Hoffman v. Hoffman ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JENNIFER T. HOFFMAN,
3 Petitioner-Appellee,
4 v. NO. 32,189
5 MICHAEL HOFFMAN,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
8 ROBERT A. ARAGON, District Judge
9 Jennifer T. Hoffman
10 Gallup, NM
11 Pro se Appellee
12 Law Offices of David R. Jordan, P.C.
13 David R. Jordan
14 Gallup, NM
15 for Appellant
16 MEMORANDUM OPINION
1 CASTILLO, Chief Judge.
2 Appellant challenges the district court order denying his motion to modify the
3 child custody timesharing arrangement. We issued a notice of proposed summary
4 disposition proposing summary affirmance. Appellant has responded with a timely
5 memorandum in opposition that we have duly considered. Remaining unpersuaded,
6 we affirm.
7 Modification of custody arrangements is a matter entrusted to the sound
8 discretion of the district court. See Jeantete v. Jeantete, 111 N.M. 417, 419, 806 P.2d
9 66, 68 (Ct. App. 1990). “Courts may modify a prior custody order whenever
10 circumstances render such change proper and in furtherance of the child’s best
11 interests.” Id. at 418, 806 P.2d at 67; see also NMSA 1978, § 40-4-7(G) (1997)
12 (stating that the district court may modify a custody order whenever just and proper).
13 Modification is proper on a showing of materially changed circumstances that affect
14 the best interests of the child. Jeantete, 111 N.M. at 418, 806 P.2d at 67. “[T]o be a
15 proper exercise of the trial judge’s broad discretion in this area, the record must
16 contain substantial evidence supporting the required finding that the modification
17 furthers the best interests of the child.” Id. at 419, 806 P.2d at 68.
18 As we noted in our notice of proposed summary disposition, Appellant’s
19 docketing statement does not contain a recitation of the evidence and testimony below
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1 in support of the district court’s ruling. In his memorandum in opposition, Appellant
2 disagrees and points out facts that he cited in his docketing statement. [MIO 3-4]
3 Appellant argues that Rule 12-208(D)(3) NMRA only requires summarized facts
4 stated in a concise fashion. [MIO 2] See id. (providing that docketing statements
5 must contain “a concise, accurate statement of the case summarizing all facts material
6 to a consideration of the issues presented”). We understand that Appellant recited
7 evidence and testimony in his docketing statement that did not support the district
8 court’s ruling. However, “[i]n this court’s calendaring system, it is important to have
9 all the facts, including those that support what the trial court did.” Loverin v. Debusk,
10 114 N.M. 1, 1, 833 P.2d 1182, 1182 (Ct. App. 1992); see also Thornton v. Gamble,
11 101 N.M. 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (“[T]he docketing statement
12 must state all facts material to the issues . . . [including] evidence [that] supports the
13 [district] court’s findings.”).
14 We also noted in our notice of proposed disposition that Appellant did not
15 appear to challenge the district court’s findings of fact. Appellant states that this is
16 incorrect, but does not indicate which, if any, of the district court’s factual findings
17 are error. [MIO 2] See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754,
18 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the
19 burden is on the party opposing the proposed disposition to clearly point out errors in
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1 fact or law.”). Appellant argues that, unless a case is assigned to the general calendar
2 and he files a brief pursuant to Rule 12-213 NMRA, he is not required to make a
3 specific challenge to the district court’s factual findings. [MIO 4-5] We disagree.
4 See State ex rel. State Highway & Transp. Dep’t v. City of Sunland Park, 2000-
5 NMCA-044, ¶ 15, 129 N.M. 151, 3 P.3d 128 (noting that the docketing statement
6 takes the place of full briefing when a case is decided on the Court’s summary
7 calendar).
