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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 ROMAN CHIP,
3 Petitioner-Appellant,
4 v. No. 33,958
5 SOVANKOTHEA (THEA) CHIP
6 (n/k/a MILLS),
7 Respondent-Appellee,
8 v.
9 STATE OF NEW MEXICO, ex rel.
10 HUMAN SERVICES DEPARTMENT,
11 Intervenor.
12 APPEAL FROM THE DISTRICT COURT OF DON˜A ANA COUNTY
13 Mary W. Rosner, District Judge
14 Caren I. Friedman
15 Santa Fe, NM
16 for Appellant
17 Grace B. Duran
18 Las Cruces, NM
1 for Appellee
2 MEMORANDUM OPINION
3 FRY, Judge.
4 {1} Father appeals the district court’s alteration of a joint custody order that
5 permitted Mother to relocate with Children to Germany. Father argues on appeal that
6 the district court applied the wrong legal standard, that the district court’s ruling
7 violates his right to due process, and that the district court abused its discretion in
8 excluding Daughter’s journal from disclosure. Because we conclude that the district
9 court applied the correct legal standard and that the exclusion of Daughter’s journal
10 was harmless error, we affirm.
11 {2} Because this is a memorandum opinion and the parties are familiar with the
12 facts and procedural history, we reserve further discussion of the pertinent facts for
13 our analysis.
14 DISCUSSION
15 Standard of Review
16 {3} “A determination of custody will not be overturned on appeal absent a manifest
17 abuse of the trial court’s discretion.” Brito v. Brito, 1990-NMCA-062, ¶ 7, 110 N.M.
1 276, 794 P.2d 1205. To the extent that Father’s argument requires us to engage in
2 statutory interpretation, we review such questions de novo. See Morgan Keegan
3 Mortg. Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066.
4 The District Court Applied the Correct Legal Standard
5 {4} Father argues three reasons why the district court applied an incorrect legal
6 standard. First, Father argues that, under Jaramillo v. Jaramillo, 1991-NMSC-101,
7 113 N.M. 57, 823 P.2d 299, the district court failed to elicit testimony from a special
8 master or guardian ad litem as to whether the relocation was in Children’s best
9 interest. Second, Father argues that the district court substituted a “points of contact”
10 inquiry in lieu of the statutory factors it was required to consider. Third, Father argues
11 that courts should be required to consider additional requirements for determining
12 whether an international relocation is in a child’s best interest. We address these issues
13 in turn.
14 {5} In regard to the first issue, we disagree that the district court had a duty to sua
15 sponte consult a guardian ad litem or otherwise elicit expert testimony regarding
16 Children’s best interest where neither party requested it. In Jaramillo, our Supreme
17 Court stated that in determining the best interest of a child, “[i]t . . . becomes
18 incumbent on the trial court to consider as much information as the parties choose to
2
1 submit, or to elicit further information on its own motion [from a court-appointed
2 expert, special master, or guardian ad litem] or such other sources as the court may
3 have available, and to decide what new arrangement will serve the child’s best
4 interests.” 1991-NMSC-101, ¶ 27. This statement in Jaramillo does not stand for the
5 proposition that a district court has a duty as a matter of law to consult these sources.
6 Instead, in the context of the opinion, it stands as a recognition by our Supreme Court
7 that district courts may consult these sources and that they can be important in
8 determining a child’s best interest. This interpretation of Jaramillo is supported by the
9 fact that the appointment of a guardian ad litem is within the discretion of the district
10 court. See NMSA 1978, § 40-4-8(A) (1993) (“In any proceeding for the disposition
11 of children when custody of minor children is contested by any party, the court may
12 appoint an attorney at law as guardian ad litem on the court’s motion.” (emphasis
13 added)).
14 {6} Second, although we recognize that the district court’s decision could have
15 benefitted from a more focused analysis of the statutory factors, we conclude that the
16 basis of the decision is sound and not an abuse of discretion. In determining whether
17 to alter an existing custody arrangement, the paramount inquiry is what is in the best
18 interest of the child. NMSA 1978, § 40-4-9(A) (1977); Jaramillo, 1991-NMSC-101,
3
1 ¶ 13 (“The ‘best interests’ criterion . . . is the lodestar for determining a custody
2 award[.]”). Under Jaramillo, “[e]ach party [has] the burden to persuade the court that
3 the new custody arrangement or parenting plan proposed by him or her should be
4 adopted by the court . . . [and] the court remains free to adopt the arrangement or plan
5 that it determines best promotes the child’s interest.” 1991-NMSC-101, ¶ 27.
6 Although neither Section 40-4-9 nor NMSA 1978, Section 40-4-9.1 (1999)
7 specifically mentions the factors a district court is to consider when modifying a joint
8 custody order due to an impending relocation, it seems apparent that the factors listed
9 for “determining whether a joint custody order is in the best interests of the child”
10 would include such modifications to a previous joint custody order. Section 40-4-
11 9.1(B). Therefore, the factors listed in Sections 40-4-9.1 and 40-4-9 are the relevant
12 principles of determining a child’s best interest under these circumstances. See Section
13 40-4-9.1(B) (requiring a district court to consider the factors listed Section 40-4-9 in
14 addition to Section 40-4-9.1’s factors).
