Minteer v. Sudlow ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 MARK MINTEER,
8 Petitioner-Appellee,
9 v. NO. 30,019
10 DIANE SUDLOW,
11 Respondent-Appellant
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Elizabeth E. Whitefield, District Judge
14 Sutin, Thayer & Browne, P.C.
15 Derek V. Larson
16 Kerry C. Kiernan
17 Albuquerque, NM
18 for Appellee
19 Diane J. Sudlow
20 Albuquerque, NM
21 Pro Se Appellant
22 MEMORANDUM OPINION
23 FRY, Chief Judge.
24 Mother appeals from the district court’s order on child support. We proposed
25 to affirm in a calendar notice, and Mother has responded with a memorandum in
1 opposition. We have duly considered Mother’s arguments, but we are not persuaded
2 by them. We affirm the district court’s decisions.
3 Mother filed a memorandum in opposition to our calendar notice on April 5,
4 2010. On April 8, 2010, Mother filed a motion to amend her memorandum in
5 opposition and an amended memorandum in opposition. Initially, we point out that
6 Mother’s amended memorandum in opposition was not timely under our rules, and
7 in any event, our appellate rules do not allow for the filing of an amended
8 memorandum in opposition. See Rule 12-210 NMRA. Futhermore, the additions
9 made to the memorandum in opposition refer to authorities from other jurisdictions
10 or legal publications, but Mother fails to explain how these arguments were preserved
11 in the district court. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717,
12 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that
13 appellant fairly invoked a ruling of the trial court on the same grounds argued in the
14 appellate court.”); see also State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175
15 P.3d 942 (filed 2007) (stating that the primary purposes for the requirement of
16 preservation are to specifically alert the trial court to claimed error so any mistake can
17 be corrected, to allow the opposing party an opportunity to respond to the claim of
18 error, and to create a record sufficient for review by the appellate court). As discussed
19 in our calendar notice and in this opinion, the district court’s decisions regarding child
20 support and attorney fees were in compliance with New Mexico law, and we therefore
21 find it unnecessary to look at law from other jurisdictions, particularly because there
22 is nothing to show that the arguments were preserved for purposes of appeal. For
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1 these reasons, we deny Mother’s motion to amend her memorandum in opposition and
2 we do not consider the arguments made in the amended memorandum in opposition.
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4 Mother continues to argue that the district court erred in calculating Father’s
5 income for purposes of child support. Father is a shareholder in a Subchapter S
6 corporation. According to Mother, Father’s income should include shareholder
7 distributions, quarterly bonuses, income retained by the corporation, and
8 “unaccounted for” deposits. As discussed in our calendar notice, the district court
9 heard testimony regarding the monies that Mother contended should be considered as
10 income to Father, and that testimony was determined to be credible. The testimony
11 showed that distribution from retained earnings are used for payment of a life
12 insurance policy on his partner’s life, as required by the shareholders’ agreement, and
13 Father was paid bonuses, included in his wages, for the cost of the life insurance
14 premiums. [RP 674] The testimony showed that shareholder distributions were for
15 payment of taxes on the corporation’s earnings. [RP 676] The testimony showed that
16 retaining earnings in the corporation is a prudent business decision where revenues
17 are inconsistent, and employees must be paid during low revenue months. [RP 676-
18 77] The testimony showed that the “unaccounted for” deposits were from sales and
19 savings, and were used to finance the lawsuit. [RP 677] As explained in our calendar
20 notice, the district court found, for various reasons, that the monies should not be
21 included as income to Father.
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1 Mother argues that the findings by the district court were not supported because
2 there was conflicting or inconsistent testimony, there was manipulation of finances
3 and shielding of income, and there were certain statements that were not supported by
4 documentation or expert testimony. We reiterate that child support calculations are
5 within the discretion of the district court, and we review the district court’s findings
6 on income to determine whether they are supported by substantial evidence. Quintana
7 v. Eddins, 2002-NMCA-008, ¶ 9, 131 N.M. 435, 38 P.3d 203 (filed 2001).
