{ "id": 322300, "name": "Merle Applebaum SANDERS, Petitioner-Respondent, v. Michael G. ROSENBERG, Respondent-Petitioner", "name_abbreviation": "Sanders v. Rosenberg", "decision_date": "1996-12-03", "docket_number": "No. 22871", "first_page": "692", "last_page": "696", "citations": [ { "type": "official", "cite": "122 N.M. 692" }, { "type": "parallel", "cite": "930 P.2d 1144" }, { "type": "parallel", "cite": "1997-NMSC-002" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "280 Cal.Rptr. 862", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1991, "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "229 Cal.App.3d 1510", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4397615 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/cal-app-3d/229/1510-01" ] }, { "cite": "98 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582558 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "195" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0194-01" ] }, { "cite": "113 N.M. 105", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723310 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "109" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0105-01" ] }, { "cite": "114 N.M. 793", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731608 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "800" }, { "page": "1255" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0793-01" ] }, { "cite": "50 N.M. 349", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577092 ], "weight": 2, "year": 1947, "pin_cites": [ { "page": "352", "parenthetical": "applying this court's policy concerns regarding the welfare of the children in a custody case" }, { "page": "917", "parenthetical": "applying this court's policy concerns regarding the welfare of the children in a custody case" } ], "opinion_index": 0, "case_paths": [ "/nm/50/0349-01" ] }, { "cite": "111 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715094 ], "weight": 6, "pin_cites": [ { "page": "329" }, { "page": "98" }, { "page": "329-30" }, { "page": "98-99", "parenthetical": "affirming district court's determination that, on the facts before the court, court-mandated visitation by a stepmother would not be in the best interests of the children due to the high degree of conflict between stepmother and the father of the children" }, { "page": "325" }, { "page": "94", "parenthetical": "recognizing that the stepparents' interaction and interrelationship with stepchildren may significantly affect the children's best interest in a custody case" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0319-01" ] }, { "cite": "116 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727657 ], "weight": 6, "pin_cites": [ { "page": "713" }, { "page": "1180" }, { "page": "713-14" }, { "page": "1180-81", "parenthetical": "citations omitted" }, { "page": "721" }, { "page": "1188", "parenthetical": "J. Hartz specially concurring" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0708-01" ] }, { "cite": "662 F.Supp. 968", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7399537 ], "pin_cites": [ { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/f-supp/662/0968-01" ] }, { "cite": "768 F.2d 1194", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 356345 ], "pin_cites": [ { "page": "1196" } ], "opinion_index": 0, "case_paths": [ "/f2d/768/1194-01" ] }, { "cite": "121 N.M. 636", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566687 ], "weight": 8, "year": 1996, "pin_cites": [ { "page": "638", "parenthetical": "citing In re American Cable Publications, Inc., 768 F.2d 1194, 1196 (10th Cir.1985)" }, { "page": "838", "parenthetical": "citing In re American Cable Publications, Inc., 768 F.2d 1194, 1196 (10th Cir.1985)" }, { "page": "638" }, { "page": "838" }, { "page": "640" }, { "page": "840" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0636-01" ] }, { "cite": "105 Nev. 635", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4783038 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "1153" } ], "opinion_index": 0, "case_paths": [ "/nev/105/0635-01" ] }, { "cite": "513 F.2d 568", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 162933 ], "opinion_index": 0, "case_paths": [ "/f2d/513/0568-01" ] }, { "cite": "610 F.Supp. 1319", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 470392 ], "pin_cites": [ { "page": "1322" } ], "opinion_index": 0, "case_paths": [ "/f-supp/610/1319-01" ] }, { "cite": "738 F.Supp. 1121", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7393422 ], "year": 1990, "pin_cites": [ { "page": "1125" } ], "opinion_index": 0, "case_paths": [ "/f-supp/738/1121-01" ] }, { "cite": "518 F.2d 311", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1122098 ], "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/f2d/518/0311-01" ] }, { "cite": "546 F.2d 706", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1010091 ], "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/f2d/546/0706-01" ] }, { "cite": "777 F.Supp. 690", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7409931 ], "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/f-supp/777/0690-01" ] }, { "cite": "111 N.M. 467", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715076 ], "weight": 2, "pin_cites": [ { "page": "472" }, { "page": "1062" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0467-01" ] }, { "cite": "100 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588558 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "301" }, { "page": "1096" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0297-01" ] }, { "cite": "110 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716984 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "141" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0138-01" ] }, { "cite": "114 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731625 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "663", "parenthetical": "holding that an abuse of discretion is found when the trial court's rulings were \"clearly against the logic and effect of the facts and the circumstances before the court\"" }, { "page": "757", "parenthetical": "holding that an abuse of discretion is found when the trial court's rulings were \"clearly against the logic and effect of the facts and the circumstances before the court\"" }, { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0659-01" ] }, { "cite": "102 N.M. 166", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580056 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "168-69", "parenthetical": "considering a substantial evidence claim, this Court views the evidence in the light most favorable to the result below, resolving all conflicts and indulging in all inferences in favor of the trial court's decision" }, { "page": "1317-18", "parenthetical": "considering a substantial evidence claim, this Court views the evidence in the light most favorable to the result below, resolving all conflicts and indulging in all inferences in favor of the trial court's decision" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0166-01" ] } ], "analysis": { "cardinality": 839, "char_count": 15923, "ocr_confidence": 0.666, "pagerank": { "raw": 2.2260543493553244e-07, "percentile": 0.778185523557551 }, "sha256": "4da0b86034e9c0d4cc1a9af525d176b6bf2c02982dc97bd095b930a14eff1941", "simhash": "1:87e5b42a4340d73a", "word_count": 2550 }, "last_updated": "2023-07-14T15:23:55.699803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BACA, C.J., and McKINNON, J., concur." ], "parties": [ "Merle Applebaum SANDERS, Petitioner-Respondent, v. Michael G. ROSENBERG, Respondent-Petitioner." ], "opinions": [ { "text": "OPINION\nFRANCHINI, Justice.\n1 We granted Petitioner Michael Rosenberg\u2019s petition for writ of certiorari to determine whether the Court of Appeals correctly ruled that the trial court\u2019s disqualification of counsel was an abuse of discretion. We hold the trial court\u2019s discretion to determine the best interest of children is sufficiently broad to support the disqualification of counsel, and, provided there is substantial evidence to support the ruling, it will not be disturbed on appeal. In the instant case, we find no abuse of discretion and affirm the trial court\u2019s decision to disqualify Sanders. We therefore reverse the decision of the Court of Appeals.\n2 Facts and procedure. The underlying suit giving rise to the disqualification order concerned the divorce of the Petitioner Michael G. Rosenberg (Rosenberg) and Respondent Merle Applebaum Sanders (Merle). Subsequent to the entry of the final divorce decree in July 1985, the parties litigated recurring issues of the custody of their three children, time sharing, and child support. During their marriage, Merle and Rosenberg had three children, who primarily reside with their mother Merle. In 1990, Merle married Respondent Steven K. Sanders (Sanders), an attorney, and in January 1993 he entered his appearance to represent her on the remaining issues in the ongoing divorce proceedings.\n3 In 1993, Rosenberg moved to disqualify Sanders on three separate occasions on the grounds that Sanders 'was a necessary witness and his representation would not be in the best interest of the children. The court denied Rosenberg\u2019s motions. The following year, in 1994, Rosenberg filed a motion for a protective order requesting that Sanders not be allowed to take his deposition because of Sanders\u2019s dual roles as stepfather to Rosenberg\u2019s children and present husband of his ex-wife. The court granted Rosenberg\u2019s motion for a protective order, finding that allowing Sanders to take Rosenberg\u2019s deposition would not be in the best interests of the. children. Thereafter, the court agreed to reconsider whether Sanders should be disqualified as counsel in the case and requested the parties provide affidavits on the matter. Before that court could rule on the disqualification issue, the case was transferred to another judge.