ALFIERI V. ALFIERI, 1987-NMCA-003, 105
N.M. 373, 733 P.2d 4 (Ct. App. 1987)
THOMAS GERARD ALFIERI,
Petitioner-Appellee,
vs.
CHRISTINE ANN ALFIERI, Respondent-Appellant
COURT OF APPEALS OF NEW MEXICO
1987-NMCA-003, 105 N.M. 373, 733 P.2d 4
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, ANNE KASS, Judge
THOMAS C. MONTOYA, ATKINSON & KELSEY,
P.A. for Petitioner-Appellee.
CALVIN HYER, JR., for
Respondent-Appellant.
{1} Appellant appeals from a
judgment of the trial court continuing child custody placement with her
contingent upon her returning to New Mexico from California with her minor
daughter and complying
{*375} with child
visitation awarded to appellee, her former husband, as provided by the court's
prior order. On appeal, the mother raises six contentions which we group and
jointly discuss as follows: (1) legality of restricting relocation of minor
child; (2) claim of error in the trial court's adoption of findings of fact;
and (3) whether the trial court's order is supported by substantial evidence.
Other issues raised in the docketing statement but not briefed are deemed
abandoned.
State v. Doe,
99 N.M. 456,
659 P.2d 908 (Ct. App.),
cert.
denied,
99 N.M. 477,
660 P.2d 119 (1983). We affirm.
{2} This case involves a
turbulent history. During their marriage, the parties had one child, a
daughter. The child was approximately two years old when the marriage was
dissolved on January 20, 1984. Following the divorce, the father remarried.
Thereafter, the mother filed a motion for an order to show cause, requiring the
father to show why he should not be held in contempt for failing to pay child
support in a timely manner. The trial court ordered the father to pay child
support in the amount provided in the agreement and to make monthly payments on
arrearages.
{3} In January 1985, the
father obtained an order to show cause why the mother should not be held in
contempt of court for failing to comply with his rights to visit and
communicate with the child and to advise the father "as to the health,
welfare and whereabouts" of his daughter. The trial court also referred
the parties to the court clinic for evaluation and mediation of this issue. After
a hearing, the court entered an order providing for the father's child
visitation rights and specifically detailing the dates and times when he was
permitted to visit his daughter. The April 4, 1985, order provided, among other
things, for weekly visitation by the father, two-month summer visitation
periods, and alternate visitation schedules on Thanksgiving and Christmas
holidays. The order also directed that the parties keep each other informed as
to the address of the child and recited that noncompliance with the visitation
schedule could subject a party to contempt of court.
{4} In August 1985, the
mother secretly moved to California and took her daughter with her without
notifying her former husband of the proposed move or the child's new address.
Thereafter, both parties filed motions in the district court: the father moved
for change of child custody and the mother sought to terminate or to modify the
father's right of child visitation.
{5} After a hearing on the
merits, the trial court adopted findings of fact providing, inter alia, that
prior to removing the child from this state, the mother did not inform the
father of her intent to move to California, nor of the child's new address or
phone number in California; that the minor child has a very close attachment to
her father and that the two have a good father-daughter relationship; that the
mother moved from New Mexico, "in part, to avoid dealing with [the father]
regarding [the child], and, in part, to interfere with and diminish [the
father's] parent/child relationship"; that the mother's action in removing
the child from the possibility of weekly contact with her father was not in the
child's best interest; and that removal of the child from New Mexico to
California "was detrimental to [the child's] welfare."
{6} Based upon its findings,
the trial court concluded in part that:
2. If [the mother] moves to Albuquerque, New Mexico, she will
retain sole custody as provided in the Final Decree and [the father] will have
visitation as provided in the Court's April 4, 1985, order;
3. If [the mother] decides not to move to Albuquerque, New
Mexico, then the parties are awarded joint legal custody of [the child], with
[her] principal place of residence placed with [the father] [.]
{7} The trial court also
concluded that because the mother's moving the child to California "was
done primarily to interfere with and diminish [the father's] contact and
relationship with [his daughter], New Mexico law allows for a change of custody
from the mother to the father." The court further concluded that it would
order a change
{*376} of child custody
only if the mother persisted in her decision to remain in California, and that
if she persisted in her efforts to interfere with and diminish the father's
relationship with the child of the parties, this conduct "in turn
render[s] her a less fit parent than is the father...."
I. RESTRICTION OF RIGHT TO TRAVEL
{8} At the heart of the
mother's appeal is her contention that the trial court's order providing for
joint custody and requiring her to give physical custody of her child to the
father unless she returns to this state, in actuality seeks to adjudicate the
place where the mother must reside; the mother argues this is an unlawful
infringement upon her right to travel or to relocate.
