Baca v. Baca ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 RONALD ROBERT BACA,
3 Petitioner-Appellant,
4 v. No. 32,223
5 SUSAN ANN BACA,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Elizabeth E. Whitefield, District Judge
9 Oldaker, Norris & Rockwell, LLC
10 Linda Rockwell
11 Albuquerque, NM
12 for Appellant
13 L. Helen Bennett, P.C.
14 L. Helen Bennett
15 Albuquerque, NM
16 for Appellee
17 MEMORANDUM OPINION
1 BUSTAMANTE, Judge.
2 {1} Ronald Robert Baca (Petitioner) appeals the district court’s denial of his motion
3 to modify child and spousal support. Concluding that the district court did not err in
4 determining that Petitioner was voluntarily unemployed and imputing income to him,
5 we affirm. We remand to the district court for entry of findings and conclusions
6 related to child support payments and calculation of attorney fees.
7 BACKGROUND
8 {2} Petitioner and Susan Ann Baca (Respondent) married in 1990. They have three
9 children. They were divorced nearly twenty years later in March 2010. The
10 proceedings relevant to the current matter include (i) the dissolution of marriage
11 proceedings, (ii) a modification of child support one year after the dissolution, and
12 (iii) the proceedings leading to the current appeal.
13 {3} In the dissolution of marriage proceedings, the district court made findings
14 related to Petitioner’s conduct during discovery, the nature and division of the
15 “Heartland” business, and Petitioner’s income. We outline the findings in each of
16 these categories as they relate to the current matter. The district court appointed a
17 special master to advise the district court on the valuation of assets and income or
18 potential income of the parties. Citing Petitioner’s “fail[ure] to provide [the special
19 master] with . . . information [he has] requested[,]” the special master filed a motion
2
1 to compel and for order to show cause. The district court granted the motion and
2 ordered Petitioner to comply with the special master’s request. In its dissolution
3 order, the district court stated that it was “very concerned regarding Petitioner’s
4 persistent and continued pattern of non-compliance with discovery” and “Petitioner
5 has failed to disclose assets, and[,] in fact, may have successfully hidden assets.” It
6 also referenced a bill for document shredding services which Respondent testified she
7 discovered after the petition for dissolution was filed.
8 {4} The district court also made findings about Petitioner’s business known as
9 “Heartland.” It found that “Petitioner’s business known now as ‘Heartland’ is . . . an
10 existing asset” but also noted that “Petitioner maintains that he derives no income
11 from ‘Heartland.’ ” The district court found that Heartland was Petitioner’s sole and
12 separate property and that “[a]ny ‘Heartland’ income, earned by Petitioner, can be
13 used to pay spousal support to . . . Respondent.” Finally, the district court found that
14 although “Petitioner has consistently stated that he is not generating any income[,] he
15 is completely indigent, and that all business ventures are failing at this time[,]” it also
16 found that “[this] position is contradicted by . . . discovery . . . and by the information
17 revealed by the [s]pecial [m]aster’s investigation and research.” It stated that
18 “Petitioner did concede that he is capable of making approximately $90,000 per year.”
19 The district court found that “[a]lthough . . . the [s]pecial [m]aster finds that
3
1 Petitioner’s income earning potential should be imputed at $200,000[] per year, in
2 doing equity, and in considering the current financial market, the [district c]ourt finds
3 that Petitioner is fully capable of earning $150,000[] per year[.]” It thus imputed a
4 monthly income of $12,500. It concluded that “both child support and spousal
5 support should be calculated on this amount.” Based on these findings, Petitioner was
6 ordered to pay $2500 per month in child support and $1500 per month in spousal
7 support. Petitioner did not appeal the district court’s findings and conclusions.
8 {5} Approximately one year later, in April 2011, the child support order was
9 modified upon Petitioner’s motion. The hearing officer found that “[t]here is
10 insufficient evidence to modify Petitioner’s imputed income of $12,500 per month.”
11 But he recommended reduction of the child support obligation to $1683 per month
12 based on changes in the primary physical custody of two of the children. He also
13 found that child support arrearages totaled $12,860, plus interest, and spousal support
14 arrearages totaled $12,000, plus interest. The hearing officer’s recommendations were
15 adopted by the district court.
