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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DENAE TURLEY, and EDITH
3 TURLEY and KARL TURLEY,
4 Petitioners-Appellees,
5 v. No. 35,846
6 TYRONE WHETTEN,
7 Respondent-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
9 J.C. Robinson, District Judge
10 Lopez, Dietzel & Perkins, P.C.
11 Cathryn L. Wallace
12 Silver City, NM
13 for Appellees
14 New Mexico Legal Aid, Inc.
15 Kate M. Merwald
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 ZAMORA, Judge.
1 {1} Defendant Tyrone Whetten (Father) appeals from a district court order
2 awarding joint custody. We issued a calendar notice proposing to affirm. Father has
3 responded with a memorandum in opposition. Not persuaded by Father’s arguments,
4 we affirm the district court.
5 {2} Father continues to challenge the evidence to support the district court’s
6 custody determination. We will overturn the district court’s custody decision only for
7 abuse of discretion, and we will uphold the court’s findings if they are supported by
8 substantial evidence; an abuse of discretion occurs when a ruling is clearly contrary
9 to the logical conclusions demanded by the facts and circumstances of the case. See
10 Grant v. Cumiford, 2005-NMCA-058, ¶ 13, 137 N.M. 485, 112 P.3d 1142.
11 {3} Here, Father and Mother have two children together: J.W., born in October
12 2013 and E.T., born in June 2015. [RP 132] While Mother was still pregnant with
13 E.T., she and her parents filed a petition for custody, support, and grandparent
14 visitation. [RP 1] The district court awarded Father and Mother joint legal custody of
15 the children, gave Mother primary physical custody of E.T., and gave Father primary
16 physical custody of J.W. [135]
17 {4} Defendant’s memorandum in opposition continues to claim that the district
18 court failed to properly consider the factors in NMSA 1978, Section 40-4-9 (1977)
19 (setting out standards for the determination of child custody), and NMSA 1978,
2
1 Section 40-4-9.1(B) (1999) (setting out factors to consider with respect to joint
2 custody). We disagree. A review of the district court’s findings and conclusions [RP
3 132], as well as its order denying the motion to amend [RP 166], indicate that the
4 district court gave due consideration to these factors, and applied them to the unique
5 circumstances of this case. See Crutchfield v. N.M. Dep’t of Taxation & Revenue,
6 2005-NMCA-022, ¶ 28, 137 N.M. 26, 106 P.3d 1273 (stating that we liberally
7 construe the trial court’s findings to support the judgment).
8 {5} The district court took judicial notice of Mother’s criminal case, and noted that
9 Mother had been participating in counseling as a result. [RP 132-33] The district court
10 found that there is no credible evidence that either parent is unable to or unwilling to
11 care for the children. [RP 134] With respect to protecting Father from any future
12 abuse, the district court ordered that all communications between the parties be in
13 writing, that Mother continue with her counseling and treatment, and that all
14 exchanges of the children take place at the KISS facility. [RP 168-69, ¶¶ 14-15] The
15 district court was free to reject the GAL’s recommendation [referenced at RP 97] that
16 Father should have primary physical custody of both of the children. See Kimbrell v.
17 Kimbrell, 2014-NMSC-027, ¶ 12, 331 P.3d 915 (stating that the district court is not
18 bound by the recommendations of the GAL). The district court also found that both
19 parents receive substantial support from their respective families. [RP 133] It is clear
3
1 from the court’s findings that the district court believed that Mother’s prior criminal
2 conduct would not prevent her from being able to properly parent her children. [RP
3 133; 169-70] See § 40-4-9.1(B)(9) (requiring a finding that the custody order
4 adequately protects child or other parent where there has been domestic violence).
5 {6} With respect to Father’s claim that it was wrong to separate E.T. from her
6 brother and half-siblings, the district court’s order will have E.T. with her brother on
7 each weekend, and she will also be with her half-siblings every other weekend. [RP
8 135] The district court specifically emphasized that its order did not permanently
9 separate the children. [RP 163] In sum, a reading of the findings as a whole indicate
10 that the district court considered the applicable statutory factors, and the findings are
11 supported by substantial evidence.
12 {7} For the reasons set forth above, we affirm.
13 {8} IT IS SO ORDERED.
14
15 M. MONICA ZAMORA, Judge
16 WE CONCUR:
17
18 JAMES J. WECHSLER, Judge
19
4
1 MICHAEL E. VIGIL, Judge
5