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Tomlinson v. Weatherford

Court of Appeals of New Mexico

April 19, 2017

CARRIE J. TOMLINSON, Petitioner-Appellant,
v.
DANA M. WEATHERFORD, Respondent-Appellee.

         APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY Henry R. Quintero, District Judge

          Caren I. Friedman Legal Group, P.C. Jessica C. Roth for Appellant

          Lopez, Dietzel, Perkins, & Wallace, P.C. Cathryn L. Wallace for Appellee

          OPINION

          M. MONICA ZAMORA, Judge

         {1} In this domestic relations case, the level of animosity between the parties, their deliberate actions and inactions, and the delays in the judicial system have complicated the situation to the point that the Child (R.W.) has been lost in the process. Petitioner Carrie Tomlinson (Petitioner) appeals the district court's decision to decline jurisdiction over her action to determine parentage, child custody, and timesharing with regard to a child born to her former partner, Dana Weatherford (Respondent). Petitioner argues that the district court applied the incorrect standard in determining jurisdiction and challenges several of the district court's findings. Petitioner also argues that the district court violated her right to due process by failing to address her requests for interim visitation and that the district court's ruling violated her right to equal protection.

         {2} While this appeal was pending, Petitioner filed a motion for review of the district court's action on an application for stay and for injunction pending appeal as well as a petition for writ of error, or in the alternative, motion for review. Petitioner requested this Court to review the district court's order denying her motion to stay the enforcement of its judgment pending appeal and order visitation and communication between herself and R.W. She also requested the appointment of a guardian ad litem. On September 9, 2015, this Court issued an order directing the district court to hold a hearing on Petitioner's motion and the issue of whether to order visitation and communication between Petitioner and R.W. within twenty-one days of the order. Alternatively, if the district court decided to appoint a guardian ad litem (GAL), the district court was required to determine an expedited time frame for the GAL to complete his or her work and then hold a hearing to address the visitation and communication issues. It was not until December 3, 2015, that the district court held the hearing to appoint the GAL. He identified and appointed the GAL without input from the parties. Petitioner alleges that the GAL relied on a "sham" bonding study when making the recommendation with respect to her request for visitation and communication with R.W. According to Petitioner, the district court accepted the GAL's recommendation, even though the study considered only the degree of bonding between Respondent and R.W., and Petitioner was not given the opportunity to examine the GAL about her recommendations or any bias she might have. For the reasons that follow, we reverse and remand for further proceedings.

         BACKGROUND

         {3} Petitioner and Respondent were in a domestic relationship and decided to have and raise a child together. Respondent was artificially inseminated by an anonymous donor and gave birth to R.W., in Oklahoma in April 2007. In June 2007 an Oklahoma district court appointed Petitioner and Respondent co-guardians of R.W., pursuant to their joint request. In September 2008, the couple and R.W. moved from Oklahoma to New Mexico. From the time of R.W.'s birth until May 2009, she lived with Petitioner and Respondent. In 2009 Petitioner left the home but continued to share parenting responsibilities with Respondent until September 2012, when Respondent cut off contact between R.W. and Petitioner.

         {4} Subsequently, Respondent sought an order of protection from domestic violence based on alleged harassment by Petitioner. The district court determined that no domestic violence had occurred. However, the parties stipulated to mutual restraint. On May 20, 2013, Petitioner initiated this action to establish parentage and determine custody and timesharing with regard to R.W.

         {5} Shortly after the petition was filed, Respondent left the state with R.W. Respondent could not be located and was not served with process before she left the state. By July 2013 Respondent established residency in Oklahoma. In August 2013 Respondent filed an objection to the district court's jurisdiction over the case.

         {6} In December 2013 the district court held a hearing on the issue of jurisdiction. During that hearing, Respondent informed the district court that a hearing was scheduled the same month in Oklahoma pertaining to the order granting co-guardianship that was entered in Oklahoma in 2007.

         {7} Apparently, Respondent had filed a change of venue in the guardianship case. Both Petitioner and the district court were under the impression that Respondent intended to have the guardianship revoked. The district court conferred with the Oklahoma court, then stayed proceedings in the present case, pending a final decision in the Oklahoma guardianship. However, after the stay in this case was issued, Respondent did not pursue revocation of the guardianship in Oklahoma. Approximately eleven months after the stay in this case was issued, the Oklahoma court terminated the guardianship over Petitioner's objection.

         {8} After the termination of the guardianship, Petitioner again moved to determine parentage and timesharing in this case. Respondent once again objected to the district court's jurisdiction, arguing that New Mexico was an inconvenient forum and that it would not be in the best interests of R.W. for the district court to exercise its jurisdiction over Petitioner's claim. The district court determined that it was in the best interests of R.W. that "any disputes be brought and heard in Oklahoma."

         DISCUSSION

         {9} On appeal, Petitioner argues that (1) New Mexico has jurisdiction over the action pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (the Act), NMSA 1978, §§ 40-10A-101 to -403 (2001); (2) the district court erred in making findings on the merits of her parentage and child custody claim because the sole issue before the court was subject matter jurisdiction; (3) the district court denied her the opportunity to maintain her relationship with R.W. and violated due process by failing to address her repeated requests for interim visitation; and (4) the district court's rulings violated equal protection. We will address these arguments in turn. We first consider the question of jurisdiction under the Act.

         The District Court Has ...


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