IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-008
Filing Date: December 9, 2009
Docket No. 29,033
KARIN FRENCH-HESCH,
Petitioner-Appellant,
v.
KEALY FRENCH-WILLIAMS,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge
Stephen P. Eaton
Albuquerque, NM
for Appellant
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellee
OPINION
SUTIN, Judge.
{1} The district court ruled that a maternal grandmother lacked standing under the
Grandparent Visitation Privileges Act, NMSA 1978, §§ 40-9-1 to -4 (1993, as amended
through 1999) (the Act), to seek reasonable visitation with her grandson. Grandmother
appeals. We reverse and remand for further proceedings.
BACKGROUND
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{2} Pursuant to the Act, Karin French-Hesch (Grandmother), Jerry Hesch, and Curtis
McMurtrey filed a petition in district court in October 2007 naming Kealy French-Williams
(Mother) as Respondent requesting visitation with Deveron French (Child), Grandmother’s
grandson, who was born in March 1996. Messrs. Hesch and McMurtrey were soon
dismissed as parties and are not involved in this appeal. Mother answered, asserting that
Grandmother could not meet threshold requirements for visitation under Section 40-9-2(C)
of the Act. The district court held an evidentiary hearing to determine whether a factual
basis exists for the court to exercise jurisdiction under the Act. The court addressed the
interpretation and application of Subsections (C) and (G) of Section 40-9-2. These
subsections read as follows:
C. If a minor child resided with a grandparent for a period of at
least three months and the child was less than six years of age at the
beginning of the three-month period and the child was subsequently removed
from the grandparent’s home by the child’s parent or any other person, the
grandparent may petition the district court for visitation privileges with
respect to the child[.]
....
G. When considering a grandparent’s petition for visitation
privileges with a child, the district court shall assess:
(1) any factors relevant to the best interests of the child;
(2) the prior interaction between the grandparent and the
child;
(3) the prior interaction between the grandparent and each
parent of the child;
(4) the present relationship between the grandparent and
each parent of the child;
(5) time-sharing or visitation arrangements that were in
place prior to the filing of the petition;
(6) the effect the visitation with the grandparent will have
on the child;
(7) if the grandparent has any prior convictions for
physical, emotional or sexual abuse or neglect; and
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(8) if the grandparent has previously been a full-time
caretaker for the child for a significant period.
Section 40-9-2(C), (G). The district court ruled that Grandmother lacked standing under the
Act and dismissed her petition.
DISCUSSION
{3} The parties agree that under the Act Grandmother must meet the threshold
requirement of standing under Subsection (C) before the court can proceed on the merits of
the visitation petition under Subsection (G). See Ridenour v. Ridenour, 120 N.M. 352, 354,
356, 901 P.2d 770, 772, 774 (Ct. App. 1995) (stating that once one of the threshold
requirements set out in Section 40-9-2(A) to (F) is met, the district court is to assess the
factors in Section 40-9-2(G) and that “visitation is appropriate only after grandparents have
met one of the threshold factors”).
Standard of Review
{4} We review a district court’s findings for substantial evidence and resolve all disputes
of facts and indulge all reasonable inferences in support of the prevailing party. Las Cruces
Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d
177 (filed 1996). We review conclusions of law de novo and we may draw our own
conclusions of law. Edmonds v. Martinez, 2009-NMCA-072, ¶ 8, 146 N.M. 753, 215 P.3d
62, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42; Strata Prod. Co. v.
Mercury Exploration Co., 121 N.M. 622, 627, 916 P.2d 822, 827 (1996). The interpretation
of statutes is a question of law that we review de novo. Jacobo v. City of Albuquerque,
2005-NMCA-105, ¶ 4, 138 N.M. 184, 118 P.3d 189.
The District Court’s Determinations
{5} The court entered findings of fact and ruled that Grandmother did not have standing.
The district court’s findings were as follows. Child was born in March 1996, Mother is his
biological mother, and Grandmother is his maternal grandmother. Grandmother was at the
hospital at the time of Child’s birth, and she testified that someone approached her and
identified herself as a social worker. Child’s grandfather testified that a woman who
identified herself as a nurse, doctor, or social worker indicated there were three possible
options concerning Child: (1) the grandparents could take Child without Mother; (2) the
grandparents could take Child and Mother; or (3) the “state” would take Child. Mother
never spoke directly to the woman, but was told by the grandparents of the choices described
by the woman. Mother was not given the option of leaving the hospital with Child. No
evidence was presented to the court to explain or justify why Mother was not given that
option other than a statement that Mother needed better living conditions. Upon release,
Mother and Child lived with the grandparents, during which time Mother was the primary
care giver of Child and grandparents provided the “roof over their heads.” Mother lived in
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Grandmother’s home with Child as a result of Grandmother’s ultimatum shortly after Child
was born.