15 {7} In this case, the district court provided two reasons for its decision. The district
16 court stated that “[C]hildren have more points of contact with [Mother] and
17 [Stepfather] and their two children [(Children’s half-siblings)] compared to [Father]
4
1 and the extended family and friends in New Mexico” and that “there are cultural
2 advantages in Germany and travel opportunities for [C]hildren in Europe.”
3 {8} As an initial matter, we accord no deference to the district court’s finding
4 regarding Children’s cultural opportunities in Europe. Granted, it is possible, from an
5 adult’s perspective, to romanticize the cultural opportunities presented by living in
6 Europe. The district court certainly seemed enamored of the idea, even going so far
7 as to suggest that Father also move to Germany. However, it is doubtful that this
8 sentiment in any way compares to the significant relationship interests at stake in this
9 case, not only between Children and their Father, but also between Children and their
10 extended family and other corresponding ties to the Las Cruces community.
11 Furthermore, the finding is arbitrary. These same cultural opportunities would be
12 present had the district court decided that Children should remain in New Mexico
13 during the school year and visit Mother during summer vacation. Therefore, we
14 conclude that this factor has no bearing on determining the validity of the district
15 court’s decision.
16 {9} That said, we are unconvinced that the district court’s “points of contact”
17 finding was an abuse of discretion. As the district court noted, both parents presented
18 compelling reasons as to why Children should be placed in their respective homes. On
5
1 the one hand, Children had well-established family ties in Las Cruces and were, by all
2 accounts, positively engaged in the broader community through important friendships,
3 scholastic achievements, and religious participation. On the other hand, Children have
4 two half-siblings through Mother and a positive relationship with their stepfather.
5 These considerations directly relate to statutory factors concerning “the interaction
6 and interrelationship of the child with his [or her] parents, his [or her] siblings and any
7 other person who may significantly affect the child’s best interest” and “the child’s
8 adjustment to his [or her] home, school and community.” Section 40-4-9(A)(3)-(4).
9 Although the phrase “points of contact” does not appear in the statutory factors, we
10 understand the district court’s decision to ultimately be a determination that the
11 relationship between Children and their half-siblings and, to a lesser degree, the
12 stepfather, prevailed over Children’s ties to Las Cruces. While we acknowledge that
13 reasonable minds could differ in respect to this decision, we cannot say that the district
14 court’s determination rises to the level of an abuse of discretion. See Talley v. Talley,
15 1993-NMCA-003, ¶ 12, 115 N.M. 89, 847 P.2d 323 (“When there exist reasons both
16 supporting and detracting from a trial court decision, there is no abuse of discretion.”).
17
6
1 {10} Third, we decline to consider Father’s arguments asking this Court to impose
2 additional considerations in international relocation cases. This argument was not
3 raised below, and it was therefore not preserved. See Woolwine v. Furr’s, Inc., 1987-
4 NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To preserve an issue for review on
5 appeal, it must appear that appellant fairly invoked a ruling of the trial court on the
6 same grounds argued in the appellate court.”). Furthermore, the factors a district court
7 utilizes in determining whether to modify a joint custody award to permit relocation
8 are statutory and, thus far, the Legislature has not seen fit to distinguish between
9 national and international relocations.
10 {11} Finally, because we disagree with Father that the district court’s decision was
11 erroneous, we further conclude that the decision did not violate Father’s due process
12 rights. We add, however, that any suggestion that Mother had the choice to remain in
13 Las Cruces while her husband was stationed in Germany is as unrealistic a solution
14 as the district court’s suggestion to Father that he also move to Germany. Relocation
15 of a parent in a joint custody arrangement is an unfortunate reality. However, our
16 Legislature has provided statutory considerations for district courts to use in
17 determining the best interest of the children involved and to implement parenting
7
1 plans that, as much as possible, ensure meaningful participation of both parents in a
2 child’s upbringing.
3 Exclusion of Daughter’s Journal was Harmless Error
4 {12} Father argues that the district court abused its discretion in
5 prohibiting disclosure of Daughter’s journal. The journal was apparently kept between
6 Mother and Daughter. Father sought production of the journal in order to investigate
7 any communications between Mother and Daughter regarding the relocation,
8 specifically whether Mother was attempting to keep the move secret from Father and
9 influence Daughter’s amenability to the move. The district court granted Mother’s
10 request for a protective order prohibiting the journal’s disclosure and further
11 preventing any mention of the journal at trial.
12 {13} “The standard of review for discovery orders is abuse of discretion.” Pincheira
13 v. Allstate Insurance Co., 2007-NMCA-094, ¶ 27, 142 N.M. 283, 164 P.3d 982.
14 However, where a district court’s “discretionary decision is premised on the
15 construction of a privilege . . . review of that decision presents a question of law,
16 subject to de novo review.” Id.
