Seeley v. Jaramillo

727 P.2d 91, 104 N.M. 783
CourtNew Mexico Court of Appeals
DecidedSeptember 30, 1986
Docket8851
StatusPublished
Cited by13 cases

This text of 727 P.2d 91 (Seeley v. Jaramillo) 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
Seeley v. Jaramillo, 727 P.2d 91, 104 N.M. 783 (N.M. Ct. App. 1986).

Opinion

OPINION

DONNELLY, Judge.

The father, Mike R. Jaramillo, appeals from an order of the trial court transferring the physical custody of a minor daughter from himself to the child’s mother, Lora Jean Seeley. Two issues are raised on appeal: (1) whether there was substantial evidence to support the trial court’s finding of a material change of circumstances warranting a change of custody; and (2) whether the trial court erred in modifying child custody by applying the “tender years doctrine” and a preference based upon gender. We reverse and remand.

The parties were divorced in March 1983. The final decree provided that the parties were awarded joint custody of their minor daughter, age two, invested the father with primary custodial care of the child, and ordered the mother to pay child support in the amount of $75 per month, and one-half of all medical and dental costs for the child.

In April 1984, the mother moved to modify the decree to transfer custody of the child to her. The father responded, claiming there was no material change in circumstances, and sought an increase in child support and specific dates and times for the exercise of visitation rights. Following a hearing on the motion for modification, the trial court entered a decision adopting a single finding of fact that the circumstances of the parties and the minor child had materially changed and transferred primary custody of the child to the mother. In Jaramillo v. Jaramillo, 103 N.M. 145, 703 P.2d 922 (Ct.App.1985), this court remanded for the adoption of additional findings of fact as required by NMSA 1978, Section 40-4-9.1 (Repl.Pamp.1983), delineating the reasons for modification of custody.

Thereafter, the trial court adopted an amended decision finding:

1. That since the entry of the Final Decree of Dissolution of Marriage herein, the [father] has properly and adequately cared for the minor child of the parties.
2. That since the entry of the Final Decree of Dissolution of Marriage herein, the [father] and the minor child of the parties had been living with a male roommate, and subsequently moved in with the [father’s] sister.
3. That since the entry of the Final Decree of Dissolution of Marriage herein [the mother] has remarried and has established a stable home environment.
4. That the [mother’s] situation with regard to the care of the minor child of the parties is now more stable than it was at the time of the entry of the Final Decree of Dissolution of Marriage * * * and is now more stable than the [father’s] situation in such regard now is.
5. That said child is still of tender years.
6. That said child is of the same sex as that of the [mother].
7. That the circumstances of the parties and their minor child pertaining to the custody and support of said minor child have materially changed since the entry of the Final Decree herein.

SUFFICIENCY OF EVIDENCE & VALIDITY OF CUSTODY AWARDS BASED ON GENDER OF PARENT

We consider jointly, the father’s two points raised on appeal.

The father asserts that the trial court’s order changing primary custody of the child of the parties to the mother was not supported by substantial evidence. We agree.

The evidence adduced at trial indicated that at the time of the divorce of the parties, the mother obtained a default decree of divorce and consented to place primary custody of their two-year-old daughter with the father. Shortly thereafter, the mother began living with another man. Approximately a year later, the mother married that man and initiated proceedings to obtain primary custody of her daughter.

After the mother sought modification of custody, the father changed residences, moving with the child into the mobile home occupied by his sister. At the time of the hearings on the motion for modification, the father was a student at New Mexico State University and the mother was working as a secretary. At the hearing below, the father testified that he worked in the evenings a few times each month, and that he had obtained a student loan and a financial grant, permitting him to reduce his work hours.

Under NMSA 1978, Section 40-4-7 (Repl.1986), child custody may be modified only upon a showing of a substantial change of circumstances occurring subsequent to the entry of the decree of divorce affecting the best interests and welfare of the child. See also § 40-4-9.1. The burden of proof is upon the party requesting modification. Edington v. Edington, 50 N.M. 349, 176 P.2d 915 (1947). On appeal, in determining whether the trial court’s findings of fact are supported by substantial evidence, a reviewing court resolves all disputed facts and indulges in all reasonable inferences in favor of the successful party and disregards all inferences to the contrary. Lahr v. Lahr, 82 N.M. 223, 478 P.2d 551 (1970). In Schuermann v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980), the court reiterated the rule that in proceedings seeking modification of child custody, the controlling consideration focuses upon the child’s best interest and welfare. See also NMSA 1978, § 40-4-9 (Repl.1986).

Here, the evidence indicated that at the time of the hearing, the mother had remarried and moved into a three-bedroom home. The father, who had been sharing a one-bedroom apartment with a roommate, moved with the child into a three-bedroom mobile home with his sister. The father was enrolled as an engineering student at New Mexico State University and attended classes and worked during the week, leaving the child with a babysitter. The mother was employed full-time as a secretary during the week and testified that because of her work schedule, she too would have to leave her daughter with a babysitter during workdays.

Dr. Ross Easterling, a clinical psychologist, by stipulation of the parties, interviewed both parents and the minor child. Dr. Easterling testified that he found both the mother and father to be fit parents, that the existing custodial arrangements had not adversely affected the child, that developmentally the child appeared to be normal, and that the child displayed no behavioral or psychological problems. Dr. Easterling testified that despite the fact that the child had no apparent psychological problems as a result of living with her father, nevertheless, due to her sex and age, the child should be with the mother in order to have an appropriate female role model. Dr. Easterling also stated that he felt that the mother’s remarriage would serve to provide a more stable home for the child than that provided by a single parent.

In Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932

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Bluebook (online)
727 P.2d 91, 104 N.M. 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seeley-v-jaramillo-nmctapp-1986.