Pacheco v. Pacheco ( 2015 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PATSY M. PACHECO,
3 Petitioner-Appellee,
4 v. NO. 34,646
5 WIL B. PACHECO,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Gerard J. Lavelle, District Judge
9 Loretta Lopez
10 Albuquerque, NM
11 for Appellee
12 Carter & Valle Law Firm, P.C.
13 Linda L. Ellison
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Chief Judge.
18 {1} Appellant, Wil Pacheco, appeals from the district court’s minute order
19 modifying spousal support, as well as from the district court’s memorandum order
1 awarding attorney fees to Appellee, Patsy Pacheco. This Court issued a calendar
2 notice proposing summary affirmance. Appellant has filed a memorandum in
3 opposition to this Court’s notice of proposed disposition, which we have duly
4 considered. Unpersuaded, we affirm.
5 {2} Appellant, originally ordered in 2009 to pay Appellee $2000 per month in
6 modifiable spousal support, moved in 2014 to terminate spousal support, or in the
7 alternative, to decrease the amount of spousal support he owed, on the basis of his
8 changed circumstances. [CN 2] Specifically, these changed circumstances included
9 the closure of his dental practice—and concomitant reduction in income—and his
10 deteriorating health. [CN 2] The district court, finding that Appellant met his burden
11 in showing a change in circumstances, and after taking testimony and evidence on the
12 respective parties’ budgets, reduced the amount of spousal support to $1200 per
13 month. [CN 2]
14 {3} On appeal, Appellant contends that the reduction in spousal support to $1200
15 per month constituted an abuse of discretion on the part of the district court. [CN 3;
16 DS 5-6] In our calendar notice, we noted that Appellant had not even attempted to
17 demonstrate that the district court’s reduction of his required spousal support from
18 $2000 to $1200 was “contrary to all reason.” [CN 4] Consequently, we proposed to
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1 conclude that Appellant had not met his burden on appeal. [CN 4] See Corona v.
2 Corona, 2014-NMCA-071, ¶ 26, 329 P.3d 701 (“The appellate court presumes that
3 the district court is correct, and the burden is on the appellant to clearly demonstrate
4 that the district court erred.”). Appellant’s memorandum in opposition does not point
5 to any specific errors in fact or in law in our calendar notice. See Hennessy v. Duryea,
6 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
7 held that, in summary calendar cases, the burden is on the party opposing the
8 proposed disposition to clearly point out errors in fact or law.”).
9 {4} Instead, in response to our suggestion that he had not—through the bare
10 recitation of facts tracking his proposed findings of fact—sufficiently attacked the
11 district court’s findings of fact [CN 4], Appellant now contends that the district court
12 erred in determining the amount of his income [MIO 3]. Specifically, Appellant states
13 that the district court abused its discretion in not deducting from his income an
14 automatic monthly $300 student loan payment for his “adult child.” [MIO 3]
15 However, Appellant does not provide any authority in support of his contention that
16 this decision was an abuse of discretion. Therefore, we are not convinced that the
17 district court erred with respect to this issue. See Curry v. Great Nw. Ins. Co., 2014-
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1 NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an
2 argument, we may assume no such authority exists.”).
3 {5} We note that Appellant, in his memorandum in opposition, states that
4 “[b]riefing is where an appellant can set forth with specific detail how the [district]
5 [c]ourt’s findings were an abuse of discretion.” [MIO 3] To the extent that Appellant
6 is saving or holding back information bearing on the issues raised in his docketing
7 statement for use in his brief-in-chief, Appellant misapprehends this Court’s rules
8 regarding cases placed on the summary calendar. See Rule 2-210 NMRA (outlining
9 this Court’s calendaring procedure); see also State ex rel. State Highway & Transp.
10 Dep’t of N.M. v. City of Sunland Park, 2000-NMCA-044, ¶ 15, 129 N.M. 151, 3 P.3d
11 128 (noting that the docketing statement takes the place of full briefing when a case
12 is decided on the Court’s summary calendar), cert. denied, 2014-NMCERT-003, 324
13 P.3d 375.
14 {6} However, regardless of whether Appellant’s income was $5318 per month, as
15 found by the district court [CN 3], or $5018 per month, as alleged by Appellant [DS
16 4; MIO 3], Appellant has not met his burden in demonstrating error in the district
17 court’s decision to reduce the amount of spousal support by $800 per month.
18 “[M]erely identifying the existence of evidence which may have tended to support a
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1 different outcome does not demonstrate an abuse of discretion.” Camino Real Envtl.
2 Ctr., Inc. v. N.M. Dep’t of the Env’t (In re Camino Real Envtl. Ctr., Inc.), 2010-
3 NMCA-057, ¶ 23, 148 N.M. 776, 242 P.3d 343. This is especially true in light of the
4 fact that Appellant, in the context of his argument that the district court erred in
5 awarding attorney fees to Appellee, asserts not only that he prevailed in his motion
6 by having the spousal support reduced by $800 per month [MIO 4], but also that he
7 was “successful in obtaining the relief he requested[.]” [DS 8]. Therefore, we are not
8 convinced that the district court erred in reducing the spousal support agreement by
9 $800 per month.
10 {7} Appellant also continues to argue that the district court erred in awarding
11 attorney fees to Appellee. [MIO 3-4] In our calendar notice, we suggested that the
12 district court did not err, given its consideration of the four factors under Rule 1-127
13 NMRA, and especially based on its finding of a gross disparity in income between
14 Appellant and Appellee. [CN 6-7] Again, we note that Appellant’s memorandum in
15 opposition does not point to any specific errors in fact or in law in our calendar
16 notice.
17 {8} Instead, Appellant now contends that the district court abused its discretion by
18 imposing a burden on him to make a settlement offer, stating that the district court
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1 “cited no authority” for its conclusion of law. [MIO 4] On appeal, however, the
2 reviewing court presumes that the district court is correct, and the burden is on the
3 appellant to clearly demonstrate that the district court is incorrect. See Corona, 2014-
4 NMCA-071, ¶ 26. Appellant has provided no authority to support his contention that
5 the district court abused its discretion in its analysis of the Rule 1-127 settlement
6 offer factor. Where a party cites no authority to support an argument, we may assume
7 no such authority exists. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
8 676 P.2d 1329. Appellant has therefore not met his burden on this issue.
9 {9} Finally, Appellant contends that the district court “clearly brought in past
10 issues to bear on the [c]ourt’s perception of . . . Appellant” and that there were
11 “unwarranted extrapolations together with commentary on the record, that would
12 indicate this ruling appears to be a prejudgment on the issue of attorney fees.” [MIO
13 4] We note, however, that this argument was not raised in Appellant’s docketing
14 statement and Appellant did not move to amend the docketing statement to add this
15 issue. See Rule 12-208(F) NMRA (permitting the amendment of the docketing
16 statement based upon good cause shown); State v. Rael, 1983-NMCA-081, ¶¶ 15-16,
17 100 N.M. 193, 668 P.2d 309 (setting out requirements for a successful motion to
18 amend the docketing statement). To the extent that we might construe the addition of
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1 this argument as a motion to amend the docketing statement, Appellant has failed to
2 demonstrate—through his one sentence reference to prejudgment—that he meets the
3 requirements for granting a motion to amend. Therefore, we are not convinced that
4 we were incorrect in determining that the district court did not err in awarding
5 attorney fees to Appellee.
6 {10} For these reasons, and those in our calendar notice, we affirm.
7 {11} IT IS SO ORDERED.
8 _______________________________
9 MICHAEL E. VIGIL, Chief Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 RODERICK T. KENNEDY, Judge
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