MAURICE SANCHEZ, District Judge.
This is an appeal from an order entered by the District Court of Roosevelt County, New Mexico, changing the custody of two minor children from their mother Mary Ann, petitioner-appellant, to their father Danny, respondent-appellee.
The dispositive findings of fact as found by the trial court, and all of which are challenged by the respondent, are the following:
Mary Ann contends that the trial court abused its discretion when it modified its decree and changed custody of the children when there is no substantial evidence of material change in circumstances which would justify such a change.
The rule is firmly established in this jurisdiction that the findings of fact of the trial court, when supported by substantial evidence, cannot be disturbed on appeal. Wilson v. Employment Security Commission, 74 N.M. 3, 389 P.2d 855 (1963). It is also well established that on appeal all disputed questions of fact must be resolved in favor of the successful party, and all reasonable inferences indulged in support of the judgment. Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568 (1963); Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083 (1958). However, the evidence must be of such substance as will establish facts from which reasonable inferences may be drawn. Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967).
We have uniformly held that in determining custody of children in a proceeding of this type, the best interests and welfare of the children should be the controlling and paramount inquiry of the court. Terry v. Terry, 82 N.M. 113, 476 P.2d 772 (1970); Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932 (1971); Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125 (1946). In proceedings to change the provisions for custody of minor children, the burden is on the moving party to convince the court that a material change in circumstances has occurred to justify a modification of the original decree. There is a presumption in favor of the reasonableness of the original judgment and decree. Merrill v. Merrill, supra; Kerley v. Kerley, 69 N.M. 291, 366 P.2d 141 (1961).
Bearing in mind the foregoing principles, we have searched the record and failed to find any evidence of a substantial
The court found, as noted above, that the relationship between Mary Ann and Ben was immoral, a bad influence on the children, and an improper atmosphere to raise minor children. It found that Mary Ann had shown instability in her attitude toward the moral training of her children "by the way she has lived with Ben Corsey," that the children would have better moral training with their father, that the children would be happier if placed in the home of Mary Ann's brother Chester Harth, and, finally, that the children will be "better reared with members of their own race."
The record is barren of any evidence to support any of these findings. We recognize that the trial court is vested with broad discretion in awarding the custody of minor children, but we cannot ignore the complete lack of evidence to support the court's findings in this case. The record, in fact, discloses clear and convincing evidence that Mary Ann and Ben have been circumspect in their relationship and at no time have acted in a way harmful to the children's welfare. The evidence is also clear and convincing that the children are in better mental and physical health than they were at the time of the dissolution of the marriage of their parents. The record shows that Ben spends much time with the children and has achieved a good and friendly relationship with them. The evidence is undisputed that the children are well-fed, clean and well-dressed, and are not in any way neglected by their mother. On the other hand, Danny is single, resides alone, and is a truck driver who spends many long hours away from home. The father's plan is to place the children in a foster home, the residence of Mary Ann's brother, Chester Harth, where the children will be deprived of the consistent personal attention of either parent.
It is clear to this court that racial considerations weighed heavily upon the trial court in ordering a change of custody in this case. We hold that racial considerations alone cannot properly determine what is in the best interests of children, or what is most consonant with their welfare or physical and mental well being. We agree with the holding in the case of In Re H., 37 Ohio Misc. 123, 66 Ohio Op.2d 178, 181, 305 N.E.2d 815, 818 (1973).
It follows from what has been said that the trial court abused its judicial discretion since its decision does not find support in the evidence, and the order changing custody of the minor children without the necessary evidentiary support should therefore be reversed.
This cause is reversed and remanded to the trial court with instructions to enter a new order setting aside the modification order entered on July 23, 1976, thus restoring
IT IS SO ORDERED.
SOSA and EASLEY, JJ., concur.