\n4 Following its reassignment, Rosenberg renewed his motion to disqualify Sanders. After a hearing on that motion, the newly assigned judge ruled that Sanders should be disqualified. Sanders appealed.\n5 On interlocutory appeal, the Court of Appeals reversed, holding that the trial court\u2019s disqualification of counsel constituted an abuse of discretion. The Court of Appeals held that Sanders had not violated Rule 16-107, and, though it recognized the trial court\u2019s broad authority to fashion rulings in the best interests of the children, it held that such authority was not sufficiently broad to disqualify a party\u2019s attorney absent an ethical or other violation. We disagree and reverse the decision of the Court of Appeals.\n6 Standard. We review the trial court\u2019s decision under a substantial evidence and abuse of discretion standard. See Clovis Nat\u2019l Bank v. Harmon, 102 N.M. 166, 168-69, 692 P.2d 1315, 1317-18 (1984) (considering a substantial evidence claim, this Court views the evidence in the light most favorable to the result below, resolving all conflicts and indulging in all inferences in favor of the trial court\u2019s decision); City of Santa Fe v. Komis, 114 N.M. 659, 663, 845 P.2d 753, 757 (1992) (holding that an abuse of discretion is found when the trial court\u2019s rulings were \u201cclearly against the logic and effect of the facts and the circumstances before the court\u201d); State v. Litteral, 110 N.M. 138, 141, 793 P.2d 268, 271 (1990); State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983); Alpers v. Alpers, 111 N.M. 467, 472, 806 P.2d 1057, 1062 (Ct.App.1990).\n7 The trial court\u2019s broad discretion to fashion its rulings in the best interest of children includes the authority to disqualify counsel. When the trial court entered its disqualification order, it set forth the following two grounds for its ruling:\nB. It is not in the best interests of the minor children of the parties for their stepfather and mother\u2019s husband, Steven K. Sanders, Esq., to continue his representation of the children\u2019s mother, Merle A. Sanders, in this matter.\nC. The interests of justice would be impeded if Steven K. Sanders were allowed to continue his representation of the Petitioner in this matter.\nPrior to the entry of its order, the trial court filed a letter decision that alluded to Sanders\u2019 continued representation of Merle as violative of Rule 16-107. The trial court\u2019s disqualification order, however, made no mention of any ethical or other violation, relying instead upon its broad discretion to fashion its rulings in the best interests of the children. Accordingly, we address only the trial court\u2019s stated basis for its ruling as explicitly expressed in its final order, rather than the application of SCRA 16-107.\n8 As Petitioner Rosenberg correctly asserts, a number of courts have held that \u201c[a] trial court has broad discretion in determining whether disqualification is required in a given case.\u201d Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 777 F.Supp. 690, 693 (C.D.Ill.1991) (citing Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir.1976)); see also Redd v. Shell Oil Co., 518 F.2d 311, 314 (10th Cir.1975); Gould v. Mitsui Min. & Smelting Co., 738 F.Supp. 1121, 1125 (N.D.Ohio 1990); Kalmanovitz v. G. Heileman Brewing Co., Inc., 610 F.Supp. 1319, 1322 (D.Del.1985). Similarly, a number of courts have also held that any doubts should be resolved in favor of disqualification. See Hull v. Celanese Corp., 513 F.2d 568 (2d Cir.1975); Cronin v. Eighth Judicial Dist. Court, 105 Nev. 635, 781 P.2d 1150, 1153 (1989).\n9 Even though a party has a right to be represented by an attorney of her own choosing, see Chappell v. Cosgrove, 121 N.M. 636, 638, 916 P.2d 836, 838 (1996) (citing In re American Cable Publications, Inc., 768 F.2d 1194, 1196 (10th Cir.1985)) we have recognized that such a right is not absolute. Chappell, 121 N.M. at 638, 916 P.2d at 838. If a compelling reason exists that supports the disqualification of counsel, a court may reject that party\u2019s chosen counsel. Id. (citing, Ramsay v. Boeing Welfare Benefit Plans Comm., 662 F.Supp. 968, 970 (D.Kan.1987)) (\u201cThe court is also mindful that a person\u2019s right to select his own counsel, although not an absolute right, may be overridden only where compelling reasons exist.\u201d). In Chappell, we determined that the trial court was entitled to exercise its discretion to disqualify the party\u2019s choice of counsel when the counsel was a necessary witness under SCRA 1986, 16-307 (Repl.Pamp.1995) (lawyer as witness). 