{9} The Supreme Court has
recognized that the right of an individual to travel freely throughout other
states or territories is secured by the United States Constitution.
E. g.,
Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981);
Shapiro
v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969);
Edwards
v. California, 314 U.S. 160, 62 S. Ct. 164, 86 L. Ed. 119 (1941). This
constitutionally-protected right to travel has been extended to invalidate laws
which impeded the individual's right to travel or which discourage the exercise
of this right.
Shapiro v. Thompson.
{10} Although recognizing the
right of a divorced parent who has been awarded custody of a minor child to
relocate, state courts have generally upheld judicial restrictions or
limitations upon removing a child from the jurisdiction in cases where the
relocation is determined to be contrary to the best interests and welfare of
the child.
See Garcia v. Garcia,
81 N.M. 277,
466 P.2d 554 (1970);
Urzua
v. Urzua,
67 N.M. 304,
355 P.2d 123 (1960);
see also Johnson v. Johnson,
455 So.2d 1332 (Fla. App.1984);
Ziegler v. Ziegler, 107 Idaho 527, 691
P.2d 773 (App.1985);
Carlson v. Carlson, 8 Kan. App.2d 564, 661 P.2d 833
(1983);
Meier v. Meier, 286 Or. 437, 595 P.2d 474 (1979); Spitzer,
Moving
and Storage of Postdivorce Children: Relocation, The Constitution and The
Courts, 1985 Ariz.St.L.J. 1; Hoffman,
Restrictions on a Parent's Right
to Travel in Child Custody Cases: Possible Constitutional Questions, 6
U.D.L.R. 181 (1973). In the Annotation in 154 A.L.R. 552, 556 (1945), it is
noted:
The general rule that in matters affecting the custody of a
child the court will be governed primarily by the welfare and best interests of
the child applies in determining whether the court will award custody to a
non-resident or grant or refuse permission to remove a child from the
jurisdiction in a divorce or separation case.
See also Annots., 15 A.L.R.2d 432 (1951); 30 A.L.R.4th
548 (1984).
{11} In
Garcia, the
New Mexico Supreme Court confirmed the "best interests of the child"
rule, but recognized that the right of a custodial parent to relocate should
not be interfered with except where the move would clearly be contrary to the
child's welfare. The court held:
the fact the parent with custody is a non-resident or about
to become one, for whatever reason, [does not alter] the universal rule that
the best interests of the child are paramount; that if those interests are best
served by being with the mother, even though outside this jurisdiction, removal
should be permitted.
Id., 81 N.M. at 279, 466 P.2d at 556. See also
Urzua v. Urzua. In State v. Whiting, 100 N.M. 447, 449, 671 P.2d
1158, 1160 (Ct. App.1983), this court further observed that a parent's
"natural right to custody includes the right to remove the child from this
jurisdiction in the absence of any legal modification of that right."
{12} As observed in
Garcia
and
Urzua, the best interests of the child control the right of a
custodial parent to move a child from this jurisdiction and where a challenge
to the right of a parent to move a child from the state is raised by the
noncustodial parent, the decision of whether to grant the relocation is
addressed to the sound discretion of the trial court based
{*377}
upon the child's best interest and welfare.
See also Meier v. Meier.
{13} Following entry of the
initial decree of divorce, on April 4, 1985, the trial court entered an order
modifying child visitation rights, thereby amplifying the father's right to
specific visitation. The order specified that the father was awarded visitation
on alternating weekends from 4:30 p.m. Friday until Monday morning; each
Wednesday from 4:30 p.m. until Thursday morning; on specified holidays; and for
a two-month period during each summer. The order further recited that the
failure of the parties to comply with the terms of the order may subject them
to a ruling of contempt. Under these facts, the mother, as custodial parent,
could not unilaterally abrogate the father's right to specific visitation with
his daughter without court approval.
{14} The trial court
expressly determined that the parties' minor child has a close attachment to
her father and that one of the mother's motives in relocating outside New
Mexico was to diminish the father's parent-child relationship so as to deprive
the child and her father of the interaction, society and visitation of the
other. The court also found that restricting the child's contact with her
father and removal from New Mexico to California "was detrimental" to
the child's welfare.