8 Application of the law to the facts is de novo. N.M. Right to Choose/NARAL v.
9 Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450. In our calendar notice,
10 we conducted a detailed review of the findings and conclusions in this case, and
11 proposed to conclude that the district court did not commit error in its calculation of
12 the income of the parties. In her memorandum in opposition to our calendar notice,
13 Mother makes similar arguments to those made in the docketing statement. We do
14 not find Mother’s arguments in opposition to our proposed disposition to be
15 persuasive. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955
16 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the
17 burden is on the party opposing the proposed disposition to clearly point out errors in
18 fact or law.”). We therefore affirm the district court’s income determinations.
19 In her memorandum in opposition, Mother claims that Father uses the company
20 vehicle for personal use, while she must pay for her own vehicle and vehicle expenses,
21 and therefore, the company vehicle and costs to run and maintain the company vehicle
22 should be considered income to Father. [MIO 4-5] Mother did not include this
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1 argument in her docketing statement. There was testimony that supported the district
2 court’s determination that the company vehicle should not be imputed as income to
3 Father. The testimony showed that Father did not have personal use of the vehicle and
4 that, in four years, Father only occasionally used the vehicle to transport the parties’
5 child. [MIO 4-5; RP 677-78] Therefore, to the extent that Mother is attempting to
6 amend her docketing statement to add this argument, we hold that the issue is not
7 viable and we deny her motion to amend the docketing statement. See State v. Moore,
8 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), superceded by rule on other
9 grounds as recognized in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App.
10 1991) (stating that appellate court will deny motions to amend that raise issues that are
11 not viable, even if they allege fundamental or jurisdictional error).
12 Mother continues to claim that it was an abuse of discretion for the district court
13 to order that each party pay “his or her respective attorneys fees and costs.” [RP 717]
14 See Monsanto v. Monsanto, 119 N.M. 678, 681, 894 P.2d 1034, 1037 (Ct. App. 1995)
15 (reviewing award of attorney fees for abuse of discretion). The order was based on
16 cross-motions by the parties and affidavits. As discussed in our calendar notice, the
17 district court considered the factors under Rule 1-127 NMRA. We noted that Mother
18 did not demonstrate error by the district court and pointed out that the record showed
19 a number of show cause motions, and one order finding Mother in contempt.
20 In her memorandum in opposition, Mother continues to argue, as argued in her
21 motion or stated in her affidavit, that there is a disparity in the parties’ incomes and
22 that she has no assets to pay attorney fees. [RP 693; 699] Mother claims that Father
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1 conferred with his attorney more than she conferred with her attorney, indicating that
2 Father is the more litigious party. [MIO 9-10] Mother also provides an explanation
3 for the reason she was held in contempt of court and states that she does not believe
4 she was sanctioned for misunderstanding that she should provide Father with
5 documents that she alleges he already possessed. [MIO 8-9] As noted above, the
6 district court considered the factors under Rule 1-127 when deciding the attorney fees
7 issue. Mother’s arguments do not persuade us that the district court abused its
8 discretion in awarding attorney fees to neither party. We affirm the district court’s
9 decision on attorney fees and costs.
10 Mother does not respond to our proposed disposition with regard to the tax
11 deduction. Frick v. Veazey, 116 N.M. 246, 247, 861 P.2d 287, 288 (Ct. App. 1993)
12 (“Failure to file a memorandum in opposition constitutes acceptance of the disposition
13 proposed in the calendar notice.”). We affirm on this issue.
14 CONCLUSION
15 For the reasons discussed in this opinion and in our calendar notice, we affirm
16 the decisions of the district court.
17 IT IS SO ORDERED.
18
19 CYNTHIA A. FRY, Chief Judge
20 WE CONCUR:
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1
2 MICHAEL E. VIGIL, Judge
3
4 TIMOTHY L. GARCIA, Judge
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