121 N.M. at 640, 916 P.2d at 840. In that case, because we found that the disqualified counsel was not a necessary witness, we found no compelling reason existed that was sufficient to override a party\u2019s choice of counsel. Id. In the instant case, we determine whether the trial court\u2019s disqualification of Sanders under the \u201cbest interests of the children\u201d rule constitutes a compelling reason sufficient to deny the mother her counsel of choice.\n10 \u201cIn New Mexico, there is a strong tradition of protecting a child\u2019s best interests in a variety of circumstances.\u201d In re Adoption of Francisco A., 116 N.M. 708, 713, 866 P.2d 1175, 1180 (Ct.App.1993). It is well-settled law that when the case involves children, the trial court has broad authority to fashion its rulings in \u201cbest interests of the children.\u201d Id.; Rhinehart v. Nowlin, 111 N.M. 319, 329, 805 P.2d 88, 98 (Ct.App.1990) (applying the standard of \u201cbest interest of the children\u201d to determine stepmother\u2019s visitation rights). We regard the welfare of the children as a \u201cmatter of primary concern, paramount to the wishes of the parents.\u201d Edington v. Edington, 50 N.M. 349, 352, 176 P.2d 915, 917 (1947) (applying this court\u2019s policy concerns regarding the welfare of the children in a custody case). The court\u2019s authority under the \u201cbest interest of the children\u201d rule is essentially equitable:\n[W]hen dealing with children, the district court is exercising its equitable powers ____ The touchstone of equity is that it is flexible; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties____ [T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command.\nIn re Adoption of Francisco A., 116 N.M. at 713-14, 866 P.2d at 1180-81 (citations omitted). We therefore decline to limit or restrict the trial court\u2019s inherent authority to protect the interests of the children only to instances where counsel has violated an ethical or specific court rule.\n11 Whether Sanders\u2019s representation of the mother would be against the best interests of the child is a factual determination that must be made on the evidence. See Rhinehart, 111 N.M. at 329-30, 805 P.2d at 98-99 (affirming district court\u2019s determination that, on the facts before the court, court-mandated visitation by a stepmother would not be in the best interests of the children due to the high degree of conflict between stepmother and the father of the children). It is not the duty of the appellate court to reweigh the evidence before the trial court or reverse the trial court\u2019s decision simply because the appellate court would have reached a different decision. See Gardner v. Gholson, 114 N.M. 793, 800, 845 P.2d 1247, 1255 (1992). Instead we defer to the findings of the trial court because it is the duty of that court to weigh credibility of witnesses and to resolve conflicting evidence. Montoya v. Torres, 113 N.M. 105, 109, 823 P.2d 905, 909 (1991). Because the trial court is in a better position than we are to make the findings of fact, we view that evidence in the light most favorable to support the court\u2019s decision. Therefore, provided substantial evidence supports the trial court\u2019s decision to disqualify Sanders, it will not be disturbed on appeal. See Id.; Mountain States Constr. Co. v. Aragon, 98 N.M. 194, 195, 647 P.2d 396, 397 (1982).\n12 The trial court held a hearing on the disqualification motion on March 20, 1994. The documentary evidence before the court consisted of the entire record of the parties\u2019 domestic relations case since 1985, and a number of affidavits \u2014 one by Rosenberg, one by Merle, one by Nancy B. Lee, Ph.D, a certified psychologist, and one by another certified psychologist, Dale Davis Smith, Ph.D. Both of the psychological experts recommended that the children undergo an assessment by a mental health care professional. In Dr. Lee\u2019s affidavit, she stated that she was \u201cvery concerned that this situation may be causing emotional harm to the children.\u201d She explained the problems as follows:\nWhen a step-parent serves as the mother\u2019s attorney, the family structure is changed. A step-parent must show respect for the natural parents so as not to place the children in any conflict of loyalties. By the step-father\u2019s adversarial role in battling the natural father and his attorney, the stepfather is placed in a conflict of interest between his role as an attorney and his role as a stepfather. With this change in the family structure, the likelihood of successful cooperation between mother and natural father is greatly reduced.