Jeantete v. Jeantete

806 P.2d 66, 111 N.M. 417
CourtNew Mexico Court of Appeals
DecidedDecember 31, 1990
Docket12262
StatusPublished
Cited by36 cases

This text of 806 P.2d 66 (Jeantete v. Jeantete) 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
Jeantete v. Jeantete, 806 P.2d 66, 111 N.M. 417 (N.M. Ct. App. 1990).

Opinion

OPINION

DONNELLY, Judge.

This is an appeal from an order denying the father’s motion to modify visitation and living arrangements involving his younger daughter under an award of joint custody. Three issues are presented on appeal: (1) whether the trial court erred in denying modification of joint custody; (2) whether the court was required to conduct an in camera hearing to determine the child’s wishes; and (3) whether public policy considerations required approval of the father’s request for expanded visitation. For the reasons that follow, we affirm the ruling of the trial court.

The marriage of the parties was dissolved in 1984; a stipulation and agreement of the parties, incorporated into the final decree of divorce, provided that the father and mother were awarded joint custody of their three children. Under the agreement, the mother was given actual physical custody of the son and younger daughter, and the father received physical custody of the elder daughter. Both parents were granted visitation rights with the children every other weekend, on alternating major holidays, and on each of the children’s birthdays.

In 1988, the father filed a motion to modify the custodial provisions of the decree with respect to the younger daughter and requested that she be permitted to reside with him “at least every other week.” The father also alleged that the parties had deviated from the provisions of the original custody agreement, that the requested modification was in the best interests of the child, and that an order granting modification would formalize the visitation arrangements which had been followed by the parents.

The hearing on the father’s motion was consolidated with other motions filed by the parties, involving support and property issues. At the hearing before the court, the parties disputed the extent to which they had departed from the terms of the original custody agreement concerning the living arrangements and visitation rights involving their younger daughter. The father testified that the daughter was currently spending approximately “thirty percent” of her time with him; the mother conceded that she permitted the daughter to stay with her father when she was out of town but challenged the father’s statements concerning the number of times when this had occurred, and their duration, and testified that there had been only occasional deviations from the visitation provisions of the original decree.

Denial of Modification

The father argues that the trial court erred in concluding that the evidence was insufficient to establish the existence of materially changed circumstances involving visitation arrangements for the younger daughter. He contends that the evidence established that both parents had consistently deviated from the 1984 decree and that an order of modification recognizing the practices of the parties was in furtherance of the child’s best interests. He also asserts the trial court erred in failing to find that the mother’s past acquiescence to the expanded child visitation estopped her from contesting modification of custody, and that evidence of the pattern of actual child visitation overcame any presumption that the prior custody decree continued to be reasonable under the current circumstances.

Courts may modify a prior custody order whenever circumstances render such change proper and in furtherance of the child’s best interests. NMSA 1978, § 40-4-7(C) (Repl.Pamp.1989). Modification of child custody is “proper” upon a showing of materially changed circumstances affecting the best interests of the child. See Schuermann v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980); Fox v. Doak, 78 N.M. 743, 438 P.2d 153 (1968); Strosnider v. Strosnider, 101 N.M. 639, 686 P.2d 981 (Ct.App.1984); see also Alfieri v. Alfieri, 105 N.M. 373, 733 P.2d 4 (Ct.App.1987). This standard is also applicable to requests for modification of child visitation rights. See Kerley v. Kerley, 69 N.M. 291, 366 P.2d 141 (1961).

Whether the trial court erred in denying or modifying a child custody or visitation decree is reviewed on an abuse of discretion standard. However, to be a proper exercise of the trial judge’s broad discretion in this area, the record must contain substantial evidence supporting the required finding that the modification furthers the best interests of the child. Gholson v. Gholson, 82 N.M. 473, 483 P.2d 1313 (1971); Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932 (1971); Sanchez v. Sanchez, 107 N.M. 159, 754 P.2d 536 (Ct.App.1988). In resolving competing parental custodial claims or questions involving child visitation, the best interests of the child must guide the hand of the court. Lopez v. Lopez, 97 N.M. 332, 639 P.2d 1186 (1981); Kerley v. Kerley; Sanchez v. Sanchez.

Where the evidence is conflicting, on appeal the reviewing court will consider only that evidence favorable to the findings of the trial court; the appellate court will not reweigh the findings of the trial court involving disputed testimony or inferences to be drawn therefrom, nor the trial court’s determination as to the credibility of the witnesses. Stone v. Turner, 106 N.M. 82, 738 P.2d 1327 (Ct.App.1987).

Both parties on appeal call our attention to the fact that two of the eleven tapes of the proceedings before the trial court were either lost or destroyed and were not available for review by this court. For purposes of review, absent proper evidence to the contrary, an appellate court will presume that the missing portions support the trial court’s ruling. Luxton v. Luxton, 98 N.M. 276, 648 P.2d 315 (1982); Eldridge v. Aztec Well Servicing Co., 105 N.M. 660, 735 P.2d 1166 (Ct.App.1987). An appellant has the duty of providing an adequate record sufficient to review the issues raised on appeal. Dillard v. Dillard, 104 N.M. 763, 727 P.2d 71 (Ct.App.1986).

The father has not shown that the missing portions of the record were not capable of being reconstructed. Where a portion of the record has been omitted or is missing, the parties by stipulation, or the district or appellate courts, may direct that the omission be corrected. SCRA 1986, 12-209(C). Upon application of a party, the trial court may, by order, reconstruct missing portions of the record, based upon stipulated matters agreed to by the parties, from the trial judge’s notes, from the trial judge’s recollection of the testimony, or a combination of the above. See State v. Fish, 101 N.M. 329, 681 P.2d 1106 (1984).

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Bluebook (online)
806 P.2d 66, 111 N.M. 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeantete-v-jeantete-nmctapp-1990.