This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 ROMAN CHIP, 2 Petitioner-Appellant, 3

v. No. 33,958 4 SOVANKOTHEA (THEA) CHIP 5 (n/k/a MILLS), 6 Respondent-Appellee, 7

v. 8 STATE OF NEW MEXICO, ex rel. 9 HUMAN SERVICES DEPARTMENT, 10 Intervenor. 11 APPEAL FROM THE DISTRICT COURT OF DON ̃A ANA COUNTY 12 Mary W. Rosner, District Judge 13 Caren I. Friedman 14 Santa Fe, NM 15 for Appellant 16 Grace B. Duran 17 Las Cruces, NM 18for Appellee 1

MEMORANDUM OPINION 2 FRY, Judge. 3 {1} Father appeals the district court’s alteration of a joint custody order that 4 permitted Mother to relocate with Children to Germany. Father argues on appeal that 5 the district court applied the wrong legal st andard, that the district court’s ruling 6 violates his right to due process, and that the district court abused its discretion in 7 excluding Daughter’s journal from disclosure . Because we conclude that the district 8 court applied the correct legal standard and that the exclusion of Daughter’s journal 9 was harmless error, we affirm. 10 {2} Because this is a memorandum opinion and the parties are familiar with the 11 facts and procedural history, we reserve fu rther discussion of the pertinent facts for 12 our analysis. 13 DISCUSSION 14 Standard of Review 15 {3} “A determination of custody will not be overturned on appeal absent a manifest 16 abuse of the trial court’s discretion.” Brito v. Brito , 1990-NMCA-062, ¶ 7, 110 N.M. 172 276, 794 P.2d 1205. To the extent that Fath er’s argument requires us to engage in 1 statutory interpretation, we re view such questions de novo. See Morgan Keegan 2 Mortg. Co. v. Candelaria , 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066. 3 The District Court Applied the Correct Legal Standard 4 {4} Father argues three reasons why the district court applied an incorrect legal 5 standard. First, Father argues that, under Jaramillo v. Jaramillo , 1991-NMSC-101, 6 113 N.M. 57, 823 P.2d 299, the district court failed to elicit testimony from a special 7 master or guardian ad litem as to whether the relocation was in Children’s best 8 interest. Second, Father argues that the district court substituted a “points of contact” 9 inquiry in lieu of the statutory factors it wa s required to consider. Third, Father argues 10 that courts should be required to consider additional requirements for determining 11 whether an international relocation is in a child’s best interest. We address these issues 12 in turn. 13 {5} In regard to the first issue, we disagree that the district court had a duty to sua 14 sponte consult a guardian ad litem or otherwise elicit expert testimony regarding 15 Children’s best interest where neither party requested it. In Jaramillo, our Supreme 16 Court stated that in determining the best interest of a child, “[i]t . . . becomes 17 incumbent on the trial court to consider as much information as the parties choose to 183 submit, or to elicit further informati on on its own motion [from a court-appointed 1 expert, special master, or guardian ad litem] or such other sources as the court may 2 have available, and to decide what ne w arrangement will serve the child’s best 3 interests.” 1991-NMSC-101, ¶ 27. This statement in Jaramillo does not stand for the 4 proposition that a district court has a duty as a matter of law to consult these sources. 5 Instead, in the context of the opinion, it st ands as a recognition by our Supreme Court 6 that district courts mayconsult these sources and that they can be important in 7 determining a child’s best interest. This interpretation of Jaramillo is supported by the 8 fact that the appointment of a guardian ad litem is within the discretion of the district 9 court. See NMSA 1978, § 40-4-8(A) (1993) (“In any proceeding for the disposition 10 of children when custody of minor childre n is contested by any party, the court may 11 appoint an attorney at law as guardian ad litem on the court’s motion.” (emphasis 12 added)). 13 {6} Second, although we recognize that the district court’s decision could have 14 benefitted from a more focused analysis of th e statutory factors, we conclude that the 15 basis of the decision is sound and not an abuse of discretion. In determining whether 16 to alter an existing custody arrangement, the paramount inquiry is what is in the best 17 interest of the child. NMSA 1978, § 40-4-9(A) (1977); Jaramillo , 1991-NMSC-101, 184 ¶ 13 (“The ‘best interests’ criterion . . . is the lodestar for determining a custody 1 award[.]”). Under Jaramillo , “[e]ach party [has] the burde n to persuade the court that 2 the new custody arrangement or parenti ng plan proposed by him or her should be 3 adopted by the court . . . [and] the court remains free to adopt the arrangement or plan 4 that it determines best promotes the child’s interest.” 1991-NMSC-101, ¶ 27. 5 Although neither Section 40-4-9 nor NMSA 1978, Section 40-4-9.1 (1999) 6 specifically mentions the factors a di strict court is to consider when modifying a joint 7 custody order due to an impending relocation, it seems apparent that the factors listed 8 for “determining whether a joint custody order is in the best interests of the child” 9 would include such modifications to a previous joint custody order. Section 40-4- 10 9.1(B). Therefore, the factors listed in S ections 40-4-9.1 and 40-4-9 are the relevant 11 principles of determining a child’s best interest under these circumstances. See Section 12 40-4-9.1(B) (requiring a district court to c onsider the factors listed Section 40-4-9 in 13 addition to Section 40-4-9.1’s factors). 