{ "id": 711419, "name": "Lora Jean JARAMILLO, Petitioner-Appellee, v. Mike R. JARAMILLO, Respondent-Appellant", "name_abbreviation": "Jaramillo v. Jaramillo", "decision_date": "1985-06-13", "docket_number": "No. 8145", "first_page": "145", "last_page": "148", "citations": [ { "type": "official", "cite": "103 N.M. 145" }, { "type": "parallel", "cite": "703 P.2d 922" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "79 N.M. 729", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2746594 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/79/0729-01" ] }, { "cite": "95 N.M. 128", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575594 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0128-01" ] }, { "cite": "79 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738290 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0074-01" ] }, { "cite": "80 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354706 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0088-01" ] }, { "cite": "89 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861744 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0282-01" ] }, { "cite": "90 N.M. 249", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874228 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0249-01" ] }, { "cite": "99 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584619 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0525-01" ] }, { "cite": "91 N.M. 644", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571057 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0644-01" ] }, { "cite": "93 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568753 ], "weight": 4, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0481-01" ] }, { "cite": "70 A.L.R.3d 262", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1976, "opinion_index": 0 }, { "cite": "98 N.M. 788", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582471 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0788-01" ] }, { "cite": "101 N.M. 639", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586444 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/101/0639-01" ] } ], "analysis": { "cardinality": 563, "char_count": 9667, "ocr_confidence": 0.789, "pagerank": { "raw": 1.243135883811886e-07, "percentile": 0.6084308390180277 }, "sha256": "dd197e6b455ee930991d91a39b02ed48fd8dbcaaaa483d75f405f8328399a7c0", "simhash": "1:db8bf30f20e20f41", "word_count": 1571 }, "last_updated": "2023-07-14T15:39:32.898300+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and BIVINS, JJ., concur." ], "parties": [ "Lora Jean JARAMILLO, Petitioner-Appellee, v. Mike R. JARAMILLO, Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Chief Judge.\nThe father, Mike R. Jaramillo, appeals from an order modifying a final divorce decree continuing joint custody of the minor daughter of the parties, but changing primary custody of the child from the father to the mother.\nThe father raises two issues on appeal: (1) whether substantial evidence supports a finding of a material change in circumstances; and (2) whether the court predicated its modification of primary custody on impermissible grounds. Reversed and remanded.\nBACKGROUND\nThe mother obtained a default judgment against the father granting a dissolution of the marriage on March 21, 1983. The judgment specified that the parties were awarded joint custody of their two year-old daughter, Aimee Nicole Jaramillo, \u201creserving to the [father] primary custodial care of the child and reserving to the [mother] * * specific rights of visitation * * *.\u201d The default decree, drafted by the mother\u2019s attorney, also provided that she was required to pay monthly child support to her ex-husband and a portion of all medical and dental costs incurred by the child.\nFollowing the divorce, the father and the minor child lived with a male roommate in a one bedroom apartment. Shortly thereafter, the mother began living with a boyfriend and continued to reside with him until they were married approximately one year later. During the year following the divorce, the mother exercised her child visitation rights under the decree, taking Aimee to live with her on alternate weekends and holidays.\nThe mother repeatedly objected to the living arrangements her ex-husband had chosen for the minor child. The father responded that his limited financial situation necessitated his sharing an apartment with a friend. The father worked and attended college part-time, studying engineering. During the time he was away from home, Aimee was left with a babysitter. Due to his job schedule, the father also had to work two or three evenings a month, during which time Aimee was left with a babysitter.\nWhen the mother sought to visit the child or have her daughter at times, other than those specifically delineated in the decree, the parties usually disagreed. The mother asserted that her ex-husband was uncooperative and that their discussions concerning their child frequently ended with the parties shouting and arguing with each other.\nOn April 6, 1984, just over a year after entry of the divorce decree, the mother filed a motion to modify the final decree. The mother alleged that, since the granting of the initial decree, there had been a material change of circumstances \u201cincluding * * a change of living conditions and circumstances with respect to the child\u2019s habitation * * * a failure of the [father] to properly provide for the basic needs and well being of the child,\u201d and that the mother was now able to care for the child due to her remarriage.\nShortly after the motion to modify was filed, the father moved with the child into a three bedroom mobile home occupied by his sister. The mother testified that she was not given notification of her daughter\u2019s whereabouts and learned of the child\u2019s new residence when her former husband\u2019s deposition was taken at the hearing on the motion to modify. The mother also testified that following the divorce her former husband had not allowed her to participate in any decisions concerning her daughter\u2019s needs, and had refused to provide any basic information concerning the child. The mother testified that her ex-husband demanded that she not communicate with him in any manner except in cases of an emergency.