16 {6} The present matter was initiated in November 2011 when both Petitioner and
17 Respondent filed motions to modify the child support order, among other
18 arrangements. Respondent argued that modification was appropriate because “the
19 oldest child . . . ha[d] reached the age of majority . . . and the parties’ [other] children
4
1 are living solely with Respondent.” She also requested sole legal and physical custody
2 of the two youngest children. Respondent also filed a motion to show cause why
3 Petitioner should not be held in contempt for failure to pay court-ordered child support
4 and spousal support. Petitioner argued that modification of child and spousal support
5 was appropriate because “[h]e ha[d] been unable to find employment of any sort, and
6 he is currently enrolled as a full-time student in the [Master’s degree in business
7 administration (MBA)] program at New Mexico Highlands University where he is
8 attempting to obtain a[] degree to allow him to find employment.”
9 {7} After a hearing, the district court made 103 findings of fact. Respondent’s
10 motion for sole legal and physical custody was denied based on the district court’s
11 finding that “[a] change from joint legal custody to sole legal custody does not fix the
12 problem of inconsistent and haphazard paternal contact with the children.”
13 {8} Petitioner’s motion was also denied. Relevant to Petitioner’s appeal, the district
14 court found that (i) “[Petitioner] is voluntarily underemployed and unemployed”; (ii)
15 “[Petitioner] . . . has resources of $100,000 available from Heartland, an investment
16 he owns. [Petitioner] testified this [is] a loan and that he may be required to repay the
17 loan if claims are made”; (iii) Petitioner has two checking accounts, one of which was
18 the Heartland account; (iv) Petitioner used the Heartland account for personal
19 expenses, including travel, during the same period that he did not pay his child and
5
1 spousal support obligations; (v) “[Petitioner] testified that the remaining amount he
2 can ‘borrow’ from Heartland is $100,000”; (vi) Petitioner paid over $15,000 for the
3 children’s expenses between January 2011 and January 2012, which “is laudable but
4 does not constitute child support or any credit against child support. It does support,
5 however, [Petitioner’s] ability to access funds when he chooses”; (vii) “[Petitioner]
6 can certainly earn as much as [Respondent;]”; and (viii) Petitioner owed $33,000 and
7 $13,736 in spousal support and child support arrearages, respectively. The district
8 court concluded that “[t]here is no material change in circumstances which warrants
9 a modification in the amount of child support or spousal support.” Petitioner was also
10 found in contempt of court for failure to pay child and spousal support.
11 {9} Petitioner makes a number of interwoven allegations of error in the second
12 modification proceeding. Petitioner argues that the district court erred when it failed
13 to consider Petitioner’s efforts to become employed, imputed to him the amount
14 available through the Heartland business, failed to determine Respondent’s actual
15 need for spousal support, miscalculated the amount of child support arrearages, and
16 ordered him to obtain life insurance. We address these arguments in turn.
17 DISCUSSION
18 {10} Petitioner’s first two issues have to do with when and how the district court may
19 impute income to a parent for the purposes of setting child support payments. “The
6
1 setting of child support is left to the sound discretion of the [district] court as long as
2 that discretion is exercised in accordance with the child support guidelines.”
3 Quintana v. Eddins, 2002-NMCA-008, ¶ 9, 131 N.M. 435, 38 P.3d 203. “Findings
4 made by the district court about the parents’ incomes, as required by the guidelines
5 to apportion child support, are reviewed to determine whether they are supported by
6 substantial evidence. Questions of law are reviewed de novo.” Grant v. Cumiford,
7 2005-NMCA-058, ¶ 21, 137 N.M. 485, 112 P.3d 1142 (citations omitted).
8 {11} Determination of child support is governed by NMSA 1978, Sections 40-4-11
9 to 11.6 (1971, as amended through 2008). When a court has ordered child support,
10 the order may be modified only “upon a showing of material and substantial changes
11 in circumstances subsequent to the adjudication of the pre-existing order.” Section
12 40-4-11.4(A). If a motion for modification is filed at least one year after entry of the
13 order and recalculation of the child support obligation results in a twenty percent
14 variance from the existing child support obligation, “[t]here shall be a presumption of
15 material and substantial changes in circumstances.” Id. Section 40-4-11.1 sets out the
16 guidelines for calculation of child support. In order to apply these guidelines, the
17 district court must first determine the gross income of each parent. See § 40-4-
18 11.1(E), Worksheets A and B; Perkins v. Rowson, 110 N.M. 671, 674, 798 P.2d 1057,
19 1060 (Ct. App. 1990) (“Section 11.1 requires the court to use the method set out in the
7
1 statute to calculate a parent’s support obligation and declares that there is a rebuttable
2 presumption that the amounts derived from these calculations are the amount of the
3 support obligation.”). Section 40-4-11.1(C)(1) defines “income” as “actual gross
4 income of a parent if employed to full capacity or potential income if unemployed or
5 underemployed.” Subsection (C)(2) goes on to define “gross income” as
6 income from any source and includes but is not limited to income from
7 salaries, wages, tips, commissions, bonuses, dividends, severance pay,
8 pensions, interest, trust income, annuities, capital gains, social security
9 benefits, workers’ compensation benefits, unemployment insurance
10 benefits, disability insurance benefits, significant in-kind benefits that
11 reduce personal living expenses, prizes[,] and alimony or maintenance
12 received[.]
