysis, we treat the contempt order primarily as one of civil contempt because the apparent purpose of the contempt proceedings was to preserve and enforce Bennett‘s visitation rights and to compel Mother and Demmon to comply with the 2007 order adopting the memorandum of agreement. Additionally, although we are not bound by the parties’ characterization of the contempt as civil or criminal, see Concha, 2011-NMSC-031, ¶ 32, we note that the parties rely on civil contempt law in their briefs and that the Court of Appeals treated the contempt as civil. See Tran, No. 32,677, mem. op. ¶ 41.
{35} “The elements necessary for a finding of civil contempt are: (1) knowledge of the court‘s order, and (2) an ability to comply.” In re Hooker, 1980-NMSC-109, ¶ 4, 94 N.M. 798, 617 P.2d 1313; see also State v. Rivera, 1998-NMSC-024, ¶ 13, 125 N.M. 532, 964 P.2d 93 (recognizing a conflict in prior case law regarding the elements of civil contempt and explaining that “[n]either willfulness nor intent is an element of civil contempt“). If the court finds civil contempt, there are two general categories of remedial sanctions that the court may impose: compensatory sanctions or coercive sanctions. See State ex rel. Apodaca v. Our Chapel of Memories of N.M., Inc., 1964-NMSC-068, ¶ 10, 74 N.M. 201, 392 P.2d 347.
{36} Compensatory sanctions may include damages or attorney‘s fees and are imposed for the purpose of compensating a party for pecuniary losses sustained due to the contempt. Id. (“[S]anctions may . . . be employed in civil contempt . . . to compensate the complainant for losses sustained.“); see also In re Hooker, 1980-NMSC-109, ¶ 5 (“The general rule is that a court has power to award damages and attorney‘s fees to a party aggrieved by a contempt.“). Our courts have limited the amount of a compensatory sanction “to the actual loss plus the costs and expenses, including counsel fees, incurred in investigating and prosecuting the contempt.” In re Hooker, 1980-NMSC-109, ¶ 5.
{37} Coercive sanctions may include “fines, imprisonment, or other sanctions” designed “to compel the contemnor to comply in the future with an order of the court.” Concha, 2011-NMSC-031, ¶ 25. Coercive sanctions are conditional, imposed to address the contemnor‘s continuing violation of a court order. See id. To effect this purpose, an order imposing a coercive sanction should state the actions that the contemnor must take to purge the contempt. See In re Hooker, 1980-NMSC-109, ¶ 4. A contemnor subject to a coercive sanction has the power to discharge the civil contempt at any time “by doing what [the contemnor] has previously refused to do.” Concha, 2011-NMSC-031, ¶ 25 (internal quotation marks and citation omitted).
{38} In this case, the fifteen-day term of imprisonment imposed by the district court was not an appropriate remedial sanction for civil contempt of court. Sending Mother and Demmon to jail could not compensate Bennett for any monetary damages sustained due to the contemptuous conduct. See Jencks v. Goforth, 1953-NMSC-090, ¶ 20, 57 N.M. 627, 261 P.2d 655 (“Imprisonment cannot undo or remedy what has been done, nor afford any compensation for the pecuniary injury caused by the disobedience.” (internal quotation marks and citation omitted)). And although a conditional sentence of imprisonment may be an appropriate civil contempt sanction in some situations, the sentence must be crafted in a way that permits the contemnor to discharge himself or herself of the contempt by complying with the court‘s order. See State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 60, 125 N.M. 343, 961 P.2d 768 (“A court may directly order an individual to comply with its order to purge himself or herself of contempt and may stay further sanctions if the individual complies with the order by a specified date.“); see, e.g., Papatheofanis v. Allen, 2009-NMCA-084, ¶ 5, 146 N.M. 840, 215 P.3d 778 (“The district court held [w]ife in
{39} Moreover, it is not clear how imposition of a jail sentence would be an effective means of coercing a child‘s parents into complying with an underlying order addressing the care and custody of the child. When exercising discretion to impose coercive sanctions, the judge must consider “the degree of harm threatened by continued contumacy and whether or not the contemplated sanctions will bring about a compliance with the court‘s order.” State v. Pothier, 1986-NMSC-039, ¶ 4, 104 N.M. 363, 721 P.2d 1294. In this case, imprisoning Mother and Demmon would have prevented them from caring for Child under the 2007 stipulated order.
{40} In addition, we take this opportunity to express concern that Mother may not have been afforded sufficient procedural due process at the hearing. “Civil contempt sanctions may be imposed by honoring the most basic due process protections—in most cases, fair notice and an opportunity to be heard.” Concha, 2011-NMSC-031, ¶ 25. Mother and Demmon received notice of the contempt allegations, and the
[a]ny subsequent hearings we need an interpreter for [Mother]. I think she probably does have relevant competent material testimony to give, but I think the language problem has become—or maybe always has been so severe that I‘m not sure she‘s able to meaningfully participate as a party or to testify as a witness in future hearings. So we‘ll need to make arrangements for an interpreter for her from now on.
{41} We are troubled that the district court imposed contempt sanctions on Mother after concluding that she was unable to meaningfully participate in the contempt hearing. We do not base our holding on this procedural due process issue, which was not raised by the parties. But we remind courts that the exercise of the contempt power must comport with the appropriate level of procedural due process, which
{42} Having concluded that the contempt order cannot be upheld as a valid exercise of the civil contempt power, we consider whether the order can be enforced as one of criminal contempt. Although the district court judge failed to articulate whether he was exercising the civil contempt power or the criminal contempt power, the language of the contempt order suggests that the sanction may have had a punitive, rather than remedial, purpose. If the purpose of the sanction was to punish Mother and Demmon for a previous violation of the 2007 stipulated order, the sanction is better characterized as one of criminal contempt, and Mother and Demmon were entitled to the full panoply of due process protections afforded to criminal defendants. See id. ¶¶ 26, 34. Of particular significance, a criminal contempt defendant “is presumed innocent until found guilty beyond a reasonable doubt” and “cannot be compelled to testify against himself [or herself].” Int‘l Minerals & Chem. Corp. v. Local 177, United Stone & Allied Prods. Workers, 1964-NMSC-098, ¶ 16, 74 N.M. 195, 392 P.2d 343. In this case, Bennett‘s counsel compelled Mother and Demmon to take the stand at the contempt hearing without any advice of rights. There is no indication that the district court followed the procedures of the criminal law or
{43} We have cautioned judges to use “extraordinary self-restraint to avoid abuses” of the contempt power. Concha, 2011-NMSC-031, ¶ 30. In this case, the contempt order reflects a misunderstanding of the substantive and procedural law governing contempt of court proceedings. We hold that the contempt order was neither a valid civil contempt order nor a valid criminal contempt order, and we vacate the contempt order as an abuse of discretion.
III. CONCLUSION
{44} We hold that Demmon is Child‘s legal father under the UPA and that the memorandum of agreement does not confer parental rights on Bennett. We further hold that the district court abused its discretion when it held Mother and Demmon in contempt of court, and we vacate the contempt order.
{45} IT IS SO ORDERED.
PETRA JIMENEZ MAES, Justice
JUDITH K. NAKAMURA, Chief Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice