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Hough v. Brooks

Court of Appeals of New Mexico

March 2, 2017

ROY NEAL HOUGH, Petitioner-Appellee,
v.
SUMMER LYNNE BROOKS, Respondent-Appellant.

         APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY James Waylon Counts, District Judge

          Freda Howard McSwane, P.C. Freda Howard McSwane Ruidoso, NM for Appellee.

          William N. Griffin Ruidoso, NM for Appellant.

          OPINION

          LINDA M. VANZI, Chief Judge

         {1} Summer Lynne Brooks (Mother) and her estranged husband, Roy Neal Hough (Father), entered into a stipulated interim order that allowed Mother to relocate with their four children from Ruidoso, New Mexico to Phoenix, Arizona. Approximately eight months later, the district court ordered that the children move back to Ruidoso to live with Father during the school year. On appeal, Mother argues that the district court erred by (1) drastically changing the primary custodial arrangement without first finding that a substantial and material change in circumstances had occurred, and (2) not making specific findings that the change was in the children's best interests. We hold that the district court abused its discretion by not finding "a substantial and material change in circumstances" before changing the existing custody arrangement, as required by the New Mexico Joint Custody Statute, NMSA 1978, § 40-4-9.1(A) (1999). We further hold that the district court abused its discretion by not conducting a best interests analysis and by failing to consider any of the statutorily mandated factors, under NMSA 1978, Section 40-4-9(A) (1977) and Section 40-4-9.1(B), and that the district court's custody determination was not supported by substantial evidence. Accordingly, we reverse.

         BACKGROUND

         {2} Although their marriage certificate was never filed, Mother and Father married in October 1999 and lived together with their four children in their family residence in Ruidoso. Mother is a school teacher, and Father is a wild-land firefighter employed by the U.S. Forest Service.

         {3} The couple's relationship deteriorated after a March 2012 incident in which Father kicked his eldest daughter, A.H., and broke her leg. Father was charged with child abuse and bribery of a witness for encouraging A.H. to lie about what had happened. Father pleaded no contest and received a conditional discharge. He was placed on three years of probation and was required to undergo counseling. The probation agreement stated that Father would "not associate with any person identified by [his p]robation/[p]arole [o]fficer as being detrimental to [his p]robation supervision, " including any victim or witness of his crimes. Father admitted that A.H. was a victim of his crimes. After the charges were filed, Children, Youth and Families Department (CYFD) and Father's probation officer requested that Father leave the family residence for six months, after which he had limited contact with the children. Although Father did have phone calls with the children, they were intermittent as a result of his job, which often took him out of cell phone service.

         {4} Father did not see or talk to A.H. for at least two years after the incident. A.H. is a special needs child, who had difficulties in school after the child abuse episode and was removed from school by Mother to be home-schooled for a period of time. A.H. had been evaluated after the child abuse incident and was diagnosed with childhood schizophrenia.

         {5} In March 2014, Father filed a petition to determine paternity, custody, visitation, and child support (the petition). Specifically, Father sought joint legal and physical custody of the children and an order for child support pursuant to the New Mexico Child Support Guidelines. Mother did not dispute paternity and agreed that Father should be granted legal or physical custody but stated that he should not be granted unsupervised visitation until he completed his probation and counseling. Mother also did not deny that child support should be awarded.

         {6} Two weeks after Father filed the petition and before Mother had an opportunity to file her answer, Father's parents (Grandparents) filed a motion to intervene. The motion sought, among other things, to allow Grandparents, who were residents of Tennessee, to assist in making decisions about the children because Father was "unable to properly care for the minor children alone based on his employment." Mother objected to the motion to intervene arguing lack of jurisdiction and other legal grounds. The district court ultimately denied Grandparents' motion in October 2014.

         {7} Father and Mother entered into a joint stipulated custody, visitation, and support agreement and, on June 3, 2014, the district court entered a stipulated interim order reflecting the parties' agreement. The stipulated interim order provided, in relevant part:

2. [Mother], upon providing proof of employment [for a teaching position] in Phoenix, Arizona, shall be allowed to relocate to Phoenix, Arizona with the minor children.
3. [Father] shall have a two[-]week period of responsibility with the minor children for two . . . weeks after the end of the 2013-2014 school year in Ruidoso, New Mexico. Said period of responsibility shall take place at the children's residence[.] . . . Such supervised visitation shall be from July 6, 2014 through July 20, 2014.
4. [Father's] parents shall supervise this visitation by remaining at the residence with [Father] and the minor children.
5. After the minor children have relocated to Phoenix, Arizona, [Father] shall be allowed nightly phone calls with the minor children and Skype visits with the minor children at least two . . . times per week.
6. Until further [o]rder of this [c]ourt, [Father] shall pay child support to [Mother] in the amount of $949.81.

         {8} In the summer of 2014, Mother obtained a teaching position at a private school in Phoenix, Arizona, and pursuant to the stipulated interim order, relocated with the children to Phoenix. Three of the children attended the private school as a benefit of Mother's employment, and A.H. attended a special school.

         {9} Shortly thereafter, Father filed a motion to show cause, alleging that he had "placed a phone call every night" to the children since July 20, 2014, as permitted by the stipulated interim order, but had not been able to reach the children. Mother denied that she missed multiple phone calls from Father, and filed a countermotion, alleging that Father "has underpaid, or failed to pay, child support each month since June[] 2014." According to Father, he paid utility bills on the family residence that Mother had left unpaid and had given Mother an extra child support payment in March 2014. The record does not indicate whether the district court ruled on this matter.

         {10} Six months after the stipulated interim order was entered, the district court held a child custody hearing. Both Father and Mother testified. Father said that he was in favor of the move when it occurred and agreed that there were ample doctors in Arizona that were better suited to address A.H.'s needs. In addition, Father knew that one of his sons had struggled in Ruidoso public schools because of the son's speech difficulties. Nevertheless, Father no longer wanted the children to reside in Arizona. He admitted that he "did not keep up with any of the kids while they were in school" in Ruidoso and further acknowledged that he had no reason to believe the children were not doing well in Arizona.

         {11} Mother testified that the children were happy and doing well in the Phoenix private school, and the child with speech issues received specialized support for his disability. Furthermore, Mother said that A.H., who had struggled after the 2012 incident with Father, was doing better in Phoenix and was slated to get special treatment where she would attend support sessions and where a psychiatrist and case manager would visit her in the home.

         {12} Testimony at the hearing established that, prior to the time he was required to leave the family home, Father had undertaken numerous remodeling projects in the Ruidoso residence that remained unfinished when he left. Father admitted that while he lived there, he had punched holes in the walls. According to Mother, she had difficulties with mice coming in through one of the areas involving Father's unfinished projects. Mother had neither the money nor the skills to make repairs or finish the projects once Father was out of the house, nor did she allow Father to come back to make repairs. Mother stated that she did not want Father in the home because he was aggressive and could not control his temper. Moreover, having Father come into the home to make repairs never panned out because of Father's work schedule and because A.H. was in the home. The result was that, at the time of Father's July 2014 visitation period, which took place in the family's Ruidoso residence, the condition of the home was "horrible." According to Father, the house smelled of urine, was filthy, and there were mice feces throughout the premises.

         {13} With respect to Grandparents, prior to the two-week visitation period in July 2014, it had been seven years since Grandparents had interacted with any of the children, and they had never met the two younger children. The decision to cut off contact between Grandparents and the children had been a mutual decision between Father and Mother. Notwithstanding that they did not know the children, Father testified that Grandparents would move to New Mexico from Tennessee to help him with the children if he was granted custody during the school year. Father's mother also testified to the same effect. There is no evidence in the record indicating whether Grandparents actually moved to New Mexico.

         {14} At a December 2014 hearing, the district court entered an order requiring that the children spend Christmas break with Father. The exchange was to take place in Lordsburg, New Mexico on December 20, 2014, and the children were to be returned to Mother in Lordsburg on January 3, 2015. A.H. did not arrive in Lordsburg as required by the order. Father filed a motion to show cause, alleging that Mother had refused to bring A.H. for Christmas break and that, therefore, Mother should be held in contempt. Mother responded that she "did everything within her power to compel [A.H.] to go" and that A.H. herself had refused to go to Lordsburg for the holiday exchange. Mother reiterated that A.H. had been "gravely injured" by Father, that she had been diagnosed with schizophrenia and posttraumatic stress disorder (PTSD), that Father was under a probation order not to have contact with A.H., and that A.H. wanted "an audience with the [j]udge in chambers to express her desires [regarding] visitation with [Father]." Moreover, A.H.'s counselor was developing a treatment plan, recommending that A.H. and Father develop their relationship in "calculated stages."

         {15} At a show cause hearing on March 30, 2015, A.H. testified that she did not want to go to Lordsburg because Father's physically abusive behavior made her feel unsafe. She also said that one of her counselor's had developed a plan for her in which she would establish a relationship with Father at her own pace. A.H. stated that the day of the holiday exchange, Mother tried to make her go, but she had locked herself in her room and refused to come out. Notwithstanding A.H.'s testimony and that it had previously required visitation with the children to be supervised, the district court held Mother in contempt, stating that she did not do "what was necessary to carry out the [district court's] order" and ordered Mother to pay Father's attorney fees.

         {16} On March 6, 2015, the district court memorialized its January 30, 2015 minute order in a court-ordered parenting plan (the parenting plan). The parenting plan granted joint legal custody to Father and Mother of all the minor children, with Father being the primary physical custodian. Beginning with the 2015-2016 school year, the children would reside with Father in Ruidoso "from one week before the start of school through one week following the end of the school year." This order invariably conflicted with Father's probationary status as it related to A.H., as his probation was not scheduled to end until December 2015. The parenting plan provided that the "children shall spend the summer break with [Mother] commencing one week after the end of . . . school through one week before the beginning of school." Although the district court stated that it was in the best interests of the children to have "a significant relationship with . . . [F]ather and [Grandparents, ]" the parenting plan does not provide a best interests analysis. Nor does it address any statutory factors as a basis for the custody determination. Instead, the parenting plan simply stated that the children's relationship with Father "cannot be fostered if the children only see [him] in the summer because his work requires him to be away from home for significant periods of time in the summer due to fire season." And, "[Mother] can best maintain her relationship with the children during the summer months since she is a teacher and will have summers off." The parenting plan provided no guidance for transition from Mother's care to Father, nor did it address any particulars with respect to A.H.

         {17} In sum for ease of reference, the pertinent and material events and dates set out above started in March 2012. Father had limited contact with the children from about March 2012 until about at least March 2014 when he filed his petition and likely until June 3 2014, which would have been over two years. Mother relocated to Phoenix with the children around mid-summer 2014, pursuant to the stipulated interim order. Father had a two-week visitation with the children, except A.H., in July 2014. In December 2014, following a September motion for an order to show cause, the court ordered visitation with Father over Christmas break in December 2014. There was a January 30, 2015 minute-ordered parenting plan, memorialized on ...


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