13 {12} Thus, under the statute, the court may impute income to a parent for purposes
14 of calculation of child support if it determines that the parent is underemployed or
15 unemployed. Our case law makes clear, however, that the imputation of income based
16 on underemployment or unemployment depends on whether the parent is
17 underemployed or unemployed in an effort to avoid child support, i.e., whether the
18 parent is acting in good faith. See Boutz v. Donaldson, 1999-NMCA-131, ¶ 6, 128
19 N.M. 232, 991 P.2d 517. “ ‘[G]ood faith’ . . . means acting for a purpose other than
20 to reduce or avoid a child support obligation. [When] a parent does not act primarily
21 to affect a child support obligation, the relevant inquiry is whether the parent’s career
22 choices are reasonable under the circumstances.” Quintana, 2002-NMCA-008, ¶ 17
8
1 (citation omitted). The parent claiming an inability to pay child support bears the
2 burden to demonstrate inability. Thomasson v. Johnson, 120 N.M. 512, 516, 903 P.2d
3 254, 258 (Ct. App. 1995).
4 Voluntary Underemployment or Unemployment
5 {13} Petitioner’s first argument is that the district court erred when it determined that
6 he was voluntarily under or unemployed. He makes a number of assertions on this
7 issue. He contends that “[t]he [district] court made no finding that [Petitioner] was
8 voluntarily unemployed or underemployed, and that was error” and that “the [district]
9 court failed to take into consideration [Petitioner’s] efforts to find employment.”
10 These assertions are contradicted by the record. In fact, the district court found
11 specifically that “[Petitioner] is voluntarily underemployed and unemployed.” In
12 addition, it acknowledged Petitioner’s testimony that he had submitted his resume to
13 over 300 “executive search firms” and enlisted the assistance of professional resume
14 writers and that he had not received any job offers. The district court noted
15 Petitioner’s testimony that “he returned to school to get an MBA because he believes
16 it will increase his chances of employability.” Finally, it concluded that “[Petitioner]
17 is not making a good faith effort to find employment since the parties[’] divorce.”
18 {14} Petitioner also argues that because Respondent did not present evidence of
19 available jobs appropriate for Petitioner, “all of the evidence was that [Petitioner] had
9
1 not been able to find any job at all.” To the extent that Petitioner’s argument is that
2 Respondent was required to prove that he was acting in bad faith, this is incorrect.
3 Section 40-4-11.1(C)(1) creates a presumption that a parent will earn income based
4 on full-time employment. See Styka v. Styka, 1999-NMCA-002, ¶ 35, 126 N.M. 515,
5 972 P.2d 16. It was Petitioner’s burden to demonstrate his inability to do so.
6 Thomasson, 120 N.M. at 516, 903 P.2d at 258.
7 {15} In addition, Petitioner maintains that since the only evidence at the hearing was
8 his testimony about his efforts to find a job, there was insufficient evidence for the
9 district court to find that he was voluntarily unemployed and to conclude that his
10 efforts were not in good faith. This position ignores both Petitioner’s burden and the
11 role of the district court in assessing the credibility of evidence presented by the party
12 with the burden of proof. “It is for [district] court to weigh the testimony, determine
13 the credibility of witnesses, reconcile inconsistent statements[,] and determine where
14 the truth lies.” Lopez v. Adams, 116 N.M. 757, 758, 867 P.2d 427, 428 (Ct. App.
