MALISSA C. v. Matthew Wayne H.

2008 NMCA 128, 193 P.3d 569, 145 N.M. 22
CourtNew Mexico Court of Appeals
DecidedJuly 9, 2008
Docket26,943
StatusPublished
Cited by7 cases

This text of 2008 NMCA 128 (MALISSA C. v. Matthew Wayne H.) 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
MALISSA C. v. Matthew Wayne H., 2008 NMCA 128, 193 P.3d 569, 145 N.M. 22 (N.M. Ct. App. 2008).

Opinion

OPINION

FRY, Judge.

{1} Respondent Matthew Wayne H. (Father) appeals from the district court’s judgment (1) asserting exclusive jurisdiction to determine the custody of Child, who is the son of Father and Petitioner Malissa C. (Mother); (2) awarding sole legal and physical custody of Child to Mother; (3) enjoining Father from proceeding with a child custody proceeding in Texas; and (4) denying Father visitation with Child until Father dismisses the Texas proceeding with prejudice and voluntarily submits himself to the district court’s jurisdiction. Our review in this case requires us to apply the provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), NMSA 1978, §§ 40-10A-101 to -403 (2001). We affirm.

BACKGROUND

{2} Mother and Father, who have never been married, are the biological parents of Child, who was born in December 2005, in Las Cruces, New Mexico. According to Mother’s testimony, Child resided in New Mexico with Mother and her parents from his birth until March 31, 2006, when she and Child moved to Ft. Worth, Texas, to live with Father in an attempt to become a family unit. On April 6, Mother, who was in the Army Reserve, received a call from her superior officer telling her to report for training in El Paso. Mother told Father she planned to take Child with her when she left for training. When the time came for Mother to leave, she was under the impression that Father was going to take her to the airport, but instead, he drove off with Child and left Mother behind. Father took Child to Father’s parents’ home in Ft. Worth and refused to let Mother see Child. After unsuccessfully seeking assistance from the police and child protective services in Ft. Worth, Mother returned to New Mexico with her parents.

{3} On April 11, 2006, Father filed a petition to adjudicate parentage in Texas district court (Texas court), in which Father alleged that the purpose of the suit was “to establish the parent-child relationship between [Father] and [Child]” and that “[t]he best interest of [Child] will be served by the appointment of [Father] as joint managing conservator with the exclusive right to designate the primary residence of [Child].” The only statement in the petition regarding Child’s residence was “County of residence: Tarrant[.]” On the same date that Father filed his petition, the Texas court issued a temporary restraining order (TRO) in which it directed the court clerk to issue notice to Mother to appear for a hearing on April 19, 2006. Mother did not receive notice of the April 19 hearing, and she was not served with the TRO until May 8, 2006.

{4} On April 13, 2006, Mother filed a petition in the New Mexico district court initiating the instant proceedings. In her petition, Mother alleged that she was unaware of and had not participated in any other custody proceeding involving Child. Mother further alleged that Child had resided in New Mexico from his birth until April 1, 2006, when she and Child had moved to Ft. Worth, and that soon afterward Father had abducted Child. Mother averred that the district court “[had] exclusive home state child custody jurisdiction” under the UCCJEA, and she sought both immediate temporary custody and permanent sole legal custody of Child. The district court entered an order stating that “it clearly appears that [the district] court has child custody jurisdiction” and scheduling a hearing on temporary custody for May 8, 2006.

{5} On the date scheduled for the Texas court hearing, April 19, 2006, the Texas court extended the TRO “until such time as [Mother] has been served and a hearing has been had in this matter.” On May 8, Father’s counsel entered a special appearance in the New Mexico proceeding for the purpose of challenging the district court’s jurisdiction. Mother was finally served with the pleadings in the Texas proceeding just prior to the hearing in New Mexico on May 8.

{6} At the May 8 hearing in the district court, Mother presented evidence that Child resided exclusively in New Mexico from his birth until April 1, 2006. Although Mother admitted to having an apartment in El Paso, Texas, for purposes of storing some of her possessions and in order to have a place to stay after working one of two jobs, she testified that Child never lived with her in that apartment. Child was at the apartment only occasionally, such as when Mother took him there when she met friends to go to the mall. When Mother was at work, Child stayed with Mother’s parents at their home in New Mexico, which was where Mother spent most of her time. Mother testified that Child was on Medicaid in New Mexico, and there was evidence that Child’s doctor was in New Mexico. Mother’s mother, father, brother, and two friends all testified that Child never stayed overnight in the El Paso apartment and that he resided exclusively in New Mexico until March 31, 2006.

{7} Father also testified at the hearing and presented evidence supporting his belief that Child resided in El Paso prior to April 1, 2006. This evidence included his observation that Mother had many possessions at the El Paso apartment, including a baby’s crib and toys, and information Mother posted on the internet stating that she lived in El Paso. Father’s father testified that Mother wrote a letter to him and his wife in December 2005 that showed an El Paso return address.

{8} At the conclusion of the hearing, the district court stated that Section 40-10A-206 of the UCCJEA suggests that the Texas court would have prior jurisdiction over the custody proceeding only if the Texas court’s jurisdiction was substantially in conformity with the UCCJEA. However, it appeared to the district court that there was no evidence presented that would support jurisdiction in the Texas court. Father’s attorney responded that New Mexico was not Child’s home state because Child’s custodial parent, Mother, resided in Texas, and the residence of a child is the residence of his or her custodial parent.

{9} The district court disagreed and noted that the UCCJEA defines a home state as the home state of the child in question. The district court observed that all of the testimony based on personal knowledge was unrebutted that Child stayed in his grandparents’ home in Berino, New Mexico. The district court then stated its finding that Child’s home state was New Mexico and that Mother had significant connections to New Mexico. Regarding the proceedings pending in Texas, it appeared to the district court that the Texas pleadings did not identify Texas as Child’s home state but stated only that the county of residence was Tarrant. Consequently, the district court was of the view that the Texas court did not have jurisdiction. The district court stated that it would send copies of the pleadings filed in the New Mexico proceeding to the Texas court. The district court stated that it was ordering that Child be returned to Mother forthwith.

{10} The day after the hearing, May 9, 2006, the district court filed a written order assuming jurisdiction, in which it expressly found that New Mexico was the home state of Child as defined by the UCCJEA, that the district court therefore had exclusive home state child custody jurisdiction, and that the Texas court did not have jurisdiction substantially in conformity with the UCCJEA. The order awarded temporary physical custody of Child to Mother.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 NMCA 128, 193 P.3d 569, 145 N.M. 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malissa-c-v-matthew-wayne-h-nmctapp-2008.