McLam v. McLam

1973 NMSC 050, 510 P.2d 914, 85 N.M. 196
CourtNew Mexico Supreme Court
DecidedMay 11, 1973
Docket9551
StatusPublished
Cited by16 cases

This text of 1973 NMSC 050 (McLam v. McLam) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLam v. McLam, 1973 NMSC 050, 510 P.2d 914, 85 N.M. 196 (N.M. 1973).

Opinion

OPINION

OMAN, Justice.

This is the third time this cause has been before this Court on appeal. Our decision on the first appeal is reported in McLam v. McLam, 81 N.M. 37, 462 P.2d 622 (1969). The second appeal appears as No. 9189 on the docket of this Court and was dismissed by order entered March 3, 1971.

The child custody issue referred to in McLam v. McLam, supra, has been resolved by an order awarding custody of the child to plaintiff. This order was entered without objection by defendant and is not involved in this appeal. The case is now before us on appeal from an order dismissing defendant’s claim of right to have the New Mexico courts decide all issues between the parties as to the nature and extent of their community property and to make an equitable division thereof between them. We affirm.

This claim by defendant was asserted in her responsive pleading to plaintiff’s application for custody of the child. The trial court dismissed the claim under the doctrine of forum non conveniens. Its order of dismissal was predicated upon the following findings and conclusions:

“ * * * that all property involved in said responsive pleading [the pleading in which defendant asserted her claim] is situated in the State of Idaho; plaintiff and plaintiff’s minor -child are residents and domiciliaries of the State of Idaho; all witnesses to this action are residents of the State of Idaho; a view of the real estate would be necessary but would not be available to this Court because of the location of said real estate in Idaho; the Court proceedings giving rise to this matter were in the State of Idaho; and that the law applicable to this action would be the law of Idaho; and that the State of New Mexico is not the forum for serving the ends of justice, convenience of witnesses and the Court and that the doctrine of forum non conveniens should be applied.”

In the statement of proceedings in her brief in chief, defendant has challenged the foregoing findings by a parenthetical note as required by Supreme Court Rule 15(16) (b) [§ 21-2-1(15) (16) (b), N.M.S. A.1953 (Repl. Vol. 4, 1970)]. However, she has failed to state in her argument the ground or grounds for challenging any of these findings. Her arguments are directed entirely toward supporting her claims that the trial court improperly applied the doctrine of forum non conveniens to the facts of this case because (1) plaintiff chose the forum initially for the purpose of gaining custody of the child; (2) plaintiff and the trial court were both estopped from considering the doctrine because it was not raised until the case had long been in litigation; and (3) defendant has the right to assert her property claims in the forum of her choice.

A mere challenge of a finding by parenthetical note in the statement of proceedings is not sufficient to raise an issue on appeal. The burden was on ap-pellaht to state in argument her precise ground or grounds for challenging the findings. Rule 15(16) (b), supra. It was also her burden to clearly point out the claimed error or errors in the findings upon which she relies. Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967); Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967); Novack v. Dow, 82 N.M. 30, 474 P.2d 712 (Ct.App.1970). She failed in both respects.

At the close of the evidence, defendant expressly asked leave of the court to file requested findings of fact and conclusions of law. Leave was granted, but she failed to file any requests or take any exceptions to the findings made by the trial court. Under these circumstances, she is not entitled to a review of the evidence, if this is what she was seeking by the challenge in her said parenthetical note. McNabb v. Warren, 83 N.M. 247, 490 P.2d 964 (1971); Hall v. Lea County Electric Cooperative, 78 N.M. 792, 438 P.2d 632 (1968); Kipp v. McBee, 78 N.M. 411, 432 P.2d 255 (1967); Texas Cotton Harvester Sales Co. v. Smith, 76 N.M. 495, 416 P.2d 159 (1966); Owensby v. Nesbitt, 61 N.M. 3, 293 P.2d 652 (1956).

There is no merit to defendant’s contention that the doctrine of forum non conveniens was not applicable because plaintiff chose New Mexico in which to seek the custody of his child. The child was in New Mexico and had come into the custody of the New' Mexico Department of Welfare upon defendant being jailed. It was defendant who selected New Mexico as the forum in which to have the property rights of the parties litigated and determined, although this had been accomplished by an Idaho court.

There is no merit to defendant’s contention that the plaintiff and the trial court were estopped from raising, considering or applying the doctrine of forum non conveniens because the case had been in court for a considerable time before the doctrine was raised. The question of disposing of. defendant’s claim as to the property rights of the parties came on for consideration immediately after the child custody question had been resolved. The applicability of the doctrine was thereupon considered by the court and defendant presented evidence in opposition thereto.

There is also no merit to defendant’s contention that her choice of New Mexico as the forum in which to litigate the property rights of the parties was absolute and the New Mexico court was without discretion in the matter.

The application of the doctrine of forum non conveniens rests largely in the discretion of the court to which the claimant resorts. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Price v. Atchison T. & S. F. Ry. Co., 42 Cal.2d 577, 268 P.2d 457 (1954); Proposed Official Draft, Restatement of the Law, Second, Conflict of Laws, § 84(b) (1967); Annot., Doctrine of Forum Non Conveniens, Assumption or Denial of Jurisdiction of Action Involving Matrimonial Disputes, 9 A.L.R.3d 545 (1966). The matters found by the trial court, as quoted above,'are among the more important considerations usually relied upon for denying jurisdiction under the doctrine. Gulf Oil Corp. v. Gilbert, 330 U.S. 508, 67 S.Ct. 839, supra; Gonzales v. Atchison, Topeka and Santa Fe Railway Co., 189 Kan. 689, 371 P.2d 193, 198 (1962); St. Louis-San Francisco Ry. Co. v. Superior Court, 290 P.2d 118 (Okl.1955); Annot., 9 A.L.R.3d, supra, § 3 at 547.

Another consideration which obviously confronted the trial court in the present case was that of the ultimate efficacy of any decree which the court might have rendered had it retained jurisdiction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marchman v. NCNB Texas National Bank
898 P.2d 709 (New Mexico Supreme Court, 1995)
Dow Chemical Co. v. Castro Alfaro
786 S.W.2d 674 (Texas Supreme Court, 1990)
Campbell v. Alpers
791 P.2d 472 (New Mexico Court of Appeals, 1990)
Chambers v. Merrell-Dow Pharmaceuticals, Inc.
519 N.E.2d 370 (Ohio Supreme Court, 1988)
Fierro v. Stanley's Hardware
722 P.2d 662 (New Mexico Court of Appeals, 1986)
Hester v. Hester
676 P.2d 1338 (New Mexico Court of Appeals, 1984)
FIRST NAT. BANK IN ALAMOGORDO v. Cape
673 P.2d 502 (New Mexico Supreme Court, 1983)
Westerby v. Johns-Manville Corp.
32 Pa. D. & C.3d 163 (Philadelphia County Court of Common Pleas, 1982)
Lopez v. K. B. Kennedy Engineering Co.
623 P.2d 1021 (New Mexico Court of Appeals, 1981)
Buckner v. Buckner
622 P.2d 242 (New Mexico Supreme Court, 1981)
Begay v. Foutz & Tanner, Inc.
619 P.2d 551 (New Mexico Court of Appeals, 1979)
Perez v. Gallegos
530 P.2d 1155 (New Mexico Supreme Court, 1974)
Citty v. Citty
524 P.2d 517 (New Mexico Supreme Court, 1974)
City of Roswell v. Reynolds
522 P.2d 796 (New Mexico Supreme Court, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
1973 NMSC 050, 510 P.2d 914, 85 N.M. 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclam-v-mclam-nm-1973.