15 1993). “If a finding is made against the party with the burden of proof, we can affirm
16 if it was rational for the [district] court to disbelieve the evidence offered by that
17 party.” Id. Even when testimony is not contradicted, the district court is not required
18 to accept it “if . . . the witness is shown to be unworthy of belief, or . . . his testimony
19 . . . contains inherent improbabilities, or [there is] reasonable doubt as to its . . .
10
1 veracity[] by legitimate inferences drawn from the facts . . . of the case.” State v.
2 Lovato, 112 N.M. 517, 521, 817 P.2d 251, 255 (Ct. App. 1991). It is clear from the
3 district court’s findings of fact, conclusions of law, and order that it did not believe
4 Petitioner’s testimony that he was actively seeking employment in good faith. See
5 Thomasson, 120 N.M. at 514, 903 P.2d at 256. Our inquiry, then, is whether it was
6 rational for the district court to disbelieve Petitioner’s testimony to the contrary.
7 {16} In addition to the testimony above, the district court heard testimony that during
8 the marriage Petitioner had worked as an entrepreneur in the construction and
9 mortgage industries and that his last employment was as a consultant from 2005 to
10 2007 for which he was paid $7,500 per month. Respondent testified that Petitioner
11 had owned a mortgage company during the marriage. Petitioner testified that he had
12 sent his resume to over 300 firms but did not provide documentation of the firms to
13 which he had applied or of the “executive search firms” he had contacted nor did he
14 provide information about specific jobs for which he had applied. He stated that he
15 was open to any kind of work but also stated that he was not using the internet to
16 search for jobs and chose to rely instead on his network of contacts and that he had not
17 had a job interview. Finally, Petitioner testified that he was not looking for work
18 while a student in the MBA program. Reviewing the entirety of the testimony, we
19 conclude that the testimony, though uncontradicted, could raise “reasonable doubt as
11
1 to its . . . veracity[] by legitimate inferences drawn from the facts” and thus it was
2 rational for the district court to disbelieve Petitioner’s testimony that he was actively
3 seeking work in good faith. Lovato, 112 N.M. at 521, 817 P.2d at 255.
4 {17} Petitioner also argues that enrollment in the MBA program full time “is a
5 change of circumstance which the court may consider . . . when addressing a motion
6 to modify support” and that child support should be reduced based on that change.
7 The district court noted Petitioner’s testimony about his decision to return to school.
8 It stated that “[Petitioner] testified that he returned to school to get an MBA because
9 he believes it will increase his chances of employability.” It also acknowledged
10 Petitioner’s testimony “that he was a full-time graduate student . . . in order to earn an
11 MBA, which he hoped would make him employable, and . . . that he hoped to
12 graduate . . . in December 2012.” Finally, the district court noted that “[Petitioner]
13 produced evidence that he had been enrolled as a full[-]time graduate student . . . since
14 spring semester 2011, produced evidence that he was maintaining a 4.0 grade point
15 average, and produced a substantial rough draft of a Master’s thesis.”
16 {18} Petitioner is correct that a return to school “may constitute a material change in
17 circumstances that warrants a reduction in a spouse’s support obligations.” Wolcott
18 v. Wolcott, 105 N.M. 608, 609, 735 P.2d 326, 327 (Ct. App. 1987). But adjustment
19 of support obligations is not automatic. Id. at 610, 735 P.2d at 328 (noting that “this
12
1 change does not automatically mandate a reduction in his support obligation”). When
2 a parent leaves the workforce to seek higher education or training, “the court must
3 determine whether the reduction in income is both in good faith and reasonably
4 calculated to ensure the economic well-being of both the payor and the persons to
5 whom a duty of support is owed.” Lewis Becker, Spousal and Child Support and the
6 “Voluntary Reduction of Income” Doctrine, 29 Conn. L. Rev. 647, 672 (1997); cf.
7 Quintana, 2002-NMCA-008, ¶ 17 (“In cases in which a parent does not act primarily
8 to affect a child support obligation, the relevant inquiry is whether the parent’s career
9 choices are reasonable under the circumstances.”). The finding that Petitioner was
10 voluntarily underemployed and unemployed during the time he pursued the MBA
11 together with the conclusion that Petitioner did not make a good faith effort to find
12 employment since the parties’ divorce indicate that the district court rejected
13 Petitioner’s testimony that he had “no other solution” than to seek higher education.
14 These findings and conclusions also lead to the rational conclusion that pursuit of an
15 MBA was not a reasonable choice.
16 {19} We conclude that Petitioner failed to meet his burden of proof as to his inability
17 to find employment and as to the reasonableness of his choice to pursue an MBA and,
18 thus, the district court did not err in finding that there was no material change in
19 circumstances which warranted a modification in the amount of child support. We
13
1 cannot fault the district court for rejecting Petitioner’s view that the MBA program
2 choice was reasonable even if the court did not enter a specific finding of fact or
3 conclusion of law in regard to the choice issue.
