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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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
DEBRA ANN PERRAULT, 7 a/k/a DEBRA ANN POOR, 8 Petitioner-Appellee, 9

v. NO. 30,985 10 JACOB HENRY PERRAULT, 11 Respondent-Appellant, 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 James T. Martin, District Judge 14 Isabel Jerabek 15 Las Cruces, NM 16 for Appellee 17 Jacob Henry Perrault 18 Las Cruces, NM 19 Pro Se Appellant 20

MEMORANDUM OPINION 21 VIGIL, Judge. 222 Jacob Henry Perrault (Father) appeals from the district court’s order on Dedra 1 Ann Perrault’s (Mother’s) verified motion tomodify parenting plan and time-share 2 agreement. [RP 388] The order allows Moth er to move with the children, ages five 3 and two, to Arkansas for the school year with visitation in summers and holidays to 4 Father. [Id.] The first calendar notice proposed summary reversal. [CN1] Mother 5 filed a persuasive memorandum in oppos ition, however, and the second calendar 6 notice proposed summary affirmance. [CN2] Father has filed a memorandum in 7 opposition to the second calendar notice that we have duly considered. [Father’s 8 MIO] Unpersuaded, however, we affirm. 9 DISCUSSION 10 In the docketing statement, Father contends that the district court erred in 11 refusing to allow the deposition testimony of hi s son, age five, thatMother had beaten 12 him and that she forces him to tell people that Father beats him. [DS 20] Father 13 further contends that the district court erred in refusing to allow testimony of CYFD 14 investigators that CYFD had substantiated child abuse against Mother for beating their 15 son, even though the district court apparently allowed Mother to testify that the 16 allegations were unsubstantiated. [Id.] Father also contends that the district court did 17 not give proper weight (1) to the photographs that his lawyer submitted showing the 18 bruises on his son from the beating by Mother, or (2) to Father’s argument that for the 193 safety of Children, they need to be living near Father so that he can monitor whether 1 they are being beatenby Mother. [Id.] 2 The first calendar notice proposed summary reversal on the basis that the CYFD 3 investigators’ testimony was directly relevant to the district court’s determination of 4 the best interests of Children in allo wing Mother to move to Arkansas. See Jaramillo 5 v. Jaramillo , 113 N.M. 57, 61, 823 P.2d 299, 303 (1991) (“The ‘best interests’ 6 criterion, of course, is the lodestar for determining a custody award, under both statute 7 and case law in New Mexico[.]”); see also Thomas v. Thomas , 1999-NMCA-135, ¶ 8 10, 128 N.M. 177, 991 P.2d 7 (“A court may modify a custody order only upon a 9 showing of a substantial change in circumst ances since the prior order that affects the 10 best interests of the children.”). In a ddition, the first calendar notice proposed to 11 conclude that the district court erred in quashing the notice of deposition and in 12 striking any testimony that the parties’ five-year-old son may have given simply 13 because the notice of deposition was untimel y filed. The calendar notice further 14 observed that the parties were present at the deposition, the deposition did proceed, 15 and therefore Mother had waived any objec tion she had to the untimely filing of the 16 notice. In addition, it appeared that the son’s testimony was directly relevant to the 17 district court’s determination of the best interests of Children. 184 In response to the first calendar noti ce, however, Mother filed a persuasive 1 memorandum in opposition that provided further information about the testimony at 2 the hearing. [Mother’s MIO] At the h earing, Mother disclosed that on one occasion 3 she had hit their son, that she was deeplysorry for the incide nt, that she had been 4 subject to a CYFD intervention, and th at she had complied with all of CYFD’s 5 requirements for regaining primary physicalcustody of Children. [Mother’s MIO 7] 6 Mother indicated that the son’s counselor also testified that Father had placed undue 7 stress on the son by repeatedly causing him to have to decide whom he wanted to be 8 with. [Id.] In addition, the district c ourt judge asked a CYFD investigator, who was 9 present at the hearing, whether she had anything to add to Mother’s account of the one 10 incident of abuse, or to Mother’s account of her CYFD compliance, and the 11 investigator had indicated that she had no further information. [Id.] Moreover, the 12 district court did consider the photographs that Father produced. [Mother’s MIO 5] 13 Because Father was unable to specify any other specific time that