17 {14} We first summarize the district court’s decision. The only reason given in the
18 order is that “[D]aughter’s journal is her personal property and will not be disclosed.
8
1 However, review of the hearing on the motion provides further insight into the court’s
2 decision. The court indicated that the first inquiry in determining whether the journal
3 was subject to disclosure was, “Whose property is it?” In remarking that the journal
4 was the personal property of Daughter, the court explained:
5 Having been a nine-year-old daughter myself, and having many sisters
6 and many females in my life, [and] having a journal that one shares with
7 a mother or a trusted aunt . . . this is incredibly private. Things that she
8 is only willing to disclose with another adult, who is trusted, have been
9 put in this journal. How do I know that? I don’t know that for a fact. I do
10 know nine-year-old girls. And this is a trusted document.
11 The court then reiterated that the journal is “private and it doesn’t belong to the mom
12 and it doesn’t belong to the dad,” and, therefore, it was not subject to disclosure.
13 {15} We are unsure where the district court got the notion that the primary inquiry
14 was determining whom the journal belonged to. There did not seem to be a dispute
15 that Mother was in possession of the journal. Mother instead argued that it was not
16 subject to discovery because it was a “personal and private communication between
17 Mother and Daughter.” Therefore, the primary inquiries were whether the
18 communications were relevant to the proceedings and, if so, whether they were
19 privileged. Rule 1-026(B)(1) NMRA (“Parties may obtain discovery of any
20 information, not privileged, which is relevant to the subject matter involved in the
9
1 pending action.”). Concluding that a communication is “personal property” does
2 nothing to address these concerns.
3 {16} Furthermore, while we understand the district court’s personal anecdote
4 indicating that a nine-year-old would likely be mortified to have his or her journal
5 containing private thoughts discussed in open court, we are not aware of any provision
6 of the law that protects these types of communications as privileged. Rule 11-501(C)
7 NMRA (“Unless required by the constitution, these rules, or other rules adopted by
8 the [S]upreme [C]ourt, no person has a privilege to . . . refuse to produce any object
9 or writing.”). There are any number of intensely private communications that are
10 unprotected by our rules of privilege, and compelling reasons must exist to prohibit
11 their disclosure. Rules 11-501 to 11-514 NMRA (listing specific privileges). The fact
12 that they are personal property is not, in itself, such a justification.
13 {17} Despite these misgivings regarding the district court’s decision, we conclude
14 that any alleged error was harmless. “In civil litigation, error is not grounds for setting
15 aside a verdict unless it is inconsistent with substantial justice or affects the substantial
16 rights of the parties.” Kennedy v. Dexter Consol. Schs., 2000-NMSC-025, ¶ 26, 129
17 N.M. 436, 10 P.3d 115 (internal quotation marks and citation omitted). The
18 complaining party carries the burden to show that the error created prejudice. Id.
10
1 {18} Father argued at the hearing that the journal was relevant to whether Mother is
2 willing to support his relationship with Children. Father believed that evidence that
3 Mother was keeping the move secret from Father and potentially attempting to
4 influence Daughter’s feelings about the move would show that she is not willing to
5 do so. Father argued that the district court had to consider each parent’s willingness
6 and ability to allow the other parent’s relationship to flourish. While not technically
7 correct, this consideration is encapsulated by Sections 40-4-9.1(B)(5) and (8), which
8 direct the court to consider “whether each parent is able to allow the other to provide
9 care without intrusion, that is, to respect the other’s parental rights and responsibilities
10 and right to privacy . . . [and the] willingness or ability of the parents to communicate,
11 cooperate or agree on issues regarding the child’s needs[.]”
12 {19} We are unconvinced, however, that disclosure of the journal would have had
13 any meaningful effect on the outcome of this case. While the district court did not
14 allow discussion of the journal, the district court did allow counsel to cross-examine
15 Mother regarding her communications with Daughter about the move. Both parents
16 testified to their history of cooperation, albeit with some expected difficulties, in
17 ensuring that each had “predictable, frequent contact” with Children and a
18 commitment to ensuring that the same level of cooperation exists in the future. Section
11
1 40-4-9.1(B)(4). In fact, Father testified that the parents have good communication and
2 agreed that good communication is inconsistent with a claim of parental alienation.
3 Likewise, both Mother and her husband acknowledged that Father was a very devoted
4 father, had strong bonds with Children, and that Children had expressed apprehension
5 about the move. Such testimony, particularly on the part of Mother, is inconsistent
6 with a claim that Mother was attempting to influence Daughter’s attitude toward the
7 move or to create alienation in the father/daughter relationship. Because those issues
8 did not appear to be in dispute, production of the journal and discussion of its contents
9 was of little value in these proceedings. Accordingly, we conclude that the error was
10 harmless.
11 CONCLUSION
12 {20} For the foregoing reasons, we affirm the district court.
13 {21} IT IS SO ORDERED.
14 _________________________
15 CYNTHIA A. FRY, Judge
16 WE CONCUR:
17 ____________________________
18 JAMES J. WECHSLER, Judge
12
1 ____________________________
2 LINDA M. VANZI, Judge
13