4 Imputing Income
5 {20} The second issue is whether the district court erred in imputing income to
6 Petitioner. Petitioner states he “has no quarrel with the district court’s imputing
7 income to him equal to [Respondent’s] income.” In fact, Petitioner requested a
8 conclusion of law that “[i]t is reasonable for the court to impute an income to
9 Petitioner equal to Respondent’s income.” (We note that this concession appears to
10 support the district court’s finding that Petitioner was voluntarily under or
11 unemployed.) Although not contesting the imputation of $3064 per month in income,
12 Petitioner contends that the characterization of the Heartland funds as income “is
13 contrary to the plain language of . . . Section 40-4-11.1(C)(2) and is[,] therefore[,]
14 error.”
15 {21} Petitioner directs us to several cases to support his assertion that “[i]mputing
16 [Petitioner’s] income based on his ability to borrow against an asset is error.” In
17 Styka, this Court affirmed the district court’s exclusion of monetary gifts from the
18 income calculations for one party, “hold[ing] that gross income generally does not
19 include gifts under Section 40-4-11.1(C)(2).” Styka, 1999-NMCA-002, ¶ 24. The
14
1 Styka Court acknowledged, however, that it might have been permissible for the
2 district court to include gifts as income if the petitioner had requested a deviation from
3 the guidelines in the district court. Id. ¶ 25. In addition, the Court held that although
4 the value of assets divided after divorce is not income under the guidelines, “[i]nterest
5 earned on assets received in a property distribution . . . is income for purposes of child
6 support.” Id. ¶ 26. It found error in the district court’s calculation of interest income
7 from investment of funds received in the division of property. Id. ¶ 30. The funds at
8 issue here are neither gifts nor interest income from assets. We fail to see how these
9 holdings are applicable here.
10 {22} Petitioner also relies on Leeder v. Leeder, 118 N.M. 603, 609, 884 P.2d 494,
11 500 (Ct. App. 1994) upon which the Styka Court also relied. Styka, 1999-NMCA-002,
12 ¶ 26. In Leeder, this Court considered whether payments from one party to the other
13 for “equalization of division of the parties’ community assets” are “income” under the
14 guidelines. Leeder, 118 N.M. at 608, 884 P.2d at 499. It determined such payments
15 were not income because “we [do] not construe a division of community property as
16 a sale of property from one spouse to the other. There being no sale, there is no
17 income.” Id. The Leeder holding on which Petitioner relies is inapposite to this case.
18 Leeder prohibits calculation of income based on the value of an asset awarded to one
19 party in the division of assets after divorce. Id. Here, the district court did not
15
1 calculate Petitioner’s income based on the value of the Heartland business itself;
2 rather, Petitioner’s imputed income was based on the cash available to Petitioner
3 through the Heartland business. The district court’s finding was not contrary to
4 Leeder.
5 {23} Moreover, the nature of the Heartland bank account is such that Petitioner has
6 access to it for personal living and travel expenses. In Boutz, this Court stated that
7 “[t]he definition of gross income in the child support guidelines represents a
8 legislative effort to estimate ‘actual cash flow,’ that is the amount of money that will
9 actually be available to support the children. Technical definitions that run contrary
10 to this central purpose are disfavored.” 1999-NMCA-131, ¶ 14 (citation omitted); see
11 Major v. Major, 1998-NMCA-001 ¶ 9, 124 N.M. 436, 952 P.2d 37 (equating “actual
12 cash flow” with the money “reasonably available to apply toward the support of his
13 [or her] children”). Funds not generally considered income may be treated as such
14 when a party uses them in place of income. For example, in Webb v. Menix, the Court
15 determined that “the principal of [a] lump sum settlement award was not income
16 available to the child for child support purposes except to the extent that [the parent]
17 actually withdrew it for his own purposes.” 2004-NMCA-048, ¶ 30, 135 N.M. 531,
18 90 P.3d 989 (emphasis added); see id. ¶ 28 (stating that the parent used the interest
19 and principal of the award “as a source of income”).