Children had been 14 in danger or produce any evidence thereof, however, the district court judge indicated 15 that he believed the one incident to be a lapse in Mother’s otherwise normally good 16 judgment. [Mother’s MIO 5-6] The district court judge also considered the 17 deposition of the son to be “an affront to th e judicial process,” because a five-year-old 185 is not capable of understanding why he is to answer in a deposition all of the questions 1 he is being asked. [Mother’s MIO 6] 2 The second calendar notice proposed to affirm. [CN2] In Father’s 3 memorandum in opposition, he argues that the son was not asked about who he 4 wanted to live with at his deposition or otherwise inappropriately questioned. 5 [Father’s MIO 1, 3-4] Father contends that Mother has obfuscated the deposition 6 issue when the son testified at the deposition th at Mother forces him to lie and to state 7 falsely that Father beat him when it was actually Mother who had beaten him. 8 [Father’s MIO 5] Father continues to argue that their five-year-old son is a competent 9 witness and that the district court s hould have allowed hi s deposition testimony. 10 [Father’s MIO 5-6] Father also assert s that Mother misrepresented the son’s 11 counselor’s testimony when the counselor merely testified generically that it would 12 be inappropriate or unduly stressful for so meone to ask a five-year-old child whom 13 he preferred to live with, not that Fath er had done so by taking the son’s deposition. 14 [MIO 6] Finally, Father contends that Mo ther misrepresented or misled this Court 15 into thinking that she had requested a change in custody from Father to Mother when 16 Children were already in her primary custody and Mother was actually requesting that 17 Children be able to move with Mother to Arkansas to live with her and her new 18 husband. [Father’s MIO 2-3] Father conte nds that Mother indicated that she would 196 have agreed to have a long distance marriag e and stay in New Mexico with Children 1 and that the district court should have ordered her to do so. [Id.] 2 Father’s contentions in his memorandum go to the credibility of the witnesses 3 and the weight to be give n to their testimony, matters for the district court to 4 determine at the hearing, not for this Court’s review on appeal. See, e.g., Buckingham 5 v. Ryan , 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a 6 conflict in the testimony, we de fer to the trier of fact.”); see also, e.g., Tallman v. ABF 7 (Arkansas Best Freight) , 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct. App. 1988) 8 (observing that, given that this Court l acks any opportunity to observe demeanor, we 9 cannot weigh the credibility of live witnesses), holding modified on other grounds by 10 Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148. 11 The district court gave full consideration to the best interests of Children in allowing 12 them to move to Arkansas w ith Mother, in retaining joint legal custody in Father and 13 Mother, and in granting Father summers and other visitation. [RP 388-91] The 14 district court weighed all the evidence rele vant to the best interests of Children, 15 including Father’s allegations and photographs, Mother’s disclosures, and Mother’s 16 affidavit concerning her actual job prosp ects, the available schools, and a family 17 support system that are available to her in Arkansas and not as available to her in New 18 Mexico. [RP 329-30] Moreover, the distri ct court did not abuse its discretion in 197 quashing the deposition testimony of the parties’ son, given his young age, the setting, 1 the subject matter of the deposition testimony, and the counselor’s generic opinion, 2 and given that the notice of deposition wa s untimely filed, Mother had made full 3 disclosures, and CYFD perso nnel were present and corroborated their intervention and 4 Mother’s compliance. See, e.g. , NMSA 1978, § 40-4-9(B) (1977) (providing that “[i]f 5 the minor is fourteen years of age or older, the court shall consider the desires of the 6 minor as to with whom he wishes to liv e before awarding custody of such a minor”); 7 see also § 40-4-9(C) (providing, in applicab le part, that “[w]henever testimony is 8 taken from the minor concerning his choice of custodian, the court shall hold a private 9 hearing in his chambers”). 10 CONCLUSION 11 We affirm the district court’s Nove mber 23, 2010 order modifying custody and 12 the parenting plan. 13 IT IS SO ORDERED. 14

_______________________________ 15 MICHAEL E. VIGIL, Judge 16

WE CONCUR: 178 _________________________________ 1 CELIA FOY CASTILLO, Chief Judge 2

_________________________________ 3 RODERICK T. KENNEDY, Judge 4