Sanchez v. Sanchez

¶1(concurring in part, dissenting in part).

¶2I agree with the majority affirming on issues 1 and 3, but I am unable to agree on issue 2, the award of joint custody. The trial court, in my view, should also be affirmed on that issue.

¶3“A trial court has wide discretion in awarding custody of a child in a divorce case, and the welfare of the child is of primary importance in making the award.” Creusere v. Creusere, 98 N.M. 788, 789-790, 653 P.2d 164, 165-166 (1982). We review an award of custody for abuse of discretion. Id.

¶4In finding an abuse of discretion, the majority focus on the trial court’s findings of fact Nos. 9 and 10. Those findings state:

9. To be effective joint legal custody requires that the parents be willing and able to communicate and cooperate with each other and reach agreement on issues regarding the child’s needs, including the child’s care and control, education, health, and religion.

10. Although the parties do not have an amicable relationship, they have shown the ability to communicate and cooperate with each other in promoting the child’s best interests and needs on those occasions when they have set aside their present differences and have not been unduly influenced by their respective families and friends.

¶5While admittedly less than overwhelming, there was evidence to support finding No. 10. There was evidence that prior to the April 3 hearing, the parties agreed to joint legal and physical custody when and if Dr. Trujillo filed her report; that the animosity at the exchanges was primarily attributable to the father’s family’s and friends’ “use of intimidating tactics”; and that on May 17 the trial court stated it had received Dr. Trujillo’s report and, according to the parties’ stipulation, joint custody should commence. Moreover, the two other experts’ objections to joint custody seem to be based more on their personal philosophies regarding that concept than its application to this case. Finally, as the trial court found, the joint custody arrangement is not significantly different from the sole custody with liberal visitation recommended by father’s expert, Dr. Pilgrim.

¶6By awarding joint custody, it appears the trial court was trying to avoid giving one party or the other the sense that they have won the child. There are indications in the reports of father’s expert witnesses that the parties were competing in a winner/loser format. The trial court may well have had concerns that an award of sole custody would only aggravate the communication problems that presently exist, with the custodian taking advantage of the fact that he or she emerged victorious, to the disadvantage of the noncustodial parent’s rights. Even father’s expert agrees with the importance that the child maintain a close relationship with both parents.

¶7It is certainly feasible to infer that the trial court, upon the opinion of all experts, felt that the most important factor in the best interests analysis was that the child maintain a close relationship with both parents, and that the only way to effectuate this would be to award joint custody.

¶8Considering all of the trial court’s findings, including those which track the factors under NMSA 1978, Section 40-4-9.1 (Repl.1986)1, I am unable to say there was a manifest abuse of discretion. For example, the trial court, among other things, found that the child has established a close relationship with each parent and with the grandparents on both sides; that both parents are capable of providing adequate care for the child throughout each period of responsibility, including arranging for her care by others as needed; each parent has shown a willingness to accept all responsibilities of parenting, including a willingness to accept care at specified times and to relinquish care to the other parent without intrusion; that the child can best maintain and strengthen her relationship with both parents through frequent, predictable contact and that the child’s development will profit from such involvement and influence from both parents; that the geographic distance poses no obstacle to joint custody; and that joint legal and physical custody is in the best interests of the child.

¶9The trial court recognized that both parties are immature and need improvement in parenting skills. It also acknowledged the mother’s occasional use of marijuana and, while not condoning such use, found it had never occurred in the child’s presence or affected the child’s welfare.

¶10The supreme court in Creusere v. Creusere said: “ ‘[t]he determination of the trial judge, who saw the parties, observed their demeanor and heard their testimony will not be overturned absent a manifest abuse of discretion.’ ” Id. at 790, 653 P.2d at 166 (quoting Ridgway v. Ridgway, 94 N.M. 345, 347, 610 P.2d 749, 751 (1980) (emphasis added)). With eighteen separate hearings over fifteen months, I must agree with the trial court that it “has had an ample opportunity to observe the demeanor of the parties.” I would, therefore, affirm.