SANDERS V. ROSENBERG, 1997-NMSC-002,
122 N.M. 692, 930 P.2d 1144
CASE HISTORY ALERT: see ¶4 - affects
1995-NMCA-039
MERLE APPLEBAUM SANDERS,
Petitioner-Respondent,
vs.
MICHAEL G. ROSENBERG, Respondent-Petitioner.
SUPREME COURT OF NEW MEXICO
1997-NMSC-002, 122 N.M. 692, 930 P.2d 1144
ORIGINAL PROCEEDING ON CERTIORARI.
William F. Lang, District Judge.
Motion for Rehearing Denied January 13,
1997. Released for Publication January 13, 1997. As Corrected January 31, 1997.
Second Corrected April 1, 1997.
Shannon L. Donahue, P.C., Shannon L.
Donahue, Albuquerque, NM, Cindi L. Pearlman, P.C., Cindi L. Pearlman,
Albuquerque, NM, for Petitioner.
Law Office of Mel B. O'Reilly, Mel B.
O'Reilly, Albuquerque, NM, for Respondent.
GENE E. FRANCHINI, Justice. WE CONCUR:
JOSEPH F. BACA, Chief Justice, DAN A. MCKINNON, III, Justice
AUTHOR: GENE E. FRANCHINI
{1} We granted
Petitioner Michael Rosenberg's petition for writ of certiorari to determine
whether the Court of Appeals correctly ruled that the trial court's
disqualification of counsel was an abuse of discretion. We hold the trial
court's discretion to determine the best interest of children is sufficiently
broad to support the disqualification of counsel, and, provided there is
substantial evidence to support the ruling, it will not be disturbed on appeal.
In the instant case, we find no abuse of discretion and affirm the trial
court's decision to disqualify Sanders. We therefore reverse the decision of
the Court of Appeals.
Facts and procedure. The underlying suit giving
rise to the disqualification order concerned the divorce of the Petitioner
Michael G. Rosenberg (Rosenberg) and Respondent Merle Applebaum Sanders
(Merle). Subsequent to the entry of the final divorce decree in July 1985, the
parties litigated recurring issues of the custody of their three children, time
sharing, and child support. During their marriage, Merle and Rosenberg had
three children, who primarily reside with their mother Merle. In 1990, Merle
married Respondent Steven K. Sanders (Sanders), an attorney, and in January
1993 he entered his appearance to represent her on the remaining issues in the
ongoing divorce proceedings.
{2} In 1993, Rosenberg
moved to disqualify Sanders on three separate occasions on the grounds that
Sanders was a necessary witness and his representation would not be in the best
interest of the children. The court denied Rosenberg's motions. The following
year, in 1994, Rosenberg filed a motion for a protective order requesting that
Sanders not be allowed to take his deposition because of Sanders's dual roles
as stepfather to Rosenberg's children and present husband of his ex-wife. The
court granted Rosenberg's motion for a protective order, finding that allowing
Sanders to take Rosenberg's deposition would not be in the best interests of
the children. Thereafter, the court agreed to reconsider whether Sanders should
be disqualified as counsel in the case and requested the parties provide
affidavits on the matter. Before that court could rule on the disqualification
issue, the case was transferred to another judge.
{3} Following its
reassignment, Rosenberg renewed his motion to disqualify Sanders. After a
hearing on that motion, the newly assigned judge ruled that Sanders should be
disqualified. Sanders appealed.
{4} On interlocutory
appeal, the Court of Appeals reversed, holding that the trial court's
disqualification of counsel constituted an abuse of discretion. The Court of
Appeals held that Sanders had not violated Rule 16-107, and, though it
recognized the trial court's broad authority to fashion rulings in the best
interests of the children, it held that such authority was not sufficiently
broad to disqualify a party's attorney absent an ethical or other violation. We
disagree and reverse the decision of the Court of Appeals.
{5} Standard. We
review the trial court's decision under a substantial evidence and abuse of discretion
standard.
See Clovis Nat'l Bank v. Harmon,
102 N.M. 166, 168-69,
692
P.2d 1315, 1317-18 (1984) (considering a substantial evidence claim, this Court
views the evidence in the light most favorable to the result below, resolving
all conflicts and
{*694} indulging in
all inferences in favor of the trial court's decision);
City of Santa Fe v.
Komis,
114 N.M. 659, 663,
845 P.2d 753, 757 (1992) (holding that an abuse
of discretion is found when the trial court's rulings were "clearly
against the logic and effect of the facts and the circumstances before the
court");
State v. Litteral,
110 N.M. 138, 141,
793 P.2d 268, 271
(1990);
State v. Simonson,
100 N.M. 297, 301,
669 P.2d 1092, 1096
(1983);
Alpers v. Alpers,
111 N.M. 467, 472,
806 P.2d 1057, 1062 .
{6} The trial court's
broad discretion to fashion its rulings in the best interest of children
includes the authority to disqualify counsel. When the trial court entered
its disqualification order, it set forth the following two grounds for its
ruling:
B. It is not in the best interests of the minor
children of the parties for their stepfather and mother's husband, Steven K.
