Beakey v. Felty

• Court: New Mexico Court of Appeals
• Decided: July 2, 2012
• Docket: 32,049
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 JULIE BEAKEY, f/k/a, 3 JULIE FELTY,

4 Plaintiff-Appellee,

5 v. NO. 32,049

6 GLENN FELTY,

7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Elizabeth E. Whitefield, District Judge

10 Sutin, Thayer & Browne, P.C. 11 Kerry Kiernan 12 Albuquerque, NM

13 for Appellee

14 Law Office of Peter H. Johnstone, P.C. 15 Peter H. Johnston 16 Meredith A. Johnston 17 Albuquerque, NM

18 for Appellant 1 MEMORANDUM OPINION

2 KENNEDY, Judge.

3 Glenn Felty appeals an order altering the parties’ respective periods of

4 responsibility for their minor daughter, Margaux, by permitting Julie Beakey, his ex-

5 wife, to take Margaux when she moves to Oklahoma. In our notice of proposed

6 summary disposition, we proposed to affirm. Felty has filed a memorandum in

7 opposition and Beakey has filed a memorandum in support, both of which we have

8 duly considered. As we are not persuaded by Felty’s arguments, we affirm.

9 In our notice of proposed summary disposition, we proposed to hold that

10 Beakey’s remarriage to a man who lives in Oklahoma, and her plan to move there to

11 be with him, constituted a substantial and material change in circumstances. See

12 Jaramillo v. Jaramillo, 113 N.M. 57, 67 n.9, 823 P.2d 299, 309 n.9 (1991) (“[I]t is

13 difficult to imagine an instance in which a proposed relocation will not render an

14 existing parenting plan or custody-and-visitation arrangement unworkable. . . . ‘[A]

15 distant relocation by one parent will inevitably trigger a change of circumstances—the

16 inability of the parties to implement their parenting agreement.’” (citation omitted)).

17 We also proposed to hold that there was sufficient evidence to support the district

18 court’s determination that it would be in Margaux’s best interest to move with

2 1 Beakey, such that, although Beakey and Felty would retain joint custody, the bulk of

2 Margaux’s time would be spent with Beakey.

3 In Felty’s memorandum in opposition, he argues that there was insufficient

4 evidence of a substantial and material change in circumstances because the allegations

5 of the change were supported solely by Beakey’s testimony. [MIO 2] However, Felty

6 provides no explanation of why Beakey’s testimony about her remarriage and intent

7 to relocate would be inadequate to support the district court’s findings. As we

8 explained in our notice, this Court does not reweigh the evidence on appeal. See

9 Alfieri v. Alfieri, 105 N.M. 373, 377, 733 P.2d 4, 8 (Ct. App. 1987) (stating that when

10 reviewing the evidence supporting a child custody determination, we “will view the

11 facts and evidence in a light most favorable to the ruling of the trial court, indulge in

12 all reasonable inference in support of the court’s findings, and will disregard all

13 inferences or evidence to the contrary”). Beakey’s testimony was therefore sufficient

14 to support a finding of a substantial and material change in circumstances.

15 Felty also asserts that there was not substantial evidence to support a finding

16 that it would be in Margaux’s best interest to move with Beakey to Oklahoma. [MIO

17 3-10] Felty’s argument appears to be that Beakey is voluntarily choosing to leave the

18 state and, by leaving, she is placing Margaux in the position of being apart from Felty.

19 Because the district court did not believe that Margaux needed to be away from Felty

3 1 for any reason, then it would be better for her to be close to him. However, as Felty

2 acknowledges, Beakey is constitutionally entitled to move if she so chooses. See

3 Jaramillo, 113 N.M. at 63, 823 P.2d 299, 305. And, thus, the question before the

4 district court was not whether it would be better for Margaux to be with both parents,

5 but, rather, since Margaux’s parents will be far apart and Margaux must live primarily

6 with one or the other of them, with whom should she live? There was sufficient

7 evidence to support the district court’s determination that it would be in Margaux’s

8 best interest to live with Beakey.

9 Therefore, for the reasons stated in this Opinion and in our notice of proposed

10 summary disposition, we affirm.

11 IT IS SO ORDERED.

12 _______________________________ 13 RODERICK T. KENNEDY, Judge

14 WE CONCUR:

15 _________________________________ 16 MICHAEL D. BUSTAMANTE, Judge

17 _________________________________

4 1 LINDA M. VANZI, Judge