This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 BANI CHATTERJEE, 7 Petitioner-Appellant, 8

v. NO. 29,823 9 TAYA KING, 10 Respondent-Appellee. 11

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 Daniel Sanchez, District Judge 13 Caren I. Friedman 14 Santa Fe, NM 15 Law Office of Lynn Perls 16 N. Lynn Perls 17 Albuquerque, NM 18 for Appellant 19 Kerri L. Allensworth 20 Albuquerque, NM 21 for Appellee 22 MEMORANDUM OPINION 232 WECHSLER, Judge. 1 This case was before the district court on the petition of Bani Chatterjee, 2 Appellant, to establish parentage and determine custody and time sharing of a child 3 adopted by Taya King, Appellee, during the time that the parties lived together in a 4 domestic relationship. The parties since separated, and Appellee and the child moved 5 to Colorado. The district court dismi ssed Appellant’s petition on the basis that it 6 failed to state a claim upon wh ich relief could be granted due to Appellant’s lack of 7 standing. Appellant filed a notice of app eal, and the case has been assigned to this 8 Court’s general calendar. Appellant filed her brief in chief on December 31, 2009. 9 Appellant requested a stay and injunction pending appeal in the district court. The 10 district court granted the motion, but left the determination for further contact between 11 Appellant and the child solelyto the discretion of Appell ee. The case is before this 12 Court on Appellant’s Motion for Expedited Review of District Court’s Action on 13 Application for Stay. 14 We review the motion under Rule 12-207( D) NMRA to determine whether the 15 district court’s decision to deny the stay “( 1) is arbitrary, capricious or reflects an 16 abuse of discretion; (2) is not supported by substantial evidence; or (3) is otherwise 17 not in accordance with law.” The first and third standards are linked in that a decision 18 that is not in accordance with law is also an abuse of discretion. See Clark v. Sims , 193 2009-NMCA-118, ¶ 20, 147 N.M. 252, 219 P.3d 20 (reiterating that “we may 1 characterize as an abuse of discretion a di scretionary decision that is premised on a 2 misapprehension of the law” (internal quotation marks and citation omitted)); see also 3 Chavez v. Lovelace Sandia Health Sys., Inc. , 2008-NMCA-104, ¶ 25, 144 N.M. 578, 4 189 P.3d 711 (holding that “[a] trial court abuses its discretion when it exercises its 5 discretion based on a misunderstanding of the law”); Ferrell v. Allstate Ins. Co. , 6 2007-NMCA-017, ¶ 7, 141 N.M. 72, 150 P.3d 1022 (filed 2006) (holding that “the 7 general rule is that a distri ct court always abuses its di scretion when it makes a legal 8 error”), rev’d on other grounds , 2008-NMSC-042, 144 N.M. 405, 188 P.3d 1156. 9 We conclude that there was an abuse of discretion in this case because the 10 district court did not properly perceive its legal position with regard to the motion for 11 a stay. At the July 7, 2009 hearing on the motion, the district court stated that it 12 weighed the factors required for its analysis by Alpers v. Alpers , 111 N.M. 467, 470, 13 806 P.2d 1057, 1060 (Ct. App. 1990) (stating that , in addressing the stay of a custody 14 order, the court should consider “(1) the likelihood of hardship or harm to the children 15 if the stay is denied; (2) whether the appealis taken in good faith and the issues raised 16 are not frivolous; (3) the potential harm to th e interests of the non-moving party if the 17 stay is granted; and (4) a determination of other existing equitable considerations, if 18 any”). After weighing these factors, the district court concluded that a stay was proper 194 and granted a stay of its order dismissing th e petition. The distri ct court nevertheless 1 concluded that permitting Appellant visitation or contact w ith the child other than at 2 the sole discretion of Appellee would be in consistent with its ruling dismissing the 3 petition. 4 Although we agree with the district court that permitting contact with the child 5 by Appellant would be inconsistent with the district court’s determination that 6 Appellant had no standing in this case, we do not agree with the district court’s legal 7 understanding that the scope of the stay had to be consistent with the court’s ruling. 8 According to Black’s Law Dictionary 1453 (8th ed. 2004), stay is defined as “[a]n 9 order to suspend all or part of a judici al proceeding or a judgment resulting from that 10 proceeding.” The granting of an application for stay in a custody matter is not a 11 matter of right but rather an exercise of judicial discretion. Alpers , 111 N.M. at 469, 12 806 P.2d at 1059. In Alpers , the district court change d custody of two children from 13 the mother to the father. Id. The mother moved for a stayof the custody order, which 14 was denied by the district court. Id. Our Court reversed and stayed enforcement of 15 the custody order pending the resolu tion of the merits on appeal. Id. at 472-73, 806 16 P.2d at 1062-63. Allowing custody to remain with the mother was clearly inconsistent 17 with the district court’s order transferri ng custody to the father. Whether imposition 18 of a stay is inconsistent with an order is not the question. Rather, the district court 195 must consider the Alpersfactors and then decide if imposition of a stay is appropriate 1 under the circumstances of the particular case. Accordingly, to the extent that the 2 district court believed that in this case, any grant of visitation rights had to be 3 consistent with its ruling, the district court wa s in error. As a resu lt, the district court 4 abused its discretion in its consideration of the motion for stay pending appeal. 5 We therefore grant Appellant’s motion and remand this matter to the district 6 court with the following direction. 7 1. One of the Alpersfactors turns on “the likeli hood of hardship or harm to 8 the children if the stay is denied.” Id. at 470, 806 P.2d at 1060. Whether there should 9 be visitation and contact between the child and Appellant, and to what extent, is 10 dependent on how it affects the child, and this is a fact question to be determined by 11 the district court. 12 2. Appointment of a guardian ad litem is discretionary with the district 13 court. NMSA 1978, § 40-4-8(A) (1993). W ithin twenty-one days of entry of this 14 opinion, the district court shall hold a hearing on this issue. 15 3. If the district court determines th at a guardian ad litem is not necessary 16 in this case, a hearing on Appellant’s motion for stay, including the issue of contact 17 and visitation with the child by Appellant, sh all be held and an order entered as soon 18 thereafter as practicable. 196 4. If the district court determines that a guardian ad litem should be 1 appointed, the district court shall estab lish a timetable during which the guardian ad 2 litem should complete any required work. As soon thereafter as practicable, a hearing 3 on Appellant’s motion for stay, including the issue of contact and visitation with the 4 child by Appellant, shall be held and an order entered. 5

IT IS SO ORDERED. 6

______________________________ 7 JAMES J. WECHSLER, Judge 8 WE CONCUR: 9

_______________________________ 10 CELIA FOY CASTILLO, Judge 11

_______________________________ 12 TIMOTHY L. GARCIA, Judge 13