{ "id": 1598993, "name": "Thomas MEIER, Petitioner-Appellee, v. Cheryl DAVIGNON, Respondent-Appellant", "name_abbreviation": "Meier v. Davignon", "decision_date": "1987-02-24", "docket_number": "No. 9703", "first_page": "567", "last_page": "571", "citations": [ { "type": "official", "cite": "105 N.M. 567" }, { "type": "parallel", "cite": "734 P.2d 807" } ], "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": "96 A.L.R.3d 968", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "opinion_index": 0 }, { "cite": "284 N.W.2d 804", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1979, "opinion_index": 0 }, { "cite": "92 Mich.App. 336", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2175009 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/mich-app/92/0336-01" ] }, { "cite": "100 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0773-01" ] }, { "cite": "95 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575492 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/95/0517-01" ] }, { "cite": "291 Or. 412", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2169587 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/or/291/0412-01" ] }, { "cite": "49 Or.App. 301", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2076987 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/or-app/49/0301-01" ] }, { "cite": "430 N.Y.S.2d 201", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "104 Misc.2d 930", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1943639 ], "opinion_index": 0, "case_paths": [ "/misc2d/104/0930-01" ] }, { "cite": "77 L.Ed.2d 1390", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "103 S.Ct. 3540", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1209", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221600, 6221346, 6221831, 6222728, 6222314, 6220510, 6220814, 6220271, 6219987, 6222070, 6219709, 6221086 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1209-08", "/us/463/1209-07", "/us/463/1209-09", "/us/463/1209-12", "/us/463/1209-11", "/us/463/1209-04", "/us/463/1209-05", "/us/463/1209-03", "/us/463/1209-02", "/us/463/1209-10", "/us/463/1209-01", "/us/463/1209-06" ] }, { "cite": "99 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584632 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0335-01" ] }, { "cite": "93 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0648-01" ] }, { "cite": "104 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594887 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0780-01" ] }, { "cite": "105 N.M. 373", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598965 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0373-01" ] }, { "cite": "104 N.M. 255", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594961 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/104/0255-01" ] } ], "analysis": { "cardinality": 625, "char_count": 11961, "ocr_confidence": 0.773, "pagerank": { "raw": 8.803395521780664e-08, "percentile": 0.49641253215921083 }, "sha256": "58056607b554f742b2b1086ca11e6d6251c08ec14f6f3768b256e3eb95c2d05d", "simhash": "1:1cb130d6f29ec2d5", "word_count": 1947 }, "last_updated": "2023-07-14T20:20:30.820213+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVENS and APODACA, JJ., concur." ], "parties": [ "Thomas MEIER, Petitioner-Appellee, v. Cheryl DAVIGNON, Respondent-Appellant." ], "opinions": [ { "text": "OPINION\nMINZNER, Judge.\nThis appeal involves a child custody dispute under the New Mexico Child Custody Jurisdiction Act (CCJA). See NMSA 1978, \u00a7\u00a7 40-10-1 to -24 (Repl.1986). The mother, a resident of Oklahoma, appeals from the trial court\u2019s ruling transferring physical custody of the parties\u2019 only child to the father, a resident of New Mexico. Two issues are presented: (1) whether the New Mexico court had jurisdiction under the CCJA; and (2) if the court had jurisdiction, whether it should have declined jurisdiction on the ground that New Mexico was an inconvenient forum for a custody determination. Our calendaring notice proposed summary affirmance. The parties have responded with memoranda in support and in opposition to our proposed disposition. We affirm.\nFACTS.\nThe child was bom in 1980 while the parties were living together. In May 1982 in Gallup, New Mexico, the parties married. Seven months later the father filed for divorce and was granted temporary custody of the child during the pendency of the divorce proceeding. A final divorce decree was entered by the New Mexico court on January 21, 1983. The decree incorporated a stipulation between the parties; it provided for joint legal custody of the child and joint physical custody alternating between the parties on a weekly basis. Custody was subsequently modified on three occasions by the New Mexico court, but notably, each modification order retained the feature of joint physical custody on an alternating basis.