{6} The district court made the following additional findings. Child resided with Mother
in Grandmother’s home from the time of his birth until September 1998. In September 1998,
a domestic disturbance between Mother and Grandmother led to Mother leaving
Grandmother’s home without Child. The testimony was disputed regarding when Child was
returned to Mother, and there was insufficient evidence to find that Child lived with
Grandmother for three months from September 1998 to December 1998. Under the
circumstances of the case, Grandmother lacked standing under the Act to pursue visitation
privileges.
{7} The sole issue for us on appeal is whether the district court erred in denying
Grandmother standing. The sole standing requirement with which we are concerned is that
of a three-month residence. The issue of removal was not covered in the district court’s
findings, and it is not a ground argued on appeal.
Grandmother’s Arguments on Appeal
{8} On appeal, Grandmother argues that reversal is required simply because the court
found that Child had resided with Grandmother for more than three months when he was less
than six years old. In addition, Grandmother argues that the district court improperly went
beyond the elements of Section 40-9-2(C) by considering such matters as Grandmother’s
conduct, Mother’s lack of choice, who Child’s primary caregiver was, and the factors in
Section 40-9-2(G). See Amerada Hess Corp. v. Adee, 106 N.M. 422, 424, 744 P.2d 550, 552
(Ct. App. 1987) (stating that a court cannot “add a requirement which is not provided for in
the statute”). Grandmother also argues that, having done so, the district court also violated
principles of statutory construction, namely, that the words in a statute are to be given their
ordinary meaning and that the plain language and a literal reading of Subsection (C) shows
that the court is strictly limited to an inquiry as to whether Child resided for at least three
months in Grandmother’s home before age six.
Mother’s Arguments on Appeal
{9} In her attempt to pinpoint on which question the case should turn, Mother appears
to focus substantially on the nine-year interval from the point Mother and Child left
Grandmother’s home to the point Grandmother decided to seek visitation rights in court, on
lack of any Grandmother-Child relationship, and on lack of a good relationship between
Grandmother and Mother. Mother sees Grandmother’s petition as little more than her effort
to use the legal system to create a legal relationship of love and a bond with Child that did
not exist or no longer exists. Mother also indicates that this Court is being asked to consider
a clash of interests under the Act, and she suggests that we consider whether the district
court can indulge in “overriding equitable considerations in applying a statutory analysis.”
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{10} In addition, Mother argues that the district court’s decision is in conformity with the
purposes and intent of the Act and with “the procedure by which the [Act] may be given
force in the best interest of children and families.” Mother describes the purpose of the Act
as being to continue existing relationships between a child and a grandparent where the child
could be harmed by discontinuing that relationship. She also states that the statute is to be
used as a protective shield in favor of grandparents and their grandchildren, and not as
Grandmother intends, which Mother describes as a dividing sword to allow a disgruntled
grandparent to establish a relationship after years of lack of contact with the child. Mother
further frames the question as not whether a young woman voluntarily sought shelter with
her extended family and thereby obligated herself under the statute, but instead “whether,
on the facts of this case, the roof provided ten years ago confers standing now.”
{11} Mother concedes that the court considered “certain factors related to the best interests
of [Child]” and argues that the district court had the authority under the statute to exercise
its reserve of equitable powers in domestic matters: to address intimate family relationships;
to consider the best interests of Child, the extent of any caretaker role on Grandmother’s
part, and Grandmother’s conduct and motivations; and to give consideration of relevant facts
beyond the enumerated Subsection (C) factors, including evaluating the facts under
Subsection (G) in deciding the issue of residence.
Analysis of Issues
{12} We read Subsections (C) and (G) of Section 40-9-2 to be separate, distinct provisions
that require separate proof. Subsection (C) opens the door for a grandparent to seek
visitation privileges under the Act upon threshold showings of residence and removal. Once
the Subsection (C) door is opened, Subsection (G) discusses various factors the district court
is to assess when considering the merits of a grandparent’s petition seeking visitation
privileges.
{13} In regard to Subsection (C), the requirement is that the “minor child resided with a
grandparent for a period of at least three months and the child was less than six years of age
at the beginning of the three-month period.” Section 40-9-2(C). There are no definitions,
conditions, or exceptions in the Act in regard to that residence requirement. We cannot
agree with Mother’s request that the district court be permitted to indulge in overriding
equitable considerations in applying a statutory analysis. Neither Subsection (C), nor any
other provision in the Act, nor Ridenour, permits a court to assess the residency requirement
by considering the factors in Subsection (G) or any evidence outside of the temporal
residential and age factors set out in the subsection. Nor do we see a basis under the facts
in the present case on which the court was permitted to resort to any reserve of equitable
powers in evaluating Child’s residency with Grandmother to determine standing.