16
1 {24} In the modification hearing, Petitioner testified that he could write a check to
2 Respondent at any time up to the amount in the Heartland account and that he could
3 “draw down” up to $100,000 in additional funds. Respondent presented evidence that
4 in early 2011 the account held over $340,000, and Petitioner testified that as of the
5 date of the hearing the account held approximately $7,000. The district court noted
6 that in spite of Petitioner’s claims that he had no income from wages and no income
7 from the Heartland business, Petitioner had paid over $15,000 for expenses for the
8 children. It also found that “[Petitioner’s] tax returns do not indicate the real cash that
9 is available to [Petitioner] as a comparison of his 2011 bank statements and 2010
10 [and] 2011 tax returns show.” It imputed the amount available to “borrow” to
11 Petitioner as income.
12 {25} We conclude that under the facts of the case the district court did not err in
13 imputing to Petitioner the balance of the amount he could access through Heartland.
14 The fact that Petitioner might have to pay those monies back to Heartland is not in and
15 of itself a reason not to impute the Heartland funds to him when Petitioner was living
16 off of the Heartland funds. See Padilla v. Montano, 116 N.M. 398, 404, 862 P.2d
17 1257, 1263 (Ct. App. 1993) (“[A] father has a duty to exhaust every reasonable
18 resource to support his minor children.”); cf. Quintana, 2002-NMCA-008, ¶¶ 27-31
19 (holding that earnings from retirement funds were appropriately included in child
17
1 support calculations, that “[t]he fact that [f]ather would pay a penalty for withdrawing
2 money from the [retirement account] prior to reaching the age of retirement does not
3 render the money unavailable[,]” and that a retirement account is appropriately
4 considered “an alternative source of income for meeting his child support obligation
5 should [f]ather’s other sources of income prove insufficient”). “The purposes of
6 allowing a [district] court to impute income to an underemployed parent are to
7 discourage the parent from shirking the obligation to support one’s children and to
8 encourage the underemployed parent to work at full capacity for the benefit of the
9 children.” Id. ¶ 16. Here, the testimony reveals that Petitioner uses the Heartland
10 funds to pay his living expenses, including personal and travel expenses, as well as
11 expenses of the children that do not constitute child support. Given that the district
12 court found that Petitioner was voluntarily unemployed, to hold that the district court
13 erred in imputing the amount available to Petitioner through Heartland as income
14 would undermine the purpose of imputing income. The district court did not abuse
15 its discretion in imputing these funds to Petitioner.
16 Spousal Support
17 {26} Petitioner argues that the district court erred when it failed to “make any
18 findings as to [Respondent’s] actual need for spousal support.” Since Petitioner did
19 not challenge the findings of the dissolution order, we understand his argument to be
18
1 that the district court in this modification proceeding did not make specific findings
2 of an ongoing need for spousal support. We review the award of spousal support for
3 an abuse of discretion. Bustos v. Bustos, 100 N.M. 556, 559, 673 P.2d 1289, 1292
4 (1983) (“The award of alimony, the amount of such alimony if awarded, and the
5 duration of an alimony award, are all left to the discretion of the district court.”).
6 “New Mexico cases indicate that the threshold question for the award of spousal
7 support is need.” Lebeck v. Lebeck, 118 N.M. 367, 370, 881 P.2d 727, 730 (Ct. App.
8 1994). In the dissolution order, the district court stated that it had considered the
9 factors in NMSA 1978, Section 40-4-7(E)(1) to (10) (1997), and found that
10 “Respondent is in need of spousal support” and that “Respondent testified that she
11 would need approximately two (2) years of education and/or training in the health care
12 field, to earn a commensurate salary in the labor force.” In addition, it ordered
13 Respondent to “enroll in the necessary education programs to obtain her [c]ertification
14 in her prior profession. Spousal [s]upport shall be reviewed in two (2) years, to
15 include any change in her monthly income as a result of any [c]ertification, or lack
16 thereof.” We conclude that this order is consistent with rehabilitative spousal support,
17 which “provides the receiving spouse with education, training, work experience[,] or
18 other forms of rehabilitation that increases the receiving spouse’s ability to earn
19 income and become self-supporting.” Section 40-4-7(B)(1)(a).