\nFollowing the hearing on the mother\u2019s motion to modify, and the submission of requested findings of fact and conclusions of law by the parties, the trial court rendered its decision and adopted a single finding of fact:\nThat the circumstances of the parties and their minor child pertaining to the custody and support of said minor child have materially changed since the entry of the Final Decree herein.\nBased on the above finding, the court concluded that the final decree previously entered, should be modified so as to change the physical custody of the child to the mother \u201csubject to reasonable rights of visitation in the Respondent,\u201d and prescribing specific times of visitation by the father, including child visitation for a continuous six-week period during each summer. Under the modified order, the father was also ordered to pay $50.00 per month child support.\nMODIFICATION OF CUSTODY\nAt the outset, we are confronted with a formidable obstacle in reviewing the father\u2019s two contentions raised on appeal. The single finding of fact adopted by the trial court fails to specifically identify the basis for the trial court\u2019s order modifying primary physical custody for the child.\nThe legislature, as a matter of public policy, has specified that in any judicial proceeding involving custody of a minor the trial court shall \u201cfirst consider an award of joint custody of the minor if it is in the best interests of the minor.\u201d NMSA 1978, \u00a7 40-4-9.1 (Repl.Pamp.1983). See Strosnider v. Strosnider, 101 N.M. 639, 686 P.2d 981 (Ct.App.1984).\nSection 40-4-9.1(B), further provides:\nAn order for joint custody may be modified or terminated upon the motion of one or both parties or on the court\u2019s own motion if the best interests of the minor require the modification or termination of the order. The court shall state in its order the reasons for modification or termination of the joint custody order if either party opposes the modification or termination order. [Emphasis added.]\nAlthough it is clear that a trial court has wide discretion in awarding or modifying custody of a child incident to a divorce action, Creusere v. Creusere, 98 N.M. 788, 653 P.2d 164 (1982); Strosnider v. Strosnider, the above statute requires that if the court modifies a prior decree establishing joint custody, over objection of the other party, the court must specifically delineate the reasons for the modification or termination. See Annot., 70 A.L.R.3d 262 (1976).\nAn award of joint custody incident to a dissolution of marriage may at times require the trial court to adopt a specific finding indicating which parent, in the child\u2019s best interest and welfare, should be awarded primary physical custody of the child. As stated in the text 2 J. McCahey, Child Custody and Visitation Law & Practice, \u00a7 13.05[5] (1983):\n[C]ourts considering an award of joint custody should distinguish between joint legal and joint physical custody * * *. A joint-custody award need not equally divide a child\u2019s physical custody. The crux of a joint-custody award is that the parents share in the child\u2019s upbringing and the right to jointly make decisions affecting such matters as the child\u2019s health care, education, and religious training * * *. If it is determined that frequent shuttling of the child between homes will be detrimental to the child\u2019s best interests then physical custody may be primarily vested in one parent, with visitation rights awarded to the other.\nBoth the father and mother submitted detailed requested findings of fact and conclusions of law relating to their requests to be awarded the primary physical custody of the child; all of which were refused by the trial court. While generally a trial court is not required to adopt evidentiary findings \u2014 only findings of ultimate fact \u2014 the court must adopt specific findings where a statute so requires. See State v. Doe, 93 N.M. 481, 601 P.2d 451 (Ct.App.1979); State v. Doe, 91 N.M. 644, 578 P.2d 345 (Ct.App.1978). See also Holloway v. New Mexico Office Furniture, 99 N.M. 525, 660 P.2d 615 (Ct.App.1983). Section 40-4-9.1(B) requires the trial court to adopt a specific finding of fact delineating the reason for modification or termination of joint custody where a party opposes such action.\nThe applicable rule was announced in State v. Doe:\nThe court did not make a specific finding____ Inasmuch as the statute requires a specific finding, and none was made, the transfer order is invalid because not entered in compliance with the statute. See State v. Doe, 90 N.M. 249, 561 P.2d 948 (Ct.App.1977). An implicit finding is insufficient when the statute requires a specific finding.\n93 N.M. at 482, 601 P.2d 451. [Emphasis added] [citation omitted.]\nWhen findings adopted by the trial court fail to specifically resolve the basic issues in dispute, the case must be remanded for adoption of proper findings. Michelson v. Michelson, 89 N.M. 282, 551 P.2d 638 (1976); Mora v. Martinez, 80 N.M. 88, 451 P.2d 992 (1969); Walter E. Heller & Co. of California v. Stephens, 79 N.M. 74, 439 P.2d 723 (1968). See also NMSA 1978, Civ.P.R. 52(B)(1)(g) (Repl.Pamp.1980). As a general rule, the trial court must, when requested, find one way or another on a material fact issue. Trigg v. Allemand, 95 N.M. 128, 619 P.2d 573 (Ct.App.1980). See Aguayo v. Village of Chama, 79 N.M. 729, 449 P.2d 331 (1969); State v. Doe.\nThe single finding of fact adopted by the trial court below is not adequate to permit meaningful appellate review of the issues raised by the father on appeal. The cause is remanded for adoption of specific findings as required under Section 40-4-9.-1. The father is awarded costs incident to this appeal.\nIT IS SO ORDERED.\nWOOD and BIVINS, JJ., concur.", "type": "majority", "author": "DONNELLY, Chief Judge." } ], "attorneys": [ "Stephen Bridgforth, Sage, Beal, Bridgforth & Beal, P.C., Las Cruces, for petitioner-appellee.", "Stephen A. Hubert, Martin, Cresswell, Hubert & Hernandez, P.A., Las Cruces, for respondent-appellant." ], "corrections": "", "head_matter": "703 P.2d 922\nLora Jean JARAMILLO, Petitioner-Appellee, v. Mike R. JARAMILLO, Respondent-Appellant.\nNo. 8145.\nCourt of Appeals of New Mexico.\nJune 13, 1985.\nStephen Bridgforth, Sage, Beal, Bridgforth & Beal, P.C., Las Cruces, for petitioner-appellee.\nStephen A. Hubert, Martin, Cresswell, Hubert & Hernandez, P.A., Las Cruces, for respondent-appellant." }, "file_name": "0145-01", "first_page_order": 183, "last_page_order": 186 }