14 {7} In this case, the district court provided two reasons for its decision. The district 15 court stated that “[C]hildren have morepoints of contact with [Mother] and 16 [Stepfather] and their two children [(Childre n’s half-siblings)] compared to [Father] 175 and the extended family and friends in New Mexico” and that “there are cultural 1 advantages in Germany and travel opportunities for [C]hildren in Europe.” 2 {8} As an initial matter, we accord no deference to the district court’s finding 3 regarding Children’s cultural opportunities in Europe. Granted, it is possible, from an 4 adult’s perspective, to romanticize th e cultural opportunities presented by living in 5 Europe. The district court certainly seemedenamored of the idea, even going so far 6 as to suggest that Father also move to Germany. However, it is doubtful that this 7 sentiment in any way compares to the signifi cant relationship interests at stake in this 8 case, not only between Children and their Father, but also between Children and their 9 extended family and other corresponding ties to the Las Cruces community. 10 Furthermore, the finding is arbitrary. These same cultural opportunities would be 11 present had the district court decided that Children should remain in New Mexico 12 during the school year and visit Mother during summer vacation. Therefore, we 13 conclude that this factor has no bearing on determining the validity of the district 14 court’s decision. 15 {9} That said, we are unconvinced that the district court’s “points of contact” 16 finding was an abuse of discretion. As the district court noted, both parents presented 17 compelling reasons as to why Children shoul d be placed in their respective homes. On 186 the one hand, Children had well-established family ties in Las Cruces and were, by all 1 accounts, positively engaged in the broader community through important friendships, 2 scholastic achievements, and religious partic ipation. On the other hand, Children have 3 two half-siblings through Mother and a positive relationship with their stepfather. 4 These considerations directly relate to st atutory factors concerning “the interaction 5 and interrelationship of the child with his [or her] parents, his [or her] siblings and any 6 other person who may significantly affect th e child’s best interest” and “the child’s 7 adjustment to his [or her] home, schooland community.” Section 40-4-9(A)(3)-(4). 8 Although the phrase “points of contact” does notappear in the st atutory factors, we 9 understand the district court’s decision to ultimately be a determination that the 10 relationship between Children and their half-siblings and, to a lesser degree, the 11 stepfather, prevailed over Children’s ties to Las Cruces. While we acknowledge that 12 reasonable minds could differ in respect to th is decision, we cannot say that the district 13 court’s determination rises to the level of an abuse of discretion. See Talley v. Talley , 14 1993-NMCA-003, ¶ 12, 115 N.M. 89, 847 P.2d 323 (“When there exist reasons both 15 supporting and detracting from a trial court deci sion, there is no abuse of discretion.”). 16 177 {10} Third, we decline to consider Father’s arguments asking this Court to impose 1 additional considerations in internati onal relocation cases. This argument was not 2 raised below, and it was therefore not preserved. See Woolwine v. Furr’s, Inc. , 1987- 3 NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To preserve an issue for review on 4 appeal, it must appear that appellant fairly invoked a ruling of the trial court on the 5 same grounds argued in the appe llate court.”). Furthermore, the factors a district court 6 utilizes in determining whether to modifya joint custody award to permit relocation 7 are statutory and, thus far, the Legislature has not seen fit to distinguish between 8 national and international relocations. 9 {11} Finally, because we disagree with Father that the district court’s decision was 10 erroneous, we further conclude that the d ecision did not violate Father’s due process 11 rights. We add, however, that any suggesti on that Mother had the choice to remain in 12 Las Cruces while her husband was stationed in Germany is as unrealistic a solution 13 as the district court’s suggestion to Father that he also move to Germany. Relocation 14 of a parent in a joint custody arrangementis an unfortunate reality. However, our 15 Legislature has provided statutory considerations for district courts to use in 16 determining the best interest of the ch ildren involved and to implement parenting 178 plans that, as much as possibl e, ensure meaningful particip ation of both parents in a 1 child’s upbringing. 2 Exclusion of Daughter’s Journal was Harmless Error 3 {12} Father argues that the district court abused its discretion in 4 prohibiting disclosure of Daughter’s journal. The journal was apparently kept between 5 Mother and Daughter. Father sought production of the journal in order to investigate 6 any communications between Mother and Daughter regarding the relocation, 7 specifically whether Mother was attempting tokeep the move secret from Father and 8 influence Daughter’s amenability to the m ove. The district court granted Mother’s 9 request for a protective order prohibiting the journal’s disclosure and further 10 preventing any mention of the journal at trial. 11 {13} “The standard of review for discovery orders is abuse of discretion.” Pincheira 12 v. Allstate Insurance Co. , 2007-NMCA-094, ¶ 27, 142 N.M. 283, 164 P.3d 982. 13 However, where a district court’s “discretionary decision is premised on the 14 construction of a privilege . . . review of that decision presents a question of law, 15 subject to de novo review.” Id. 16 {14} We first summarize the district court’s decision. The only reason given in the 17 order is that “[D]aughter’s journal is her personal property and will not be disclosed. 