R Virden v. S Richesin

• Court: New Mexico Court of Appeals
• Decided: May 26, 2009
• Docket: 29,048
• Status: Unpublished

Opinion

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

2 ROBERT M. VIRDEN,

3 Petitioner-Appellant,

4 v. NO. 29,048

5 SHANNON M. RICHESIN,

6 Respondent-Appellee,

7 and

8 DYLAN T. BEGLEY,

9 Intervenor-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Ernesto Romero, District Judge

12 Robert M. Virden 13 Rio Rancho, NM

14 Pro se Appellant

15 The Aragon Law Firm 16 Robert J. Aragon 17 Albuquerque, NM

18 for Appellee

19 Paul Cohen 1 Albuquerque, NM

2 for Intervenor

3 MEMORANDUM OPINION

4 KENNEDY, Judge.

5 Petitioner argues the district court erred in entering a minute order changing his

6 minor child’s (Child) name more than two years after a final order was entered. [DS

7 4] We issued a calendar notice proposing to reverse the district court on March 4,

8 2009. Respondent filed a response in partial opposition on March 23, 2009. We

9 remain unpersuaded by Respondent’s arguments and reverse the district court.

10 This case arises from an action to determine paternity, time-sharing, custody,

11 and child support filed by Petitioner in November 2005. [RP 1; MIO 1] In 2006, the

12 district court entered an order adjudicating Petitioner the biological father of Child.

13 [RP 127] At the same time the court changed the name of Child from Noah Silverio

14 R. to Robert Noah V. [Id.] The final paternity decree was entered on June 1, 2007,

15 whereby Petitioner was adjudicated the biological father of Child and a motion to

16 terminate his parental rights was denied. [RP 348-349, 352-353] This decree refers

17 to Child as Noah Robert R. [RP 348] Child’s birth certificate, however, names Child

18 as Robert Noah V., pursuant to the 2006 order. [DS 3]

2 1 During a status conference on September 11, 2008, Petitioner apparently

2 requested the district court issue an order for Child’s school records to be changed to

3 reflect the name found in the 2006 order; Respondent had allegedly enrolled Child in

4 school under a different name. [DS 3] Instead of granting this request, the district

5 court apparently declared that a typographical error had been made and directed the

6 parties to come up with a new name for Child. [Id.] The parties were unable to agree

7 and on September 11, 2008, the district court entered a minute order changing Child’s

8 name to Noah Silverio R-V. [MIO 2] Apparently, neither party had requested this

9 name change and it is unclear why the district court entered the order changing

10 Child’s name or how it arrived at the name. [DS 4] No findings of fact or conclusions

11 of law were entered for the 2008 order.

12 Parents are statutorily authorized to request name changes for their minor

13 children, provided they follow certain notice and publication requirements. See

14 NMSA 1978, § 40-8-1 (1989) (“The parent or guardian of any resident of this state

15 under the age of fourteen years may, upon petition to the district court . . . have the

16 name of his child or ward changed or established by order of the court.”); see also

17 NMSA 1978, § 40-8-2 (2001) (requiring publication of a proposed name change for

18 two weeks). Moreover, we have repeatedly held the authority of courts to fashion

19 rulings in the best interests of children is broad. See generally Jeantete v. Jeantete,

3 1 111 N.M. 417, 421, 806 P.2d 66, 70 (Ct. App. 1990). In light of the district court’s

2 continuing jurisdiction in this case, the district court appears to have been at liberty

3 to address the question of Child’s name in the course of the pending proceedings,

4 assuming either party had filed a motion for change of name.

5 Here, however, neither party requested a change of name for Child. Respondent

6 argues NMSA 1978, Section 40-11-18 (1986) gives the court continuing jurisdiction

7 to modify any orders it issues, regardless of whether such modification was requested

8 by a party. We decline to adopt this interpretation of the statute. Contrary to

9 Respondent’s contention, Section 40-11-18 specifically limits the continuing

10 jurisdiction of the court to orders for future support. The district court order in this

11 case had nothing to do with support.

12 Moreover, while we acknowledge the district court’s equitable powers to

13 fashion remedies in the best interest of children, that power is not unlimited. See, e.g.,

14 Ridenour v. Ridenour, 120 N.M. 352, 354, 901 P.2d 770, 772 (Ct. App. 1995)

15 (reiterating the court balances the fundamental right of a parent to personal choice in

16 familial relationships with the best interest of the child). We see nothing in the record

17 to indicate Child’s name was changed because Child had some special need, nor does

18 it appear the district court even considered the parental right of choice. We therefore

19 hold it was unreasonable for the district court to change Child’s name, absent a request

4 1 from either party. Furthermore, had either party made such a request, the other party

2 should have been provided with an opportunity to respond. We also decline to accept

3 Respondent’s request that we affirm that part of the order changing Child’s first and

4 last name and remanding solely for consideration of Child’s middle name. [MIO 2]

5 We also note the record does not indicate Child’s name was a typographical

6 error, which also might permit the district court to revise the 2006 order. See Rule 1-

7 060(A) NMRA (permitting a court to revise an order to correct clerical mistakes at any

8 time); see also In re Estates of Hayes, 1998-NMCA-136, ¶ 15, 125 N.M. 820, 965

9 P.2d 939 (explaining that “[t]he kinds of mistakes that can be corrected under Rule 1-

10 060(A) include: (1) transcription and mathematical errors; (2) ambiguities in a

11 judgment (e.g. in order to clarify the court’s original intention when a judgment is

12 vague); and (3) errors of omission, but only if the omission misrepresented the court’s

13 intention,” and noting that it is inappropriate to use Rule 1-060(A) where the court

14 changes its mind).

15 Nothing in the record appears to indicate the name in the 2006 order was a

16 clerical mistake. No party appears to have objected to the form of the 2006 order [RP

17 128] and that name repeatedly appears in subsequent pleadings. [See, e.g., RP 165,

18 170, 183] Instead it appears from the record, docketing statement, and response that

19 the district court changed Child’s name on its own initiative, more than two years after

5 1 it had previously decided the issue in 2006. We hold such an action is outside the

2 discretion of the district court.

3 We therefore reverse the district court’s order changing Child’s name.

4 IT IS SO ORDERED.

5 6 RODERICK T. KENNEDY, Judge

7 WE CONCUR:

8 9 MICHAEL D. BUSTAMANTE, Judge

10 11 CELIA FOY CASTILLO, Judge