\nThe change of the family structure when the stepfather becomes the attorney for the mother is likely to cause a wide range of problems for the children. These problems may be expressed in the behavior of the children, but not always. There is a risk that the problems may be less obvious and latent, and may not be expressed until later in the children\u2019s lives. Nevertheless the risk to the children can be very real.\nThe conflict here has been prolonged. The best interest of the children is for the stress that the children experience to be reduced by the parents. Usually most situations settle down within a couple of years of the divorce. Because this case has been going on so long, the children may have had to develop coping skills to deal with ongoing stress____\nIn her expert opinion, Dr. Lee further stated that:\nI believe the present situation where stepfather represents mother is potentially very unhealthy and destructive to the children\u2019s mental health. There is a real likelihood of harm to each child.\n13 In Rosenberg\u2019s affidavit, he recounts various incidents where the children were upset or uncomfortable over Sanders\u2019s dual roles of stepfather and attorney representing their mother against their father. Rosenberg also disclosed his own discomfort with Sanders\u2019s representation, claiming that he was uncomfortable and intimidated by Sanders\u2019s presence at family gatherings, extracurricular events, school functions, religious functions and social functions. On one occasion, Rosenberg contends that both he and the children were upset when Sanders subpoenaed the children's paternal grandfather at one of the children\u2019s Bat Mitzvah. The mother denies the statements made in Rosenberg\u2019s affidavit, claiming that Rosenberg frequently asked the children inappropriate questions regarding Sanders and his role as her attorney.\n14 The trial court\u2019s ruling disqualifying Sanders was clearly intended to reduce the hostility between those persons that are close to the children, including the stepfather, mother, and father. \u201cBy diminishing the likelihood of struggle between parents and others close to the child with whom the parents are at cross-purposes, the parental preference minimizes the likelihood the child will be exposed to hostility between those with whom he or she has a strong attachment, which can cause distress, create loyalty dilemmas and be disruptive of the child\u2019s socialization experiences.\u201d In re Adoption of Francisco A., 116 N.M. at 721, 866 P.2d at 1188 (J. Hartz specially concurring) (quoting In re Marriage of Gayden, 229 Cal.App.3d 1510, 280 Cal.Rptr. 862, 865 (1991)).\n15 Sanders contends that the trial court abused its discretion in disqualifying him from representing Merle. We disagree. Under the proper circumstances, the trial court may disqualify counsel pursuant to the \u201cbest interest of the children\u201d rule. Here, the trial court properly weighed two important interests \u2014 the best interests of the children and the mother\u2019s interest in representation by counsel of her own choosing. In this particular domestic relations case, there exists a long-term, ongoing conflict between the divorced parents. There is ample evidence in the record to support the court\u2019s decision that, in view of the continuing conflict between the parties, the continued representation by Sanders would not be in the best interests of the children. The representation by the stepfather against the children\u2019s natural father is inherently likely to affect the children. See Rhinehart, 111 N.M. at 325, 805 P.2d at 94 (recognizing that the stepparents\u2019 interaction and interrelationship with stepchildren may significantly affect the children\u2019s best interest in a custody case). Under the facts herein, the trial court\u2019s ruling was logical and reasonable. See Komis, 114 N.M. at 663, 845 P.2d at 757.\n16 Conclusion. For the foregoing reasons, we affirm the trial court\u2019s order disqualifying Sanders.\n17 IT IS SO ORDERED.\nBACA, C.J., and McKINNON, J., concur.", "type": "majority", "author": "FRANCHINI, Justice." } ], "attorneys": [ "Shannon L. Donahue, P.C., Shannon L. Donahue and Cindi L. Pearlman, P.C., Cindi L. Pearlman, Albuquerque, for Petitioner-Respondent.", "Law Office of Mel B. O\u2019Reilly, Mel B. O\u2019Reilly, Albuquerque, for Respondent-Petitioner." ], "corrections": "", "head_matter": "1997-NMSC-002\n930 P.2d 1144\nMerle Applebaum SANDERS, Petitioner-Respondent, v. Michael G. ROSENBERG, Respondent-Petitioner.\nNo. 22871.\nSupreme Court of New Mexico.\nDec. 3, 1996.\nShannon L. Donahue, P.C., Shannon L. Donahue and Cindi L. Pearlman, P.C., Cindi L. Pearlman, Albuquerque, for Petitioner-Respondent.\nLaw Office of Mel B. O\u2019Reilly, Mel B. O\u2019Reilly, Albuquerque, for Respondent-Petitioner." }, "file_name": "0692-01", "first_page_order": 742, "last_page_order": 746 }