19
1 {27} Section 40-4-7(B)(2)(a) provides that a spousal support order may be modified
2 “whenever the circumstances render such change proper[.]” Here, the district court
3 concluded that “[t]here is no material change in circumstances which warrants a
4 modification in the amount of . . . spousal support.” Petitioner argues that
5 modification of spousal support was appropriate because Respondent “failed to show
6 any evidence that she had enrolled in any education programs or that she had made
7 progress of any kind whatsoever.” This is a rather dramatic mischaracterization of the
8 evidence. Respondent testified that she had been attending classes while working 35
9 to 42 hours per week in order to prepare for a physical therapy assistant program to
10 begin in summer 2012. Respondent provided a copy of a performance evaluation by
11 her employer indicating that she had qualified for a merit increase at her current job
12 from $17.74 per hour to $18.45 per hour. She also presented documentary evidence
13 of her enrollment in the summer program and a copy of a job description for a
14 physical therapy assistant position similar to one she intended to seek upon
15 completion of the program. This evidence supports a conclusion that Respondent was
16 acting to improve her earning capacity consistent with the original spousal support
17 determination, but had not yet achieved the rehabilitation contemplated. We discern
18 no abuse of discretion in the district court’s conclusion that there were no material
19 changes in Respondent’s circumstances warranting modification of spousal support.
20
1 See Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153 (“An abuse of
2 discretion occurs when a ruling is clearly contrary to the logical conclusions
3 demanded by the facts and circumstances of the case.”)
4 Child Support
5 {28} Finally, Petitioner argues that the district court erred in calculating the amount
6 he had paid toward child support. Specifically he argues that the district court erred
7 in relying on Respondent’s testimony as to what amount she had received rather than
8 on the evidence he presented in the hearing. He argues that he “should have been
9 given credit of $27,900 in payments to [Respondent]” or “[a]t a minimum, [he] should
10 have been given credit for payments in the amount of $22,400.” Since Petitioner was
11 given credit for $23,900, we do not address his second argument.
12 {29} Petitioner presented copies of four checks with which he purchased cashier’s
13 checks which he testified had been given to Respondent. Although Petitioner
14 provided copies of the checks to the bank to purchase the cashier’s checks, he
15 provided no documentation that Respondent actually received the cashier’s checks.
16 Respondent’s testimony was that she “[was] not sure without looking at the cashier’s
17 check” if she had received those monies from Petitioner. She also testified that she
18 did receive some cashier’s checks from Petitioner, but “without looking at [her] list,
19 [she was] not sure the[] amounts match[ed] up.” After reviewing a list of payments
21
1 that Petitioner claimed had been made, Respondent first stated that she had received
2 all of them. She then stated that she was disputing three checks from Petitioner that
3 were for the children’s expenses outside of child support and that she was not sure
4 whether she had received the cashier’s checks. The district court found that
5 “[Respondent] admits she did receive some certified funds but could not say whether
6 [three specific cashier’s checks] were given to her as certified funds.” It also found
7 that “[t]he burden of proving payment is [Petitioner’s]” and “[s]ince [Petitioner] did
8 not provide documentation of those [three] certified checks, [Respondent’s] record of
9 payments is accepted.”
10 {30} We are not convinced the district court was correct in stating that Petitioner
11 bears the burden of proving payment. Further, after a careful review of the record, we
12 cannot tell how the district court arrived at the amount credited to Petitioner. Several
13 incongruities make the record confusing. First, the district court credited Petitioner
14 with payments through November 2011 of $17,500. It appears that this is the sum of
15 the amount Respondent claimed to have received in her motion plus one additional
16 payment received before the hearing. Respondent stated in the hearing that she had
17 a list of all the payments received but her counsel could not find it during the hearing
18 and said he would provide it to the district court. We infer that the court relied on
19 documents provided outside of the hearing and not on the record on appeal. Since this
22
1 document is not in the record, we cannot tell whether the amount Respondent claimed
2 to have received included any of the cashier’s checks presented by Petitioner. Second,
3 it appears that Petitioner may have been given credit for some of the cashier’s checks
4 but not others. Third, the district court mischaracterized Respondent’s testimony
5 regarding one of the checks. Respondent challenged several payments on the ground
6 that they were for expenses not related to child support. The district court did not
7 credit Petitioner with one of these payments. Although the district court stated that
8 Respondent claimed she could not say whether she received this check, in fact
9 Respondent admitted receiving it. In addition, since the district court credited
10 Petitioner with two other checks that Respondent claimed were not for child support,
11 it would have been more consistent to credit this payment to Petitioner. Finally, while
12 Respondent asserts that “substantial evidence supports the result reached by the
13 [d]istrict [c]ourt[,]” she does not include any reference to the record in support of this
14 assertion. Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We
15 will not search the record for facts, arguments, and rulings in order to support
16 generalized arguments.”).