Sanders, Esq., to continue his representation of the children's mother, Merle
A. Sanders, in this matter.
C. The interests of justice would be impeded if Steven
K. Sanders were allowed to continue his representation of the Petitioner in
this matter.
{7} Prior to the entry
of its order, the trial court filed a letter decision that alluded to Sanders's
continued representation of Merle as violative of Rule 16-107. The trial
court's disqualification order, however, made no mention of any ethical or
other violation, relying instead upon its broad discretion to fashion its
rulings in the best interests of the children. Accordingly, we address only the
trial court's stated basis for its ruling as explicitly expressed in its final
order, rather than the application of SCRA 16-107.
{8} As Petitioner
Rosenberg correctly asserts, a number of courts have held that "[a] trial
court has broad discretion in determining whether disqualification is required
in a given case."
Greater Rockford Energy & Tech. Corp. v. Shell
Oil Co., 777 F. Supp. 690, 693 (C.D. Ill. 1991) (citing
Schloetter v.
Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976);
see also
Redd v. Shell Oil Co., 518 F.2d 311, 314 (10th Cir. 1975);
Gould v.
Mitsui Min. & Smelting Co., 738 F. Supp. 1121, 1125 (N.D. Ohio 1990);
Kalmanovitz
v. G. Heileman Brewing Co., Inc., 610 F. Supp. 1319, 1322 (D.Del. 1985).
Similarly, a number of courts have also held that any doubts should be resolved
in favor of disqualification.
See Hull v. Celanese Corp., 513 F.2d 568
(2d Cir. 1975);
Cronin v. Eighth Judicial Dist. Court, 105 Nev. 635, 781
P.2d 1150, 1153 (Nev. 1989).
{9} Even though a
party has a right to be represented by an attorney of her own choosing,
see
Chappell v. Cosgrove,
121 N.M. 636, 638,
916 P.2d 836, 838 (1996) (citing
In
re American Cable Publications, Inc., 768 F.2d 1194, 1196 (10th Cir. 1985))
we have recognized that such a right is not absolute.
Chapell, 121 N.M.
at 638, 916 P.2d 838. If a compelling reason exists that supports the
disqualification of counsel, a court may reject that party's chosen counsel.
Id.
(citing,
Ramsay v. Boeing Welfare Benefit Plans Comm., 662 F. Supp. 968,
970 (D. Kan. 1987) ("The court is also mindful that a person's right to
select his own counsel, although not an absolute right, may be overridden only
where compelling reasons exist."). In
Chappell, we determined that
the trial court was entitled to exercise its discretion to disqualify the
party's choice of counsel when the counsel was a necessary witness under SCRA
1986, 16-307 (Repl. Pamp. 1995) (lawyer as witness). 121 N.M. at 640, 916 P.2d
at 840. In that case, because we found that the disqualified counsel was not a
necessary witness, we found no compelling reason existed that was sufficient to
override a party's choice of counsel.
Id. In the instant case, we
determine whether the trial court's disqualification of Sanders under the
"best interests of the children" rule constitutes a compelling reason
sufficient to deny the mother her counsel of choice.
{10} "In New
Mexico, there is a strong tradition of protecting a child's best interests in a
variety of circumstances."
In re Adoption of Francisco A.,
116 N.M.
708, 713,
866 P.2d 1175, 1180 . It is well-settled law that when the case
involves children, the trial court has broad authority to fashion its rulings
in "best interests of the children."
Id. ;
Rhinehart v.
Nowlin,
111 N.M. 319, 329,
805 P.2d 88, 98 (Ct. App. 1990)
{*695} (applying the standard of "best
interest of the children" to determine stepmother's visitation rights). We
regard the welfare of the children as a "matter of primary concern,
paramount to the wishes of the parents."
Edington v. Edington,
50
N.M. 349, 352,
176 P.2d 915, 917 (1947) (applying this court's policy concerns
regarding the welfare of the children in a custody case). The court's authority
under the "best interest of the children" rule is essentially
equitable:
When dealing with children, the district court is
exercising its equitable powers. ... The touchstone of equity is that it is
flexible; the court of equity has the power of devising its remedy and shaping
it so as to fit the changing circumstances of every case and the complex
relations of all the parties. ... The comprehensiveness of this equitable
jurisdiction is not to be denied or limited in the absence of a clear and valid
legislative command.
In re Adoption of Francisco A., 116 N.M. at 713-14,
866 P.2d at 1180-81 (citations omitted). We therefore decline to limit or
restrict the trial court's inherent authority to protect the interests of the
children only to instances where counsel has violated an ethical or specific
court rule.
{11} Whether Sanders's
representation of the mother would be against the best interests of the child
is a factual determination that must be made on the evidence.
See Rhinehart,
111 N.M. at 329-30, 805 P.2d at 98-99 (affirming district court's determination
that, on the facts before the court, court-mandated visitation by a stepmother
would not be in the best interests of the children due to the high degree of
conflict between stepmother and the father of the children). It is not the duty
of the appellate court to reweigh the evidence before the trial court or
reverse the trial court's decision simply because the appellate court would
have reached a different decision.
