 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 BANI CHATTERJEE,

 8          Petitioner-Appellant,

 9 v.                                                                           NO. 29,823

10 TAYA KING,

11          Respondent-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Daniel Sanchez, District Judge

14 Caren I. Friedman
15 Santa Fe, NM

16 Law Office of Lynn Perls
17 N. Lynn Perls
18 Albuquerque, NM

19 for Appellant

20 Kerri L. Allensworth
21 Albuquerque, NM

22 for Appellee

23                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2        This case was before the district court on the petition of Bani Chatterjee,

 3 Appellant, to establish parentage and determine custody and time sharing of a child

 4 adopted by Taya King, Appellee, during the time that the parties lived together in a

 5 domestic relationship. The parties since separated, and Appellee and the child moved

 6 to Colorado. The district court dismissed Appellant’s petition on the basis that it

 7 failed to state a claim upon which relief could be granted due to Appellant’s lack of

 8 standing. Appellant filed a notice of appeal, and the case has been assigned to this

 9 Court’s general calendar. Appellant filed her brief in chief on December 31, 2009.

10 Appellant requested a stay and injunction pending appeal in the district court. The

11 district court granted the motion, but left the determination for further contact between

12 Appellant and the child solely to the discretion of Appellee. The case is before this

13 Court on Appellant’s Motion for Expedited Review of District Court’s Action on

14 Application for Stay.

15        We review the motion under Rule 12-207(D) NMRA to determine whether the

16 district court’s decision to deny the stay “(1) is arbitrary, capricious or reflects an

17 abuse of discretion; (2) is not supported by substantial evidence; or (3) is otherwise

18 not in accordance with law.” The first and third standards are linked in that a decision

19 that is not in accordance with law is also an abuse of discretion. See Clark v. Sims,

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 1 2009-NMCA-118, ¶ 20, 147 N.M. 252, 219 P.3d 20 (reiterating that “we may

 2 characterize as an abuse of discretion a discretionary decision that is premised on a

 3 misapprehension of the law” (internal quotation marks and citation omitted)); see also

 4 Chavez v. Lovelace Sandia Health Sys., Inc., 2008-NMCA-104, ¶ 25, 144 N.M. 578,

 5 189 P.3d 711 (holding that “[a] trial court abuses its discretion when it exercises its

 6 discretion based on a misunderstanding of the law”); Ferrell v. Allstate Ins. Co.,

 7 2007-NMCA-017, ¶ 7, 141 N.M. 72, 150 P.3d 1022 (filed 2006) (holding that “the

 8 general rule is that a district court always abuses its discretion when it makes a legal

 9 error”), rev’d on other grounds, 2008-NMSC-042, 144 N.M. 405, 188 P.3d 1156.

10        We conclude that there was an abuse of discretion in this case because the

11 district court did not properly perceive its legal position with regard to the motion for

12 a stay. At the July 7, 2009 hearing on the motion, the district court stated that it

13 weighed the factors required for its analysis by Alpers v. Alpers, 111 N.M. 467, 470,

14 806 P.2d 1057, 1060 (Ct. App. 1990) (stating that, in addressing the stay of a custody

15 order, the court should consider “(1) the likelihood of hardship or harm to the children

16 if the stay is denied; (2) whether the appeal is taken in good faith and the issues raised

17 are not frivolous; (3) the potential harm to the interests of the non-moving party if the

18 stay is granted; and (4) a determination of other existing equitable considerations, if

19 any”). After weighing these factors, the district court concluded that a stay was proper


                                               3
 1 and granted a stay of its order dismissing the petition. The district court nevertheless

 2 concluded that permitting Appellant visitation or contact with the child other than at

 3 the sole discretion of Appellee would be inconsistent with its ruling dismissing the

 4 petition.

 5        Although we agree with the district court that permitting contact with the child

 6 by Appellant would be inconsistent with the district court’s determination that

 7 Appellant had no standing in this case, we do not agree with the district court’s legal

 8 understanding that the scope of the stay had to be consistent with the court’s ruling.

 9 According to Black’s Law Dictionary 1453 (8th ed. 2004), stay is defined as “[a]n

10 order to suspend all or part of a judicial proceeding or a judgment resulting from that

11 proceeding.” The granting of an application for stay in a custody matter is not a

12 matter of right but rather an exercise of judicial discretion. Alpers, 111 N.M. at 469,

13 806 P.2d at 1059. In Alpers, the district court changed custody of two children from

14 the mother to the father. Id. The mother moved for a stay of the custody order, which

15 was denied by the district court. Id. Our Court reversed and stayed enforcement of

16 the custody order pending the resolution of the merits on appeal. Id. at 472-73, 806

17 P.2d at 1062-63. Allowing custody to remain with the mother was clearly inconsistent

18 with the district court’s order transferring custody to the father. Whether imposition

19 of a stay is inconsistent with an order is not the question. Rather, the district court


                                              4
 1 must consider the Alpers factors and then decide if imposition of a stay is appropriate

 2 under the circumstances of the particular case. Accordingly, to the extent that the

 3 district court believed that in this case, any grant of visitation rights had to be

 4 consistent with its ruling, the district court was in error. As a result, the district court

 5 abused its discretion in its consideration of the motion for stay pending appeal.

 6        We therefore grant Appellant’s motion and remand this matter to the district

 7 court with the following direction.

 8        1.     One of the Alpers factors turns on “the likelihood of hardship or harm to

 9 the children if the stay is denied.” Id. at 470, 806 P.2d at 1060. Whether there should

10 be visitation and contact between the child and Appellant, and to what extent, is

11 dependent on how it affects the child, and this is a fact question to be determined by

12 the district court.

13        2.     Appointment of a guardian ad litem is discretionary with the district

14 court. NMSA 1978, § 40-4-8(A) (1993). Within twenty-one days of entry of this

15 opinion, the district court shall hold a hearing on this issue.

16        3.     If the district court determines that a guardian ad litem is not necessary

17 in this case, a hearing on Appellant’s motion for stay, including the issue of contact

18 and visitation with the child by Appellant, shall be held and an order entered as soon

19 thereafter as practicable.


                                                5
1        4.    If the district court determines that a guardian ad litem should be

2 appointed, the district court shall establish a timetable during which the guardian ad

3 litem should complete any required work. As soon thereafter as practicable, a hearing

4 on Appellant’s motion for stay, including the issue of contact and visitation with the

5 child by Appellant, shall be held and an order entered.



6        IT IS SO ORDERED.



7                                                ______________________________
8                                                JAMES J. WECHSLER, Judge

9 WE CONCUR:



10 _______________________________
11 CELIA FOY CASTILLO, Judge



12 _______________________________
13 TIMOTHY L. GARCIA, Judge




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