{15} Under the facts herein,
the ruling of Judge Kass sought to balance the best interests of the child with
the right of the mother to relocate. New Mexico follows the rule that a
parent's natural right to custody includes the right of a custodial parent to
relocate, except where such right has been legally modified. Here, however,
that right had been modified by the mandatory visitation provisions spelled out
in the April 4, 1985, court order. The trial court's ruling under the
circumstances here shown, was based upon findings of the best interests and
welfare of the child and that the mother improperly sought to cut off the
father and the child from visiting and associating with each other. Under these
circumstances, we do not find that the trial court's ruling was an abuse of
discretion or contrary to law. Although we caution that orders limiting or
restricting a custodial parent's right to relocate should only be entered in
exceptional cases after alternative means of continuing parent-child
association have been considered, we find no error in the trial court's ruling
under the facts herein.
{16} The mother argues that
there is an insufficient evidentiary basis for the trial court's finding that
her primary purpose in moving from this state was to avoid or diminish the
father's right to visitation with his daughter and that her purpose in part was
to interfere with and diminish the father's parent-child relationship. The
mother's brief-in-chief specifically challenges other related findings adopted
by the trial court and asserts that they are not supported by substantial
evidence. Since the mother's challenge to the findings turns on her assertion
that they are not supported by substantial evidence, we discuss these issues
jointly. We have examined the record herein and find against her on this issue.
{17} It is black-letter law
that on appellate review wherein appellant challenges the sufficiency of the
evidence, the reviewing court will uphold the trial court's findings and
conclusions if they are supported by substantial evidence.
Martinez v.
Martinez,
101 N.M. 88,
678 P.2d 1163 (1984). The appellate court will view
the facts and evidence in a light most favorable to the ruling of the trial
court, indulge in all reasonable inference in support of the court's findings,
and will disregard all inferences or evidence to the contrary.
Cave v. Cave,
81 N.M. 797,
474 P.2d 480 (1970).
See also Seeley v. Jaramillo,
104 N.M.
783,
727 P.2d 91 (Ct. App.1986).
{18} The mother also argues
that the trial court erred in refusing to adopt requested findings of fact
submitted by her and which she alleges were supported by substantial evidence.
The mother misperceives the role of this court on appeal. The
{*378} test to be applied on appeal is whether
there is substantial evidence to support the trial court's ruling, not whether
there is evidence to support a different result.
Abbinett v. Fox 103
N.M. 80,
703 P.2d 177 (Ct. App.1985).
{19} The mother ascribes
other motives to her actions and contends that she moved to California because
her former husband mentally and physically abused both her and the child. She
argues that her testimony substantiating this motive is uncontroverted and that
the trial court is compelled to find accordingly. We disagree. The trier of
fact does not act arbitrarily in disregarding alleged uncontradicted testimony
where legitimate inferences may be drawn from the facts and circumstances that
contradict or cast reasonable doubt on the truth or accuracy of the testimony.
Medler
v. Henry,
44 N.M. 275,
101 P.2d 398 (1940). Further, "
the interest
of the witness furnishes a proper ground for hesitating to accept his
statements [.]"
Strickland v. Roosevelt County Rural Electric Cooperative,
94 N.M. 459, 465,
612 P.2d 689, 695 (Ct. App.1980) (
quoting and
emphasizing
Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102 (1900)). The
evidence bearing on this issue was conflicting. The trial court having heard
the evidence and seen the witnesses and weighed their demeanor, could
reasonably infer from the evidence that one of the mother's motives in removing
the child from New Mexico was based upon a desire to impede the father's right
of visitation and association with his daughter.
{20} The trial court ordered
a psychological evaluation of both parents by the court clinic. As shown by the
report prepared by psychologists Dan Matthews, Ph.D., and Terry Ginsberg, M.A.,
and admitted into evidence, the mother was found to harbor strong anger toward
her former husband and sought to escape contact with him because she
"resents his continued intrusion in her life through their daughter."
The court clinic also noted that the mother moved to California to avoid her
own problems with the father as well as the specific difficulties in dealing
with him regarding the child. Moreover, Dr. Matthews testified that the mother
was adamant about not having her child around the father and appeared agitated
and angry about this factor. Additionally, Ginsberg testified that the clinic
was concerned because it discerned that the mother was talking negatively about
the father to the child and to others in the presence of the child.
{21} The report recommended
leaving the child with her mother but further noted that the mother's
"action in removing [the child] from the possibility of weekly contact
with [the father]... cannot be seen as in [the child's] ultimate best
interest." The court clinic further recommended that the child "spend
frequent time in her father and stepmother's care. Weekly contact would be most
desirable."
{22} Ginsberg also testified
that, based on his observation, the child appeared to have a very close
attachment to the father; they easily engaged each other during structured and
unstructured activities; and, there was no indication of stress or anxiety.
