Stahlbaum v. Pinson

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MATTHEW STAHLBAUM,
3 Petitioner-Appellant,
4 vs. No. 36,119
5 ALISHA PINSON,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 Mark T. Sanchez, District Judge
9 Lara Law Firm
10 Roxanne Rodriguez Lara
11 Carlsbad, NM
12 for Appellant
13 Alisha Pinson
14 Carlsbad, NM
15 Pro Se Appellee
16 MEMORANDUM OPINION
17 HANISEE Judge.
18 {1} Petitioner has appealed from an order finalizing child support issues. We issued
19 a notice of proposed summary disposition in which we proposed to affirm in part,
1 reverse in part, and remand. Petitioner has filed no response. Respondent has filed a
2 responsive memorandum. After due consideration, we adhere to our initial assessment.
3 {2} Because the pertinent background information was previously set forth and
4 neither party has expressed disagreement, we will avoid undue reiteration here.
5 {3} In his docketing statement Petitioner raised three issues, first challenging the
6 portion of the order requiring him to pay child support retroactive to the date upon
7 which Respondent regained custody of the Child, but prior to the date upon which
8 Respondent filed the petition for modification. [DS 4] We observed that this is
9 impermissible. [CN 2] See Zabolzadeh v. Zabolzadeh, 2009-NMCA-046, ¶ 7, 146
10 N.M. 125, 207 P.3d 359 (“New Mexico . . . allows modification of child support to
11 be retroactive to the date of the petition for modification.”). In her responsive
12 memorandum Respondent does not disagree. [MIO 1] Instead, she offers equitable
13 considerations which may underlie the district court’s decision. [MIO 1-2] We
14 observe that the equities would be more appropriately accommodated in a different
15 context, specifically in relation to the award of arrears. See Ullrich v. Blanchard,
16 2007-NMCA-145, ¶¶ 21-22, 142 N.M. 835, 171 P.3d 774 (observing, with respect to
17 calculation of retroactive child support on remand, that the trial court should consider
18 any applicable equitable defenses, including estoppel, waiver, and unclean hands);
19 Ingalls v. Ingalls, 1994-NMCA-148, ¶ 14, 119 N.M. 85, 888 P.2d 967 (“In a
2
1 proceeding to enforce a child support order, the trial court also has latitude to consider
2 any equitable defense.”). We leave the handling of this matter to the sound discretion
3 of the district court on remand.
4 {4} By his second and third issues, Petitioner challenged the district court’s denial
5 of his request for interest and imposition of a payment deadline. [DS 7, 9] Because we
6 perceived no abuse of discretion, we proposed to summarily reject these arguments.
7 [CN 3-4] In light of Petitioner’s failure to file any memorandum in opposition, these
8 issues are deemed abandoned. See generally State v. Johnson, 1988-NMCA-029, ¶ 8,
9 107 N.M. 356, 758 P.2d 306 (observing that where a party does not respond to our
10 proposed summary disposition with respect to an issue, that issue is deemed
11 abandoned).
12 {5} Accordingly, for the reasons stated above and in the notice of proposed
13 summary disposition, we reverse in part and remand for further proceedings consistent
14 herewith.
15 {6} IT IS SO ORDERED.
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17 J. MILES HANISEE, Judge
3
1 WE CONCUR:
2
3 MICHAEL E. VIGIL, Judge
4
5 M. MONICA ZAMORA, Judge
4