Montes v. Manriquez

CourtNew Mexico Court of Appeals
DecidedApril 11, 2024
StatusUnpublished

This text of Montes v. Manriquez (Montes v. Manriquez) 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
Montes v. Manriquez, (N.M. Ct. App. 2024).

Opinion

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer- generated errors or other deviations from the official version filed by the Court of Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40700

PERLA A. MONTES,

Petitioner-Appellant,

v.

LUIS URIEL MANRIQUEZ,

Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY Michael H. Stone, District Court Judge

Law Office of Ross R. Bettis Ross R. Bettis Hobbs, NM

for Appellant

The Sawyers Law Group, LLC Melissa A. Sawyers Hobbs, NM

for Appellee

MEMORANDUM OPINION

YOHALEM, Judge.

{1} In this divorce case, Petitioner Perla A. Montes (Mother) appeals from the district court’s initial custody determination and the parenting plan concerning the parties’ two children (collectively, Children). Mother filed for divorce from Respondent Luis Uriel Manriquez (Father) in October 2021. Because custody of Children was contested, the district court appointed a guardian ad litem (GAL) in January 2022, under Rule 1-053.3 NMRA, to conduct an investigation and to provide the court with recommendations on custody and a parenting plan that would be in Children’s best interest. The GAL recommended that the parties share joint legal custody of Children, with Father having primary physical custody and Mother having substantial periods of responsibility for Children’s care. In August 2022, the district court held an evidentiary hearing to consider the parties’ objections to the GAL’s recommendations. Both parents and the GAL testified at that hearing and the GAL’s report and recommendations were introduced into evidence. At the conclusion of the hearing, the district court made oral findings, explaining the court’s reasons for adopting the GAL’s recommendations, and issued a written decree of dissolution that included a parenting plan and child support. Mother appeals. She challenges the district court’s award of primary physical custody of Children to Father, arguing that (1) the district court erred in failing to make particularized findings on each of the factors the Legislature has found to be relevant to Children’s best interests in NMSA 1978, Sections 40-4-9(A) (1977) and -9.1(B) (1999); (2) the district court’s finding that it was in Children’s best interest that Father have primary physical custody of Children was not supported by substantial evidence in the record at the hearing; and (3) the court abused its discretion in adopting the GAL’s recommendations, with only a few changes, rather than preparing its own findings of facts and conclusions. Not persuaded by Mother’s arguments, we affirm.

BACKGROUND

{2} Mother and Father have two children, a son and a daughter. At the time of the hearing in August 2022, their son was six years old and had started school, and their daughter was five years old and about to begin kindergarten. The parties were married in late June 2017. Mother and Father relocated several times between Hobbs, New Mexico, and Odessa, Texas both before their marriage and in the year following their marriage, from April 2016 until they separated in May 2018. When they separated, Father stayed in Odessa where the couple had been living with Children prior to the separation. Mother and Children moved to Mother’s parents’ home in Hobbs, which is an hour and a half drive from Odessa.

{3} Mother’s minor half-brother lived in the home, along with Mother’s parents, Mother, and Children. In September 2021, Father reported to the police that his daughter had disclosed that Mother’s half-brother had sexually abused her. The Children, Youth, and Families Department (CYFD) investigated and substantiated the allegation. Finding that Mother had delayed reporting the incident for six months, while she and Children continued to live in her parents’ home with her half-brother, CYFD issued a temporary custody order placing Children in Father’s home in Odessa.

{4} Mother moved out of her parents’ home shortly after Children were placed in Father’s temporary custody. She filed for divorce on October 15, 2021, and sought visitation with Children by motion. After a hearing on Mother’s motion, the district court issued an order outlining an interim visitation schedule in which Children stayed with Mother in Hobbs every other weekend. Mother was forbidden to allow any contact between Children and Mother’s half-brother. The district court appointed a GAL, pursuant to Rule 1-053.3, to assist the court in determining Children’s best interests for purposes of a permanent custody order and parenting plan. On July 28, 2022, the GAL submitted his recommendation that the district court award the parties joint legal custody of Children, with Father having primary physical custody and Mother having substantial periods of responsibility on weekends, school holidays, and during school vacations.

{5} The merits hearing occurred on August 8, 2022. Mother, Father, and the GAL testified. The district court admitted into evidence the GAL’s report of his investigation, which included interviews with both parents and observations of Children. According to Father, son was excelling academically in school and daughter was going to start school soon. Because Father was working forty to sixty hours a week as a flatbed truck driver, he shared caregiving responsibilities with his mother (paternal grandmother), who lives in Odessa, twenty minutes from him. Father’s son would take the bus to paternal grandmother’s residence after school, where Children remained until Father picked them up after work, and Father and Children stayed there overnight once or twice a week.

{6} Mother had begun working in April 2022 for a sports bar in Carlsbad, New Mexico, doing advertising and marketing. That job required her to commute from her home in Hobbs, which was approximately an hour away, two to three times a week. She worked remotely from home on the other days. Mother testified that she had not provided child support to Father even though Children were in his primary physical custody. Mother admitted on cross-examination that she received government benefits on Children’s behalf, even though they were no longer in her custody.

{7} The GAL testified positively about both Mother and Father, stating that he likely would have recommended equally shared physical custody if Mother and Father lived in the same city. With both Children in school and the drive between Odessa and Hobbs nearly an hour and a half, the GAL did not find fifty-fifty physical custody to be in Children’s best interest. The GAL explained that his recommendation to award primary physical custody to Father rather than Mother, was influenced by Mother’s response to daughter’s sexual abuse. Mother knew of the abuse in March 2021, but did not report it to CYFD until September 2021 and did not move out of her parents’ home until after CYFD removed Children to Father’s home. Mother relocated to Roswell, New Mexico for four months, and then moved to her own apartment in Hobbs, where she was living at the time of the hearing.

{8} The GAL testified that he had drafted his recommendations believing that Father did not know about daughter’s abuse until late August 2021. Father’s testimony at the hearing revealed that he had been told about the abuse by Mother in March 2021, and had delayed reporting the abuse waiting for Mother to act. The GAL was concerned about Father’s delay, admitting that this new information made his recommendation as to which parent would have primary physical custody a “closer call.”

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Cite This Page — Counsel Stack

Bluebook (online)
Montes v. Manriquez, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montes-v-manriquez-nmctapp-2024.