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Hopkins v. Wollaber

Court of Appeals of New Mexico

December 28, 2018

CARRIE BECK HOPKINS f/k/a CARRIE DENISE BECK, Petitioner-Appellant,
v.
ALLAN BENTON WOLLABER, Respondent-Appellee.

          APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY Matthew J. Wilson District Judge.

          Carrie Hopkins Los Alamos, NM Pro Se Appellant

          Cuddy & McCarthy, LLP Aaron J. Wolf Julie S. Rivers Santa Fe, NM for Appellee

          OPINION

          J. MILES HANISEE, JUDGE.

         {¶1} Carrie Beck Hopkins (Mother) appeals pro se the district court's order permitting her ex-husband, Allan Benton Wollaber (Father), to relocate with their children (Son and Daughter) (collectively, Children) to Massachusetts. In addition to raising various due process claims, none of which we find persuasive, Mother challenges what she perceives to be the district court's termination of joint legal custody and grant of sole legal custody to Father.[1]

         {¶2} We conclude that the district court's order did not terminate, but rather modified, joint custody by awarding primary physical custody to Father. We affirm that aspect of the district court's ruling but, concluding that the district court's order is ambiguous as to legal custody, remand with instructions that the district court amend its order to clarify that Mother and Father continue to share joint custody of Children.

         BACKGROUND

         {¶3} Upon their divorce in January 2013, Mother and Father (collectively, Parents) agreed to joint custody and a parenting plan that included a time-share schedule for Son and Daughter, then ages seven and five, respectively. Under the original parenting plan, Mother was generally responsible for Children during the week, and Father was responsible for Children on weekends. Although the parenting plan was amended at various times to modify Parents' timesharing arrangement to alternating weeks of responsibility and address other issues, legal custody of Children remained joint in Mother and Father.

         {¶4} At some point in 2015 Father began exploring a possible relocation to Boston, Massachusetts, but indicated an unwillingness to move without Children. In February 2016 Father formally filed for a "change of custody and to relocate with" Children to Boston, requesting "that he be awarded sole legal custody and that he be permitted to relocate with [Children] prior to the upcoming 2016-2017 school year." The district court referred the parties to Family Court Services for an advisory consultation and expedited the schedule because Father had already obtained new employment in Boston and hoped to relocate with Children by Fall 2016. Upon completion of the consultation process, advisory consultant Gary Lombardo recommended that "[C]hildren primarily reside with Father and relocate with Father to the Boston, Massachusetts area." Lombardo's report also included a recommendation that "Father maintain sole legal custody" of Children.

         {¶5} A two-day hearing was held in July 2016. At the end of the hearing, the district court granted Father's motion to relocate with Children and adopted Lombardo's recommendations in full "without modification." The district court's written order said nothing about legal custody, i.e., whether Parents would retain joint custody or whether joint custody was being terminated and sole custody being awarded to Father. Mother moved for reconsideration and to stay the district court's order. From the district court's denial of both motions, Mother appeals.

         DISCUSSION

         {¶6} Mother makes two arguments on appeal: (1) the district court erred in "terminating the joint custody award[, ]" granting Father sole custody, and permitting Father to relocate Children to Boston; and (2) the district court's "termination of joint custody" deprived Mother of her constitutional right to due process of law. We address each issue in turn.

         I. The District Court's Custody Determination

         {¶7} Mother argues that the district court erred by terminating the joint custody award" and awarding Father sole custody absent a finding that "there was a substantial and material change in circumstances justifying termination of joint custody." Mother contends that a custodial parent's long-distance relocation "is not necessarily" a basis for terminating joint custody because "parents can-and do- continue to share joint custody of their children even when they do not live in the same state." Mother additionally challenges that aspect of the district court's order permitting Father to relocate Children to Boston. She argues that Father failed to meet his burden of demonstrating that it was in Children's best interest to move with Father and that the district court erred by granting Father's motion to relocate without considering the needs and best interests of Children.

         {¶8} We first address whether the district court's ruling indeed effectuated termination of Mother's legal custodial rights or merely modified Parents' existing custody arrangement to accommodate Father's relocation. We then resolve whether the district court erred in modifying custody by awarding primary physical custody to Father.

         Standard of Review

         {¶9} "We review a district court's child custody determination for abuse of discretion." Hough v. Brooks, 2017-NMCA-050, ¶ 18, 399 P.3d 387, cert denied, ___ P.3d ___ (No. S-1-SC-36387, May 4, 2017). To the extent the issues presented involve construction of New Mexico's custody statutes, our review is de novo. See id. ¶¶ 20, 21 (noting that the question of whether New Mexico's joint custody statute, NMSA 1978, §40-4-9.1 (1999), applies to the facts of that case "is an issue of statutory construction that we review de novo").

         A. The District Court Order Modified and Did Not Terminate Joint Custody

         {¶10} We begin by noting that it is not entirely clear whether the district court appreciated, much less intended, that its ruling might, in fact, result in termination of joint custody. The district court's order neither states-from the standpoint of legal custody-that joint custody was being terminated nor expressly grants Father sole custody. Rather, the district court's order adopts "without modification" Lombardo's recommendations, which included that "Father maintain sole legal custody." But that recommendation reflects a critical misunderstanding of the preexisting legal status, i.e., that Father had never, in fact, been awarded "sole legal custody."[2] It is unclear what Lombardo's apparent belief that Father had already been granted sole custody-evinced by his recommendation that Father maintain sole custody-was based upon, or that Lombardo or the district court understood the legal significance of that particular recommendation. But by ...


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