\nThe mother moved to Oklahoma in June 1984. Father petitioned for a review of custody, alleging that the mother moved in order to frustrate his relationship with the child. Following a hearing, at which the mother appeared, the New Mexico court modified custody so that each parent was granted custody of the child for alternating five-month periods of time until the child entered school in September 1986. The order further provided that after the child entered school, the mother would have custody of the child through the school year and the father would have custody during the summer months. In addition, the father was granted visitation for one week at Christmas and for spring school vacations. A subsequent modification provided that the noncustodial parent would pay the other parent child support during their respective periods of physical custody.\nThe child spent the summer of 1986 with the father and then returned to Oklahoma to enter school. Shortly thereafter, in October 1986, the father filed a petition in New Mexico seeking a transfer of custody. The motion alleged, inter alia, that (1) the mother was deliberately intending to \u201cultimately deprive him of his son;\u201d (2) the mother, without notifying the father or his attorney, obtained an order from an Oklahoma court changing the child\u2019s surname to \u201cDavignon,\u201d which is the mother\u2019s maiden name; and (3) the best interests of the child required that physical custody be granted to the father. Attached to the motion was an order issued by an Oklahoma court changing the child\u2019s surname to \u201cDavignon, and a letter written by the mother in which she claimed to be a \u201csingle, unwed mother\u201d and the \u201csole supporting parent\u201d of the child.\nAt the subsequent hearing, the mother entered a special appearance through her attorney solely to contest the court\u2019s jurisdiction under the New Mexico CCJA. The court rejected the jurisdictional challenge and recessed the hearing on the merits until a later date so that the mother could be present. She chose not to appear or to present evidence. Following the hearing, the court entered an order stating the basis of its jurisdiction and finding that it was in the best interest of the child that custody be transferred to the father.\nJURISDICTION.\nIf a court of one state has made a custody decree, under the UCCJA other states are required to defer to the jurisdiction of the original court as long as that court continues to have jurisdiction under one or more of the jurisdictional prerequisites set forth in the Act. See \u00a7 40-10-15(A); State ex rel. Department of Human Services v. Avinger, 104 N.M. 255, 720 P.2d 290 (1986). Indeed, the concept of continuing jurisdiction in the original court is \u201ccentral to the UCCJA scheme of discouraging resort to another state to get a new custody decree superseding an existing one.\u201d See R. Crouch, Interstate Custody Litigation: A Guide to Use and Court Interpretation of the Uniform Child Custody Jurisdiction Act (BNA 1981) at 13. In this case, New Mexico is the court of original jurisdiction.\nThe trial court found it had jurisdiction on the basis of Section 40-10-4(A)(2), which employs the \u201cbest interest of the child\u201d standard. Jurisdiction exists under that standard when it is in the best interest of the child that a New Mexico court assume jurisdiction, provided:\n(a) the child and his parents, or the child and at least one contestant, have a significant connection with New Mexico; and\n(b) there is available in New Mexico substantial evidence concerning the child\u2019s present or future care, protection, training and personal relationships * * *.\nIn determining the child\u2019s best interest, the court made the following unchallenged findings of fact:\n24. There has been a change of circumstances which * * * shall be deemed to include but not be limited to [the mother\u2019s] attempted and purported name change of the child, the misstatements in connection therewith, the age of the child and [the mother\u2019s] actions in effectively thwarting attempts of the [father] to talk to his son on the telephone.\n25. The actions of the [mother] * * * in pursuing the change of name of her son without notification to the [father] herein, together with the misstatements made in connection therewith indicates an intent on the part of [the mother] to deprive the child of the association, love, influence and control of his father and to deprive the father * * * of the child\u2019s association, love, rearing, education and name right; such actions are not in the best interests of the child.\nIn a recent case, Alfieri v. Alfieri, 105 N.M. 373,733 P.2d 4 (Ct.App.1987), this court affirmed the authority of trial courts to modify custody based on a custodial parent\u2019s actions in undermining the noncustodial parent\u2019s relationship with the child. By analogous reasoning, we conclude that trial courts may rely on such actions in ruling that an exercise of jurisdiction under Section 40-10-4(A)(2) is in the best interest of the child.\nThe mother claims the court erred in finding that (1) the child had \u201csignificant contacts\u201d with New Mexico; and (2) there is available in New Mexico substantial evidence concerning the child\u2019s present and future care, training, and relationships. We disagree. The child has resided in New Mexico for at least one-third of his life and has been in his father\u2019s physical custody for lengthy periods since moving from the state in 1984. In light of these facts, we must disagree with the mother\u2019s characterization of the case as one in which \u201cthe facts are old, memories faded and evidence almost nonexistent.