189 However, review of the hearing on the moti on provides further insight into the court’s 1 decision. The court indicated that the first inquiry in determining whether the journal 2 was subject to disclosure was, “Whose property is it?” In remarking that the journal 3 was the personal property of Daughter, the court explained: 4 Having been a nine-year-old daughtermyself, and having many sisters 5 and many females in my life, [and] having a journal that one shares with 6 a mother or a trusted aunt . . . this is incredibly private. Things that she 7 is only willing to disclose with another adult, who is trusted, have been 8 put in this journal. How do I know th at? I don’t know that for a fact. I do 9 know nine-year-old girls. And this is a trusted document. 10 The court then reiterated that the journal is “private and it doesn’t belong to the mom 11 and it doesn’t belong to the dad,” and, ther efore, it was not subject to disclosure. 12 {15} We are unsure where the district court got the notion that the primary inquiry 13 was determining whom the jo urnal belonged to. There did not seem to be a dispute 14 that Mother was in possession of the journal. Mother instead argued that it was not 15 subject to discovery because it was a “p ersonal and private communication between 16 Mother and Daughter.” Therefore, the primary inquiries were whether the 17 communications were relevant to the pro ceedings and, if so, whether they were 18 privileged. Rule 1-026(B )(1) NMRA (“Parties may obtain discovery of any 19 information, not privileged, which is rele vant to the subject matter involved in the 2010 pending action.”). Concluding that a co mmunication is “personal property” does 1 nothing to address these concerns. 2 {16} Furthermore, while we understand the district court’s personal anecdote 3 indicating that a nine-year-old would likely be mortified to have his or her journal 4 containing private thoughts discussed in open court, we are not aware of any provision 5 of the law that protects these types of communications as privileged. Rule 11-501(C) 6 NMRA (“Unless required by the constitution, these rules, or other rules adopted by 7 the [S]upreme [C]ourt, no person has a priv ilege to . . . refuse to produce any object 8 or writing.”). There are any number of in tensely private communications that are 9 unprotected by our rules of privilege, and compelling reasons must exist to prohibit 10 their disclosure. Rules 11-501 to 11-514 NMRA(listing specific privileges). The fact 11 that they are personal property is not , in itself, such a justification. 12 {17} Despite these misgivings regarding the district court’s decision, we conclude 13 that any alleged error was ha rmless. “In civil litigation, error is not grounds for setting 14 aside a verdict unless it is inc onsistent with substantial jus tice or affects the substantial 15 rights of the parties.” Kennedy v. Dexter Consol. Schs. , 2000-NMSC-025, ¶ 26, 129 16 N.M. 436, 10 P.3d 115 (internal quotation marks and citation omitted). The 17 complaining party carries the burden to show that the error created prejudice. Id. 1811 {18} Father argued at the hearing that the j ournal was relevant to whether Mother is 1 willing to support his relationship with Children. Father believed that evidence that 2 Mother was keeping the move secret from Father and potentially attempting to 3 influence Daughter’s feelings about the m ove would show that she is not willing to 4 do so. Father argued that the district court had to consider each parent’s willingness 5 and ability to allow the other parent’s relationship to flourish. While not technically 6 correct, this consideration is encapsulated by Sections 40-4-9.1(B)(5) and (8), which 7 direct the court to consider “whether each parent is able to allow the other to provide 8 care without intrusion, that is, to respect the other’s parental rights and responsibilities 9 and right to privacy . . . [and the] willingne ss or ability of the parents to communicate, 10 cooperate or agree on issues regarding the child’s needs[.]” 11 {19} We are unconvinced, however, that disclo sure of the journal would have had 12 any meaningful effect on the outcome of th is case. While the district court did not 13 allow discussion of the journal, the district court did allow counsel to cross-examine 14 Mother regarding her communications withDaughter about the move. Both parents 15 testified to their history of cooperation, albeit with some expected difficulties, in 16 ensuring that each had “predictable, frequent contact” with Children and a 17 commitment to ensuring that the same level of cooperation exists in the future. Section 1812 40-4-9.1(B)(4). In fact, Father testified that the parents have good communication and 1 agreed that good communication is inconsiste nt with a claim of parental alienation. 2 Likewise, both Mother and her husband acknowledged that Father was a very devoted 3 father, had strong bonds with Children, and that Children had expressed apprehension 4 about the move. Such testimony, particularlyon the part of Mother, is inconsistent 5 with a claim that Mother was attempting to influence Daughter’s attitude toward the 6 move or to create alienation in the father /daughter relationship. Because those issues 7 did not appear to be in dispute, production of the journal and discussion of its contents 8 was of little value in these proceedings. Acco rdingly, we concludethat the error was 9 harmless. 10 CONCLUSION 11 {20} For the foregoing reasons, we affirm the district court. 12 {21} IT IS SO ORDERED. 13

_________________________ 14 CYNTHIA A. FRY, Judge 15

WE CONCUR: 16

____________________________ 17 JAMES J. WECHSLER, Judge 1813 ____________________________ 1 LINDA M. VANZI, Judge 2