Turley v. Whetten

• Court: New Mexico Court of Appeals
• Decided: April 20, 2017
• Docket: 35,846
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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

2 DENAE TURLEY, and EDITH 3 TURLEY and KARL TURLEY,

4 Petitioners-Appellees,

5 v. No. 35,846

6 TYRONE WHETTEN,

7 Respondent-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY 9 J.C. Robinson, District Judge

10 Lopez, Dietzel & Perkins, P.C. 11 Cathryn L. Wallace 12 Silver City, NM

13 for Appellees

14 New Mexico Legal Aid, Inc. 15 Kate M. Merwald 16 Santa Fe, NM

17 for Appellant

18 MEMORANDUM OPINION

19 ZAMORA, Judge. 1 {1} Defendant Tyrone Whetten (Father) appeals from a district court order

2 awarding joint custody. We issued a calendar notice proposing to affirm. Father has

3 responded with a memorandum in opposition. Not persuaded by Father’s arguments,

4 we affirm the district court.

5 {2} Father continues to challenge the evidence to support the district court’s

6 custody determination. We will overturn the district court’s custody decision only for

7 abuse of discretion, and we will uphold the court’s findings if they are supported by

8 substantial evidence; an abuse of discretion occurs when a ruling is clearly contrary

9 to the logical conclusions demanded by the facts and circumstances of the case. See

10 Grant v. Cumiford, 2005-NMCA-058, ¶ 13, 137 N.M. 485, 112 P.3d 1142.

11 {3} Here, Father and Mother have two children together: J.W., born in October

12 2013 and E.T., born in June 2015. [RP 132] While Mother was still pregnant with

13 E.T., she and her parents filed a petition for custody, support, and grandparent

14 visitation. [RP 1] The district court awarded Father and Mother joint legal custody of

15 the children, gave Mother primary physical custody of E.T., and gave Father primary

16 physical custody of J.W. [135]

17 {4} Defendant’s memorandum in opposition continues to claim that the district

18 court failed to properly consider the factors in NMSA 1978, Section 40-4-9 (1977)

19 (setting out standards for the determination of child custody), and NMSA 1978,

2 1 Section 40-4-9.1(B) (1999) (setting out factors to consider with respect to joint

2 custody). We disagree. A review of the district court’s findings and conclusions [RP

3 132], as well as its order denying the motion to amend [RP 166], indicate that the

4 district court gave due consideration to these factors, and applied them to the unique

5 circumstances of this case. See Crutchfield v. N.M. Dep’t of Taxation & Revenue,

6 2005-NMCA-022, ¶ 28, 137 N.M. 26, 106 P.3d 1273 (stating that we liberally

7 construe the trial court’s findings to support the judgment).

8 {5} The district court took judicial notice of Mother’s criminal case, and noted that

9 Mother had been participating in counseling as a result. [RP 132-33] The district court

10 found that there is no credible evidence that either parent is unable to or unwilling to

11 care for the children. [RP 134] With respect to protecting Father from any future

12 abuse, the district court ordered that all communications between the parties be in

13 writing, that Mother continue with her counseling and treatment, and that all

14 exchanges of the children take place at the KISS facility. [RP 168-69, ¶¶ 14-15] The

15 district court was free to reject the GAL’s recommendation [referenced at RP 97] that

16 Father should have primary physical custody of both of the children. See Kimbrell v.

17 Kimbrell, 2014-NMSC-027, ¶ 12, 331 P.3d 915 (stating that the district court is not

18 bound by the recommendations of the GAL). The district court also found that both

19 parents receive substantial support from their respective families. [RP 133] It is clear

3 1 from the court’s findings that the district court believed that Mother’s prior criminal

2 conduct would not prevent her from being able to properly parent her children. [RP

3 133; 169-70] See § 40-4-9.1(B)(9) (requiring a finding that the custody order

4 adequately protects child or other parent where there has been domestic violence).

5 {6} With respect to Father’s claim that it was wrong to separate E.T. from her

6 brother and half-siblings, the district court’s order will have E.T. with her brother on

7 each weekend, and she will also be with her half-siblings every other weekend. [RP

8 135] The district court specifically emphasized that its order did not permanently

9 separate the children. [RP 163] In sum, a reading of the findings as a whole indicate

10 that the district court considered the applicable statutory factors, and the findings are

11 supported by substantial evidence.

12 {7} For the reasons set forth above, we affirm.

13 {8} IT IS SO ORDERED.

14 15 M. MONICA ZAMORA, Judge

16 WE CONCUR:

17 18 JAMES J. WECHSLER, Judge

4 1 MICHAEL E. VIGIL, Judge