{23} Dr. Matthews testified
that moving the child to California negatively impacted and was detrimental to
the child's relationship with her father. Dr. Matthews' further testimony
indicated that if the child grows up without a relationship with her father or
with a negative image of her father, this could foreseeably result in causing
problems with the child's progress in school, emotional health, and future
relationships. Dr. Matthews also testified that one reason a weekly visitation
schedule is in the child's best interests is because a child at that age (four
years) does not have a long enough memory span to remember her father even from
a previous contact at three-week intervals and will be unable to imagine the
next contact if they are not frequent; consequently, it was important that a
child of this age should have frequent parent contacts.
{24} The record further
indicates that the mother, without notice to her former husband, secretly made
arrangements to remove
{*379} the child
from New Mexico and to prevent the father from obtaining phone contact or
knowing of the child's location. The mother contends she was not restricted in
any way from moving to California with the child in August, 1985, because the
January 20, 1984, marital settlement agreement included an alternative
visitation schedule in the event the parties at some point no longer continued
to reside in the same metropolitan area. The subsequent April 4, 1985,
visitation order adopted by the trial court, however, did not include such a
provision and specifically mandated each parent's compliance with the
visitation schedule detailed by the court. The mother's challenge to the trial
court's findings are without merit. Applying the above rules, we determine that
the trial court's findings are supported by substantial evidence.
III. BASIS FOR CHANGE OF CUSTODY
{25} We turn next to the
mother's argument that the record fails to support the trial court's
determination that there has been a significant change of circumstances
sufficient to justify the contingent change of custody as ordered by the court.
{26} Child custody may be
modified only upon evidence establishing a substantial change of circumstances
which has occurred subsequent to the entry of a decree of divorce and which
changed circumstances are shown to materially affect the best interests and
welfare of the child.
See Seeley v. Jaramillo;
see also NMSA
1978, §§
40-4-7 and -9.1 (Repl.1986). The burden of proof to establish a change
of custody is upon the party seeking modification.
Seeley v. Jaramillo.
{27} Inherent in the
visitation privileges granted to a noncustodial parent under a court decree is
a correlative obligation resting upon the custodial parent that such visitation
privileges and the right of the child to associate with both parents will not
be unreasonably impeded or destroyed.
See Johnson v. Johnson, 455 So.2d
1332 (Fla.1984).
Lopez v. Lopez,
97 N.M. 332,
639 P.2d 1186 (1981),
recognized that a custodial parent's demonstrated lack of cooperation and
refusal to follow prior court orders concerning visitation may constitute
grounds for a change of custody in an extreme case.
{28} In
Montero v. Montero,
96 N.M. 475,
632 P.2d 352 (1981), the court noted that where a close
relationship already exists, visitation between parent and child involves a
wholesome, if not vital, contribution to the child's emotional well-being. The
custodial parent, who usually has a great deal of influence over the children
so as to prevent bitterness or vindictiveness against the noncustodial parent,
has an important responsibility to endeavor and preserve the normal
parent-child relationship with the noncustodial parent.
Spingola v. Spingola,
91 N.M. 737,
580 P.2d 958 (1978).
{29} The trial court found
that the mother sought to improperly interfere with the parent-child
relationship existing between the child and her father. The court also
concluded that, while the fact of moving to another state does not constitute a
proper basis to warrant a change of custody, when coupled with the
"inappropriate goal of interfering with and diminishing the other parent's
relationship with the child," these facts constitute sufficient changed
circumstances to warrant a change of custody.
{30} Although the evidence
was in part circumstantial, there was substantial evidence to allow the trial
court to form the basis requiring the mother to return her daughter to this
state in order to permit continued association with her father. It is not
necessary to establish by direct testimony of witnesses the existence of every
material fact; facts may be proven by circumstantial evidence.
Dodge v.
Tradewell Stores, Inc., 256 Or. 514, 474 P.2d 745 (1970).
See also
Tanner v. Farmer, 243 Or. 431, 414 P.2d 340 (1966). In a civil case,
circumstantial evidence is competent to prove a fact in issue and it is
unnecessary that such proof rise to the degree of certainty to support only one
conclusion to the exclusion of all others.
Casey v. Phillips Pipeline Co.,
199 Kan. 538, 431 P.2d 518 (1967).
{*380} Circumstantial
evidence consists of proof of facts or circumstances which give rise to a
reasonable inference of the truth of the facts sought to be proved.
See
NMSA 1978, UJI Civ. 3.11 (Repl. Pamp.1980).
{31} The trial court's
conditional order relating to custody of the minor child of the parties was not
an abuse of discretion or contrary to law.
{32} The order of the trial
court is affirmed.
A. JOSEPH ALARID, Judge and HARVEY FRUMAN, Judge, CONCUR.