{14} We understand that the district court did not think the Act should be read to saddle
Mother and Child with a grandparent visitation privilege where Mother was coerced at
Child’s birth into the circumstance in which she had no reasonable choice but to live with
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Child in Grandmother’s home. Along that line, as well, Mother argues that it would be
absurd to permit a grandparent who obtained standing by threat or duress to force a parent
into protracted and expensive litigation over the child’s best interests. There may be
instances in which standing granted under threshold statutory requirements may be denied
when the party relies on his own wrongful conduct to maintain an action. See Kaiser v.
Thomson, 55 N.M. 270, 274, 232 P.2d 142, 144 (1951) (“It is a well settled rule of law that
a person cannot maintain an action if, in order to establish his cause of action, he must rely,
in whole or in part, on an illegal or immoral act or transaction to which he is a party, or
where he must base his cause of action, in whole or in part, on a violation by himself of the
criminal or penal laws.” (internal quotation marks and citation omitted)); see also Horjales
v. Loeb, 291 So. 2d 92, 93 (Fla. Dist. Ct. App. 1974) (holding that the circuit court had a
right to dismiss the plaintiff’s case on the theory that “[o]ne who engages in a fraudulent
scheme forfeits all right to the prosecution of a [lawsuit]”); Price v. Purdue Pharma Co., 920
So. 2d 479, 484-85 (Miss. 2006) (denying the plaintiff the right to sue, based on the policy
and principle that “[n]o [c]ourt will lend its aid to a [party] who founds his cause of action
upon an immoral or an illegal act” and stating that the plaintiff’s “entire claim is wholly
rooted in his own transgressions taking place at the time his alleged injury occurred” (first
alteration in original) (internal quotation marks and citation omitted)); Hines v. Sullivan, 431
N.Y.S.2d 868, 869 (N.Y. Fam. Ct. 1980) (denying a putative father the right to sue under the
common law maxim that “a person cannot maintain a cause of action if, in order to establish
it, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he
is a party” (internal quotation marks and citation omitted)). However, because of the unique
structure of the Act and the circumstances in this particular case, we are unwilling to permit
an attack on Grandmother’s standing based on the view that Mother was coerced by threat
or duress to live with Child in the Grandmother’s home.
{15} The Act is unique in setting out relatively minimal statutory requirements for
standing to seek grandparent visitation privileges, while at the same time granting discretion
in the district court to grant or deny visitation after considering various circumstances. It
seems clear that any inequitable or wrongful conduct on the part of a grandparent can, and
presumably will, be dealt with by the district court in determining whether the grandparent
should be granted visitation privileges. We can envision circumstances, and those in the
present case may well fit within such circumstances, in which a grandparent’s inequitable
or wrongful conduct may not be sufficient in the district court’s mind to preclude some
visitation privilege. Transferring consideration of the conduct from the issue of standing to
that of visitation privilege is, in our view, the better way to deal with the issue. See In re
Custody of C.C.R.S., 872 P.2d 1337, 1342 (Colo. Ct. App. 1993) (“[W]e are unpersuaded by
the argument that a liberalized view of non-parent standing to commence custody actions
will serve to reward persons who obtain physical custody over children by criminal,
fraudulent, or other forms of misconduct. . . . We believe it unlikely that a trial court would
find it in a child’s best interest to award custody to a person who had obtained physical
custody by kidnapping, fraud, or other overreaching conduct.”), aff’d, 892 P.2d 246 (Colo.
1995). Furthermore, we are hard pressed to believe, and we see no evidence in the record
to show or any finding of fact to indicate that Mother was in any way forced through threat
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or duress to continue to reside in Grandmother’s home with Child for the two-year period
Mother and Child resided there.
{16} Nor are we able to affirm the district court’s ruling insofar as it may have been based
on a finding that Mother was the caregiver, with the implicit finding that Grandmother was
not a caregiver or the primary caregiver. We see nothing in Subsection (C) that permits the
court to deny standing based on who the primary caregiver is when a parent and child are
living in a grandparent’s home. Caregiving, as between parent and grandparent, is a factor
outside of temporal residential, age, and removal considerations. We do not see it as a factor
to be considered on the issue of standing.
CONCLUSION
{17} We hold that the district court erred in holding that Grandmother lacked standing to
seek visitation privileges, and we remand to the district court for further proceedings.
{18} IT IS SO ORDERED.
____________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
____________________________________
MICHAEL E. VIGIL, Judge
____________________________________
TIMOTHY L. GARCIA, Judge
Topic Index for French-Hesch v. French-Williams, No. 29,033
AE APPEAL AND ERROR
AE-RM Remand
AE-SR Standard of Review
CP CIVIL PROCEDURE
CP-SD Standing
DR DOMESTIC RELATIONS
DR-GR Grandparents
DR-VR Visitation Rights
ST STATUTES
ST-IP Interpretation
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ST-RC Rules of Construction
8