Davis v. Davis

• Court: New Mexico Court of Appeals
• Decided: December 2, 2009
• Docket: 29,738
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 TAMARA LYNN DAVIS,

8 Petitioner-Appellee,

9 v. NO. 29,738

10 MARK C. DAVIS,

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 13 Drew D. Tatum , District Judge

14 Harris Law Firm, P.C. 15 Randall Harris 16 Clovis, NM

17 for Appellee

18 Attorney and Counselor at Law, P.A. 19 Eric D. Dixon 20 Portales, NM

21 for Appellant

22 MEMORANDUM OPINION

23 WECHSLER, Judge. 1 Appellant attempts to appeal from the district court’s order setting aside a

2 default judgment that was in his favor. The first notice of proposed disposition

3 proposed to dismiss the appeal. Appellant filed a memorandum in opposition to the

4 proposed disposition. We are not persuaded by Appellant’s arguments and dismiss

5 the appeal.

6 Appellant argues that under the Uniform Child Custody Jurisdiction Act (the

7 Act), NMSA 1978, § 40-10A-201 (2001), while the district court has continuing

8 jurisdiction, each decision is final for the purposes of appeal. [MIO 2] “This [C]ourt

9 recognizes that a court of original jurisdiction ordinarily retains continuing

10 jurisdiction to modify a custody decree.” Trask v. Trask, 104 N.M. 780, 782, 727

11 P.2d 88, 90 (Ct. App. 1986). However, the main purpose of the Act is “to avoid

12 jurisdictional competition and conflict in making custody awards.” Elder v. Park, 104

13 N.M. 163, 166, 717 P.2d 1132, 1135 (1986). Here, the act of setting aside the default

14 judgment left in effect the August 19, 2008 order which awarded Appellant sole

15 temporary physical and legal custody. [RP 100, 272-73, 299-303] That order

16 expressly continued the matter for further proceedings. [RP 100] Therefore, there is

17 no final determination from which to appeal.

18 Appellant further argues that Hall v. Hall, 115 N.M. 384, 386-87, 851 P.2d 506,

2 1 508-09 (Ct. App. 1993) (holding that an order setting aside a default judgment was not

2 a final judgment or decision and was not appealable), the case relied upon in this

3 Court’s first notice, was a tort action and not a decision under the Act. Specifically,

4 Appellant asserts that if the logic of Hall is followed, a decision of the district court

5 under the Act would never be final and could not be appealed until the child reached

6 the age of eighteen, since the court always has the jurisdiction to modify its decision.

7 [MIO 2-3] By statute, a party can seek modification of the original divorce decree

8 under the standard of changed circumstances. See NMSA 1978, § 40-4-7(G) (1997)

9 (“The court may modify and change any order or agreement merged into an order in

10 respect to the guardianship, care, custody, maintenance or education of the children

11 whenever circumstances render such change proper.”). An order determining that

12 there is evidence of changed circumstances warranting a change of custody is final for

13 the purposes of appeal. See Mendoza v. Mendoza, 103 N.M. 327, 331, 706 P.2d 869,

14 873 (Ct. App. 1985) (stating that after the time for appealing a divorce decree expires,

15 the court in the original proceeding loses jurisdiction to modify the decree except

16 when relief is sought to modify child custody, child support, or alimony pursuant to

17 Section 40-4-7(C)). However, here, the order setting aside the default judgment left

18 unresolved the question of whether changed circumstances warranted a modification

3 1 of custody awarded in the original divorce decree. See Cole v. McNeill, 102 N.M.

2 146, 147, 692 P.2d 532, 533 (Ct. App. 1984) (“Issues remain to be decided by the

3 district court, thus there has been no final judgment or decision.”).

4 For these reasons, and those stated in the first notice, we dismiss the appeal.

5 IT IS SO ORDERED.

6 _______________________________ 7 JAMES J. WECHSLER, Judge

8 WE CONCUR:

9 _____________________________ 10 CYNTHIA A. FRY, Chief Judge

11 _____________________________ 12 JONATHAN B. SUTIN, Judge 13