Ortega v. Ortega ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 FRANKIE D. ORTEGA,
3 Petitioner-Appellant,
4 v. No. 32,347
5 JASMINE HOPE ORTEGA,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Freddie J. Romero, District Judge
9 Frankie D. Ortega
10 Fort Polk, LA
11 Pro Se Appellant
12 Barbara A. Patterson Law Firm PC
13 Barbara Ann Patterson
14 Roswell, NM
15 for Appellee
16 MEMORANDUM OPINION
17 SUTIN, Judge.
1 Frankie D. Ortega (Father) appeals from the district court’s order modifying
2 child support. This Court filed a calendar notice proposing to affirm the district
3 court’s order. Father filed a memorandum in opposition and also filed a two-page
4 letter which includes arguments in opposition to the proposed disposition in the
5 calendar notice. Therefore, we construe the letter as part of the memorandum in
6 opposition (renumbering them as pages 3 and 4 of the memorandum in opposition).
7 However, we do not consider any of the attachments to the letter that were not made
8 a part of the record in the district court. See Jemko, Inc. v. Liaghat, 106 N.M. 50, 54,
9 738 P.2d 922, 927 (Ct. App. 1987) (“It is improper to attach to a brief documents
10 which are not part of the record on appeal.”). We are not persuaded by Father’s
11 arguments and affirm the district court’s order.
12 Father’s memorandum in opposition does not respond to the proposed
13 disposition in the calendar notice regarding the use of sources other than tax return
14 information for the calculation of gross income. Therefore, his argument on this issue
15 is deemed abandoned. See N.M. Dep’t of Health v. Ulibarri, 115 N.M. 413, 414-15,
16 852 P.2d 686, 687-88 (Ct. App. 1993) (recognizing that the party opposing summary
17 disposition must specifically point out errors in fact and law or issue will be deemed
18 abandoned).
2
1 Father continues to argue that the district court’s use of the basic allowance for
2 subsistence was erroneous because the military allowance is not included in the
3 calculation of taxable income for federal income tax purposes. [MIO 1] This Court’s
4 calendar notice cited case law addressing this precise issue that specifically held that
5 “military allowances are proper sources of income that a state trial court can consider
6 in determining whether there has been a financial change of circumstances sufficient
7 to warrant an increase of child support payments.” Peterson v. Peterson, 98 N.M.
8 744, 747, 652 P.2d 1195, 1198 (1982). [CN 3] Father did not point out any error in
9 the case law or cite to contrary state law in this regard. See In re Adoption of Doe, 100
10 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that where a party cites no
11 authority to support an argument, we may assume no such authority exists).
12 In addition, Father relies on NMSA 1978, Section 40-4A-2(E)(1) and (3)
13 (1997), for the contention that his military benefits should not be included in the
14 calculation of child support. [MIO 1, 3] Section 40-4A-2(E)(1) and (3) define income
15 as not including “any amounts required by law to be withheld . . . including but not
16 limited to federal, state[,] and local taxes, social security and other retirement and
17 disability contributions” and “any amounts exempted by federal law[.]” However,
18 that statute is part of the Support Enforcement Act, NMSA 1978, §§ 40-4A-1 to -20
19 (1985, as amended through 1997), and governs the withholding of income for the
3
1 purpose of ensuring compliance with child support orders and providing for the
2 liquidation of delinquent child support payments that have accrued. See § 40-4A-3.
3 It does not apply to the actual calculation of child support benefits due from each
4 parent under the worksheet. See NMSA 1978, § 40-4-11.1(C), (K) (2008) (including
5 Worksheet B and instructions for calculation of shared responsibility).
6 Father also contends that the monetary help Jasmine Hope Ortega (Mother)
7 receives from her mother and significant other for rent and utilities should be included
8 because gross income includes significant in-kind benefits to reduce the cost of living.
9 [MIO 1 ] Father fails to address the case law cited in the calendar notice stating that
10 under the meaning of Section 40-4-11.1(C)(2), the statute relied upon by Father, gross
11 income generally does not include gifts. See Styka v. Styka, 1999-NMCA-002, ¶ 24,
12 126 N.M. 515, 972 P.2d 16 (holding “that gross income generally does not include
13 gifts under Section 40-4-11.1(C)(2)”). Therefore, we hold that the district court’s
14 decision not to include sporadic monetary gifts received by Mother did not exceed the
15 bounds of all reason. See Edens v. Edens, 2005-NMCA-033, ¶ 13, 137 N.M. 207, 109
16 P.3d 295 (“To reverse the trial court under an abuse-of-discretion standard, it must be
17 shown that the court’s ruling exceeds the bounds of all reason . . . or that the judicial
18 action taken is arbitrary, fanciful, or unreasonable.” (omission in original) (internal
19 quotation marks and citation omitted)).
4
1 Lastly, Father argues that Mother’s housing assistance from HUD, as well as
2 internet and telephone costs that he pays, should be incorporated into the calculation
3 of child support. [MIO 2, 3] Father did not raise these issues in the docketing
4 statement. Even if we construe these arguments as a motion to amend the docketing
5 statement, Father fails to explain how the issues were properly preserved or why the
6 issues were not originally raised in the docketing statement. See State v. Rael, 100
7 N.M. 193, 197, 668 P.2d 309, 313 (Ct. App. 1983) (setting out requirements for
8 accepting a motion to amend the docketing statement). It does not appear these were
9 among the issues raised by Father in the district court. [RP 153 (¶ 6)] See In re
10 Norwest Bank of N.M., N.A., 2003-NMCA-128, ¶ 30, 134 N.M. 516, 80 P.3d 9811 (stating that this Court will not search the record for evidence of preservation). “[O]n
12 appeal, the party must specifically point out where, in the record, the party invoked
13 the court’s ruling on the issue. Absent that citation to the record or any obvious
14 preservation, we will not consider the issue.” Crutchfield v. N.M. Dep’t of Taxation
15 & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273. Therefore, we do
16 not address these newly raised issues on appeal. See In re Norwest Bank,
17 2003-NMCA-128, ¶ 30 (stating that this Court will not search the record for evidence
18 of preservation).
5
1 To the extent Father asks this Court to rely upon the additional matters raised
2 in the memorandum in opposition to deviate from the district court’s original findings,
3 insofar as the request exceeds this Court’s function, we decline to do so. Cf. Getz v.
4 Equitable Life Assurance Soc'y of United States, 90 N.M. 195, 198, 561 P.2d 468, 471
5 (1977) (“It is not [the appellate courts’] function to weigh the evidence or its
6 credibility, and [the appellate courts] will not substitute [its] judgment for that of the
7 trial court as to the facts established by the evidence, so long as the findings are
8 supported by substantial evidence.”). As an appellate court, this Court is limited to
9 reviewing only the issues raised and decided by the district court. Campos Enters.,
10 Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, ¶ 12, 125 N.M. 691, 964 P.2d
11 855. To the extent that Father contends there are changed circumstances justifying a
12 modification of child support, he must seek such modification in district court.
13 For these reasons and those stated in the calendar notice, we affirm the district
14 court’s order modifying child support.
15 IT IS SO ORDERED.
16 __________________________________
17 JONATHAN B. SUTIN, Judge
18 WE CONCUR:
19 __________________________________
6
1 CELIA FOY CASTILLO, Chief Judge
2 __________________________________
3 RODERICK T. KENNEDY, Judge
7