See Gardner v. Gholson,
114 N.M. 793,
800,
845 P.2d 1247, 1255 (1992). Instead we defer to the findings of the trial
court because it is the duty of that court to weigh credibility of witnesses
and to resolve conflicting evidence.
Montoya v. Torres,
113 N.M. 105,
109,
823 P.2d 905, 909 (1991). Because the trial court is in a better position
than we are to make the findings of fact, we view that evidence in the light
most favorable to support the court's decision. Therefore, provided substantial
evidence supports the trial court's decision to disqualify Sanders, it will not
be disturbed on appeal.
See Id. ;
Mountain States Constr. Co. v.
Aragon,
98 N.M. 194, 195,
647 P.2d 396, 397 (1982).
{12} The trial court
held a hearing on the disqualification motion on March 20, 1994. The
documentary evidence before the court consisted of the entire record of the
parties' domestic relations case since 1985, and a number of affidavits--one by
Rosenberg, one by Merle, one by Nancy B. Lee, Ph.d, a certified psychologist,
and one by another certified psychologist, Dale Davis Smith, Ph.D. Both of the
psychological experts recommended that the children undergo an assessment by a
mental health care professional. In Dr. Lee's affidavit, she stated that she
was "very concerned that this situation may be causing emotional harm to
the children." She explained the problems as follows:
When a step-parent serves as the mother's attorney,
the family structure is changed. A step-parent must show respect for the
natural parents so as not to place the children in any conflict of loyalties.
By the step-father's adversarial role in battling the natural father and his
attorney, the stepfather is placed in a conflict of interest between his role
as an attorney and his role as a stepfather. With this change in the family
structure, the likelihood of successful cooperation between mother and natural
father is greatly reduced.
The change of the family structure when the stepfather
becomes the attorney for the mother is likely to cause a wide range of problems
for the children. These problems may be expressed in the behavior of the
children, but not always. There is a risk that the problems may be less obvious
and latent, and may not be expressed until later in the children's lives.
Nevertheless the risk to the children can be very real.
{13} {*696} The conflict here has been prolonged.
The best interest of the children is for the stress that the children
experience to be reduced by the parents. Usually most situations settle down
within a couple of years of the divorce. Because this case has been going on so
long, the children may have had to develop coping skills to deal with ongoing
stress. . . .
In her expert opinion, Dr. Lee further stated that:
I believe the present situation where stepfather
represents mother is potentially very unhealthy and destructive to the
children's mental health. There is a real likelihood of harm to each child.
{14} In Rosenberg's
affidavit, he recounts various incidents where the children were upset or
uncomfortable over Sanders's dual roles of stepfather and attorney representing
their mother against their father. Rosenberg also disclosed his own discomfort
with Sanders's representation, claiming that he was uncomfortable and
intimidated by Sanders's presence at family gatherings, extra-curricular
events, school functions, religious functions and social functions. On one
occasion, Rosenberg contends that both he and the children were upset when
Sanders subpoenaed the children's paternal grandfather at one of the children's
Bar Mitzvah. The mother denies the statements made in Rosenberg's affidavit,
claiming that Rosenberg frequently asked the children inappropriate questions
regarding Sanders and his role as her attorney.
{15} The trial court's
ruling disqualifying Sanders was clearly intended to reduce the hostility
between those persons that are close to the children, including the stepfather,
mother, and father. "By diminishing the likelihood of struggle between
parents and others close to the child with whom the parents are at cross-purposes,
the parental preference minimizes the likelihood the child will be exposed to
hostility between those with whom he or she has a strong attachment, which can
cause distress, create loyalty dilemmas and be disruptive of the child's
socialization experiences."
In re Adoption of Francisco A., 116
N.M. at 721, 866 P.2d at 1188 (J. Hartz specially concurring) (quoting
In re
Marriage of Gayden, 229 Cal. App. 3d 1510, 280 Cal. Rptr. 862, 865 (1991)).
{16} Sanders contends
that the trial court abused its discretion in disqualifying him from
representing Merle. We disagree. Under the proper circumstances, the trial
court may disqualify counsel pursuant to the "best interest of the
children" rule. Here, the trial court properly weighed two important
interests--the best interests of the children and the mother's interest in
representation by counsel of her own choosing. In this particular domestic
relations case, there exists a long-term, ongoing conflict between the divorced
parents. There is ample evidence in the record to support the court's decision
that, in view of the continuing conflict between the parties, the continued
representation by Sanders would not be in the best interests of the children.
The representation by the stepfather against the children's natural father is
inherently likely to affect the children.
See Rhinehart, 111 N.M. at
325, 805 P.2d at 94 (recognizing that the stepparents' interaction and
interrelationship with stepchildren may significantly affect the children's
best interest in a custody case). Under the facts herein, the trial court's
ruling was logical and reasonable.
See Komis, 114 N.M. at 663, 845 P.2d
at 757.
{17} Conclusion. For
the foregoing reasons, we affirm the trial court's order disqualifying Sanders.
GENE E. FRANCHINI, Justice
JOSEPH F. BACA, Chief Justice
DAN A. MCKINNON, III, Justice