17 {31} “[W]e conclude that even construing all of the evidence in the light most
18 favorable to its findings, and indulging in all reasonable inferences in support thereof,
19 the [district] court’s findings and conclusions fail to adequately disclose how it arrived
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1 at its decision” as to the amount Petitioner had paid. El Paso Field Servs. Co. v.
2 Montoya Sheep & Cattle Co., 2003-NMCA-113, ¶ 16, 134 N.M. 375, 77 P.3d 279;
3 Kruskal v. Moss, 1998-NMCA-073, ¶ 10, 125 N.M. 262, 960 P.2d 350. We therefore
4 remand to the district court to clarify its findings and calculations.
5 Life Insurance
6 {32} We find no error in the district court’s order for “[Petitioner] . . . to comply with
7 previously existing orders and maintain life insurance covering his life of $250,000.”
8 Petitioner was ordered to obtain life insurance at the conclusion of the dissolution
9 proceedings. He did not appeal the order. Such an order is consistent with Section
10 40-4-7(E)(4)(c). In the modification hearing, Petitioner testified that he “had applied
11 for life insurance and had been turned down because of pre-existing conditions and
12 lack of income.” He did not provide copies of rejection letters or other documentation
13 of his attempts to secure life insurance. He did not provide documentation of medical
14 conditions that would limit his ability to obtain insurance. Although Respondent
15 presented no evidence to the contrary, the district court found that “[Petitioner] was
16 not credible.” See Lopez, 116 N.M. at 758, 867 P.2d at 428 (“If a finding is made
17 against the party with the burden of proof, we can affirm if it was rational for the
18 [district] court to disbelieve the evidence offered by that party.”); Lovato, 112 N.M.
19 at 521, 817 P.2d at 255 (discussing when the district court is not required to accept
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1 uncontradicted testimony); cf. Spingola v. Spingola, 91 N.M. 737, 742, 580 P.2d 958,
2 963 (1978) (“The burden of proof is on the moving party to satisfy the court that the
3 circumstances have so changed as to justify the modification.”). The district court did
4 not err in ordering Petitioner to obtain life insurance.
5 Attorney Fees
6 {33} Both parties seek attorney fees on appeal. Generally, parties are responsible for
7 their own attorney fees “unless [recovery of fees is] authorized by a statute, a court
8 rule, or an agreement expressly permitting their recovery.” Monsanto v. Monsanto,
9 119 N.M. 678, 681, 894 P.2d 1034, 1037 (Ct. App. 1995). Here, attorney fees are
10 permitted by statute. See § 40-4-7(A) (“The court may make an order, relative to the
11 expenses of the proceeding, as will ensure either party an efficient preparation and
12 presentation of his case.”); Rhinehart v. Nowlin, 111 N.M. 319, 330, 805 P.2d 88, 99
13 (Ct. App. 1990) (“New Mexico law permits the award of attorney fees on appeal in
14 domestic relation cases.”). “In determining whether to award attorney fees, a showing
15 of economic disparity, the need of one party, and the ability of the other to pay, has
16 been characterized as the primary test in New Mexico.” Quintana, 2002-NMCA-008,
17 ¶ 33 (internal quotation marks and citation omitted). Here, Petitioner is imputed with
18 income of $136,644 per year ($11,387 per month). The district court found
19 Respondent’s income to be $3,064 per month. In addition, Respondent is owed over
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1 $45,000 in child and spousal support arrearages and has prevailed in both the district
2 and appellate courts. We conclude that an award of attorney fees on appeal from
3 Petitioner to Respondent is warranted. We remand to the district court for calculation
4 of reasonable attorney fees.
5 CONCLUSION
6 {34} We affirm the district court’s denial of Petitioner’s motion for modification of
7 child support and spousal support and remand for entry of findings and conclusions
8 on the amount of child support payments and calculation of attorney fees.
9 {35} IT IS SO ORDERED.
10
11 MICHAEL D. BUSTAMANTE, Judge
12 WE CONCUR:
13 _________________________________
14 JONATHAN B. SUTIN, Judge
15 _________________________________
16 M. MONICA ZAMORA, Judge
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