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Grant v. Cumiford3/31/2005
n stated that, having reviewed the entire file and notes from the trial and having considered all the factors required by rule, statute, and case law, it was ruling that each party pay his or her own attorney fees.
{35} By presenting the court with an affidavit, Mother sufficiently alerted the court's attention to her request for attorney fees to have preserved this issue for appeal. See Marquez v. Marquez, 74 N.M. 795, 799, 399 P.2d 282, 285 (1965) (holding that " he trial court must be alerted to a claimed non-jurisdictional error in order to preserve it for consideration on appeal"). Under NMSA 1978, § 40-4-7(A) (1997), "the determination of whether to grant an award of attorneys' fees and the amount of such award is within the discretion of the trial court and will be reviewed only to determine whether there has been an abuse of discretion." Monsanto v. Monsanto, 119 N.M. 678, 681, 894 P.2d 1034, 1037 (Ct. App. 1995). Rule 1-127 requires that the court consider relevant factors presented by the parties, including but not limited to:
A. disparity of the parties' resources, including assets and incomes;
B. prior settlement offers;
C. the total amount of fees and costs expended by each party, the amount paid from community property funds, any balances due and any interim advance of funds ordered by the court; and
D. success on the merits.
Although the court stated that it had considered these factors, because we have remanded the issue of Mother's income, we also remand this issue for the district court to determine whether disparity of income combined with success on the merits affects the earlier ruling on attorney fees. Accordingly, Mother's issue of whether she should have been given more time to prepare an argument on the issue of attorney fees is now moot.
Limiting Public Access to the Trial
{36} Mother and Father both raise issues related to the court's rulings sealing the hearing but allowing the televising, without the release of footage, of the proceedings. Less than a week before the trial on the merits, the GAL filed two motions: (1) to exclude the televised media from the hearing on the merits, and (2) to seal the hearing on the merits to protect the emotional health of the Child. The court's written orders denied the motion to exclude the media, but closed the courtroom to all persons not having a direct interest in the matter.
{37} We first address the issue raised by Mother in her brief-in-chief that the court improperly sealed the hearing on the merits. The GAL moved to seal the hearing to protect the emotional health of Child on August 18, 2003. On August 19, 2003, both Father and a local television station responded to this motion. The television station argued that the courtroom should be open and that the GAL had not met his burden of proof to close proceedings. Father's response supported the GAL's position. Mother did not respond, and the court heard the motion immediately before trial. Mother only argued very briefly about factual matters, but the issue Mother raises on appeal was clearly before the district court, as argued by the television station, and we will therefore consider Mother's issue preserved for appeal.
{38} Mother appeals only from the court's order granting the GAL's motion to seal the hearing and close the courtroom to all persons not having a direct interest in the matter. The order defined those with a direct interest as the parties, the television station representatives, and the attorneys and members of their staff working on the case. Although we note that the court's oral ruling also appeared to seal the court records, the written orde
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