Campbell v. Alpers

791 P.2d 472, 110 N.M. 21
CourtNew Mexico Court of Appeals
DecidedMarch 20, 1990
DocketNo. 11696
StatusPublished
Cited by6 cases

This text of 791 P.2d 472 (Campbell v. Alpers) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Alpers, 791 P.2d 472, 110 N.M. 21 (N.M. Ct. App. 1990).

Opinion

OPINION

DONNELLY, Judge.

Respondent (mother) appeals from an order of the trial court changing custody of the parties’ children to petitioner (father). We review the mother’s claims that (1) the trial court lacked jurisdiction herein under the New Mexico Child Custody Jurisdiction Act (NMCCJA), NMSA 1978, Sections 40-10-1 through -24 (Repl.Pamp.1989); and (2) the trial court erred in ordering a change of custody. We hold that the trial court had jurisdiction over this matter, but reverse the trial court’s order changing custody of the children.

This case has a difficult history. The parties were divorced in 1985. The final decree provided that the parties would have joint legal custody of their two minor sons, with the mother having primary physical custody, and the father having specific rights of visitation. The two boys are presently eight and ten years of age.

Entry of the final decree turned out to be the beginning rather than the end of litigation between the parties. In early 1986, the child visitation provisions of the decree were modified to accommodate the mother’s impending remarriage and her move to Maryland with the children. The trial court also held the father in contempt based upon his failure to make timely child support payments and denied his motion for reduction of support payments. In 1987, the mother twice filed motions with the New Mexico court for issuance of orders to show cause because of the father’s failure to make timely child support payments. One of these hearings also involved problems with child visitation. These motions were resolved in favor of the mother.

In 1988, additional problems occurred concerning visitation with the children. In May 1988, the mother filed a motion asking the trial court to modify the visitation provisions. The motion also stated that she had filed proceedings in Maryland seeking to stay the father’s impending summer visitation and requesting modification of the visitation provisions of the New Mexico decree. The mother’s motion alleged neglect and misconduct by the father during the children’s previous visit. The mother also raised issues concerning the father’s problems with alcohol, his failure to make timely child support payments, and his failure to provide health insurance for the children.

The New Mexico court conducted a lengthy hearing on the issues and ordered that a number of restrictions be placed upon the father’s conduct during his visitation with the children. The father was directed to enroll in a supervised alcohol Antabuse program, and the court ordered that after the father entered an Antabuse program, visitation with the children should then proceed. The father enrolled in a supervised Antabuse program, and the children came to New Mexico for summer visitation during 1988.

The mother failed to send the children to New Mexico for their scheduled 1988 Christmas visit with the father. Thereafter, in February 1989, the father filed a motion asking the trial court to hold the mother in contempt for obstructing his rights of visitation and to award custody of the children to him. The mother responded that she had not sent the children to visit him at Christmas because, contrary to the court’s order, he had not complied with the court’s directive that he participate in an Antabuse program, and he had been drinking while the children visited him during the previous summer.

The court held a hearing on the father’s motion in March 1989. During that hearing, the court modified its prior order concerning the father’s participation in a supervised Antabuse program and required the father to enter a supervised Antabuse program at least one week before the children were to arrive for their summer visit, and directed father’s attorney to certify such facts to the mother. The father also was ordered to remain continuously in an Antabuse program during each visitation; however, he was not required to continue in the Antabuse program after the visitation period ended. Additionally, the trial court directed the mother’s attorney to notify the court in advance if the children were not going to be sent to New Mexico for visitation.

The father’s motion for change of custody was scheduled for hearing on June 26, 1989. Shortly before the hearing, the mother filed a motion challenging the court’s jurisdiction. By stipulation of counsel, that motion was heard on the day originally scheduled for the hearing on the merits. The trial court denied the motion, finding that it had jurisdiction, and scheduled a hearing on the change of custody motion for July 5,1989. At the close of the July 5 hearing, the trial court ordered that custody of the children be changed to the father. The mother filed an appeal from this order and requested a stay during the pendency of the appeal. The trial court denied the motion for a stay. On appeal to this court, we directed that a stay of proceedings be entered, continuing custody of the children with the mother pending resolution of this appeal on the merits. See Alpers v. Alpers (Ct.App.1990).

I. JURISDICTIONAL ISSUES

The mother contends that the trial court lacked subject matter jurisdiction to modify child custody because the NMCCJA limits this state’s jurisdiction over interstate child custody proceedings. In addressing this contention, we note that the term “custody determination” as used in the NMCCJA includes proceedings involving disputes relating to child visitation rights. See § 40-10-3(B); Olsen v. Olsen, 98 N.M. 644, 651 P.2d 1288 (1982). The term “proceeding” as used in the NMCCJA has been interpreted to refer to the most recent proceeding concerning child custody, not the initial proceeding. See Trask v. Trask, 104 N.M. 780, 727 P.2d 88 (Ct.App.1986). On appeal, the mother does not argue that the trial court should have declined jurisdiction because it was an inconvenient forum. See § 40-10-8.

We note that Section 40-10-4, the pertinent jursidictional provision, was amended in 1989 to grant continuing jurisdiction to New Mexico when it has made prior custody determinations as long as the child or one of the contestants remained in New Mexico. See § 40-10-4(B). The mother argues this amendment does not apply because the father filed the motion to change custody in February 1989, and the amendment’s effective date was not until June 16, 1989. We disagree. Olsen requires us to retroactively apply the provisions of the NMCCJA. We hold that the trial court properly exercised jurisdiction pursuant to Section 40-10-4(B). Furthermore, we hold that the trial court also had jurisdiction under Section 40-10-4(A) as it existed prior to the 1989 amendments.

Prior to 1989 the NMCCJA set out four different grounds for a court’s exercise of jurisdiction over child custody proceedings. See § 40-10-4(A) (Repl.Pamp.1986). The trial court is invested with jurisdiction if it meets the requirements of any one of the statutory grounds. See Olsen v. Olsen; Serna v. Salazar, 98 N.M. 648, 651 P.2d 1292 (1982). The mother contends, and the father does not dispute, that Maryland, not New Mexico, is the “home state” of the children under the NMCCJA. See §§ 40-10-3(E) and -4(A)(1); Trask v. Trask. However, home state jurisdiction is only one of the four jurisdictional bases. See § 40-10-4(A).

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Bluebook (online)
791 P.2d 472, 110 N.M. 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-alpers-nmctapp-1990.