8 Appellant next argues that the district court and this Court failed to consider the
9 best interests of the children. [MIO 5-6] We disagree. The district court’s findings
10 indicate that the current time sharing arrangement had been in place for the past six
11 years and that the children were used to it. [RP 231] Matthew’s counselor testified
12 that he needed stability and routine. [RP 140, 235] Additionally, there was a
13 complete lack of testimony that either Ryann’s or Alyssa’s best interests would be
14 served by a change from the current timesharing arrangement. [RP 235] See
15 Schuermann v. Schuermann, 94 N.M. 81, 82-83, 607 P.2d 619, 620-621 (1980)
16 (stating that there is a strong presumption in favor of the original custody
17 arrangement, and the party seeking to alter the status quo bears the burden of proving
18 a change in circumstances). Appellant again points to testimony that both parents
19 originally agreed that equal timesharing was in the best interests of the children, and
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1 that there was expert testimony to support that. [MIO 5-7] However, as we pointed
2 out in the notice of proposed disposition, the district court appears to have found this
3 unpersuasive, as it was supported only by a general statement that any child would
4 benefit from equal timesharing with parents, which was not particularized to
5 Appellant’s children or their circumstances. [RP 140, 233] See, e.g., Grant v.
6 Cumiford, 2005-NMCA-058, ¶¶ 14-20, 137 N.M. 485, 112 P.3d 1142 (illustrating that
7 the courts are not required to adopt expert recommendations on custodial
8 arrangements). Appellant also argues that there was no evidence that the current
9 timesharing arrangement was in the best interests of the children. But see Newhouse
10 v. Chavez, 108 N.M. 319, 324, 772 P.2d 353, 358 (Ct. App. 1988) (stating that the
11 burden is on the party seeking modification to overcome presumption in favor of
12 reasonableness of original decree). For these reasons, we reject Appellant’s assertion
13 that the district court failed to consider the best interests of the children in denying his
14 petition to modify the custody arrangement.
15 Appellant next argues that the district court erred in determining that he failed
16 to establish a material change in circumstances. [DS 6-7] Appellant argued below
17 that he now has a different work schedule that can accommodate the time sharing
18 arrangement that he seeks, and that he and Mother originally intended to have equal
19 time sharing with the children. [DS 1-2; RP 121-123] However, the district court
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1 found that although Appellant’s work schedule changed in 2009, Appellant did not
2 seek a modification in the time sharing arrangement on that basis until August 2011,
3 three weeks after the court entered an order increasing his child support. [RP 236]
4 In his memorandum in opposition, Appellant questions the relevance of the timing of
5 his petition to modify the timesharing arrangement. [MIO 6-7] The timing of
6 Appellant’s petition appears to have been relevant to the district court’s assessment
7 of the materiality of any change in circumstances occasioned by Appellant’s work
8 schedule changing two years earlier. [RP 232-233] See Jeantete, 111 N.M. at 418,
9 806 P.2d at 67 (stating that modification is proper on a showing of materially changed
10 circumstances that affect the best interests of the child). We find no abuse of
11 discretion in the district court’s determination that this did not constitute a material
12 change in circumstances.
13 Finally, Appellant continues to argue that the district court did not properly
14 consider evidence that Matthew was showing signs of emotional distress. [MIO 7]
15 See generally Normand ex rel. Normand v. Ray, 109 N.M. 403, 408, 785 P.2d 743,
16 748 (1990) (“In determining the best interests of the children in child custody
17 proceedings . . . [t]he court must evaluate . . . how well the child is developing
18 physically, mentally and emotionally.”). It appears that at the hearing, both parents
19 testified that Matthew had experienced anxiety over returning to Mother’s home
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1 following a three-day period spent with Appellant during spring break in 2011 and
2 that he had experienced anxiety over the switch from public school to a private school.
3 [RP 232] There was testimony from Matthew’s counselor that he was afraid of the
4 physical structure of Mother’s home. [RP 140, 232] However, Matthew’s counselor
5 also testified that his anxiety problems were being addressed by the parents and that
6 he had adjusted to the change in schools. Matthew was doing well at the current
7 school where his siblings attended, and he was making friends. [RP 232]
8 Additionally, as noted before, Matthew’s counselor testified that he needed stability
9 in his routine. The district court found that Matthew was doing well with the current
10 timesharing plan. [RP 235] Under these circumstances, we see no basis to determine
11 that the district court abused its discretion in determining that the earlier anxiety
12 experienced by Matthew was insufficient to establish a basis for modification of the
13 custody arrangement. [RP 236]
14 For these reasons, we affirm.
15 IT IS SO ORDERED.
16 __________________________________
17 CELIA FOY CASTILLO, Chief Judge
18 WE CONCUR:
19 __________________________________
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1 LINDA M. VANZI, Judge
2 __________________________________
3 J. MILES HANISEE, Judge
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