\u201d Cf. Trask v. Trask, 104 N.M. 780, 727 P.2d 88 (Ct.App.1986).\nThe mother also cites various facts in support of her contention that the child has more \u201csignificant contacts\u201d with the state of Oklahoma than with New Mexico. Because respondent chose not to present evidence at trial, she has relied on the statements of her counsel, which cannot be considered on appeal. See Phillips v. Allstate Insurance Co., 93 N.M. 648, 603 P.2d 1105 (Ct.App.1979). Respondent has also filed with this court a partial transcript of child custody proceedings commenced by respondent in an Oklahoma district court. The partial transcript covers a motion hearing that occurred after the New Mexico court had entered its modification order. Respondent would have this court rely on evidence presented in the subsequent Oklahoma proceeding to reverse the New Mexico district court. This we cannot do. Our review is limited to matters that are of record in the cause before us. See, e.g., Strickland v. Roosevelt County Rural Electric Cooperative, 99 N.M. 335, 657 P.2d 1184 (Ct.App.1982), cert. denied, 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390 (1983). A determination of jurisdiction under Section 40-10-4 involves a mixed question of law and fact, and an evidentiary record is necessary for a review of the factual claims in this appeal.\nEven if respondent\u2019s belated factual claims could be considered, we agree with other courts that the UCCJA does not call for a balancing of contacts or evidence with jurisdiction going to the state with the greater volume of evidence or contacts. See, e.g., Potter v. Potter, 104 Misc.2d 930, 430 N.Y.S.2d 201 (Fam.Ct.1980). Rather, under the facts of this case it was enough that there remained sufficient significant contacts with New Mexico to preserve the continuing jurisdiction of the original forum. See In re Marriage of Cope, 49 Or.App. 301, 619 P.2d 883 (1980), aff'd on other grounds, 291 Or. 412, 631 P.2d 781 (1981).\nThe mother\u2019s final contention under this point is directed at the court\u2019s finding that the father is a permanent resident of New Mexico. She contests the finding by claiming that he lived in Window Rock, Arizona for several months in 1986. Assuming this fact was established at trial, we disagree that it is sufficient to defeat the trial court\u2019s finding of permanent residency. \u201cDomicile\u201d within the state does not require continuous physical presence, but rather, physical presence in the state at some time in the past and concurrent intention to make the state one\u2019s home. Hagan v. Hardwick, 95 N.M. 517, 624 P.2d 26 (1981). The trial court found that the father intends to remain a permanent resident of New Mexico, and the mother does not contest this finding. Under these circumstances, the trial court\u2019s finding as to permanent residency is supported by substantial evidence. See id.\nFORUM NON CONVENIENS.\nThe mother also claims the trial court should have declined jurisdiction under a proper application of the doctrine of forum non conveniens. See \u00a7 40-10-8. This section provides that a court may decline to exercise jurisdiction if it finds that a court of another state is a more appropriate forum. The court\u2019s determination is discretionary, see Crouch, Interstate Custody Litigation, supra, at 19, and will not be reversed unless the decision is contrary to the reason, logic, evidence, and equities in the case. Hester v. Hester, 100 N.M. 773, 676 P.2d 1338 (Ct.App.1984).\nHere, the trial judge who refused to decline jurisdiction was the same trial judge who had heard and granted the original divorce and who had heard and ruled on the various ensuing disputes concerning custody and visitation. As a result, the trial judge was and had been familiar with the entire matter since the parties\u2019 divorce four years earlier. In making its determination, the court considered that no custody proceeding had been commenced in Oklahoma at the time father\u2019s petition was filed in New Mexico. The trial court also properly considered that the mother had previously invoked the jurisdiction of the New Mexico court even after moving to Oklahoma. On these facts we are persuaded that the court properly exercised its discretion under Section 40-10-8. See Breneman v. Breneman, 92 Mich.App. 336, 284 N.W.2d 804 (1979); see generally Annot., 96 A.L.R.3d 968 (1979).\nCONCLUSION.\nWe conclude that the trial court had jurisdiction and properly exercised that jurisdiction. There being no other claim that the order modifying custody is not proper, it should be affirmed.\nIT IS SO ORDERED.\nBIVENS and APODACA, JJ., concur.", "type": "majority", "author": "MINZNER, Judge." } ], "attorneys": [ "Lowell E. McKim, McKim, Head and Ion-ta, P.C., Gallup, for petitioner-appellee.", "Joseph L. Rich, Schuelke & Rich, Gallup, for respondent-appellant." ], "corrections": "", "head_matter": "734 P.2d 807\nThomas MEIER, Petitioner-Appellee, v. Cheryl DAVIGNON, Respondent-Appellant.\nNo. 9703.\nCourt of Appeals of New Mexico.\nFeb. 24, 1987.\nLowell E. McKim, McKim, Head and Ion-ta, P.C., Gallup, for petitioner-appellee.\nJoseph L. Rich, Schuelke & Rich, Gallup, for respondent-appellant." }, "file_name": "0567-01", "first_page_order": 607, "last_page_order": 611 }