Armenta v. Maestas

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DENISE C. ARMENTA,
3 Petitioner-Appellee,
4 v. NO. 32,174
5 PAUL MAESTAS,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
8 John F. Davis, District Judge
9 William A. Deraad
10 Albuqeurque, NM
11 for Appellee
12 Paul Maestas
13 Albuquerque, NM
14 for Appellant
15 MEMORANDUM OPINION
16 CASTILLO, Chief Judge.
1 Appellant, pro se, appeals the district court’s order modifying his child support
2 obligation. We issued a notice of proposed summary disposition proposing to affirm
3 on August 1, 2012. Appellant has responded with a timely memorandum in
4 opposition that we have duly considered. We remain unpersuaded, and we therefore
5 affirm the district court.
6 In our notice of proposed summary disposition, we noted that Appellant
7 generally challenged all of the findings made by the child support hearing officer
8 (CSHO), but did not provide a complete recitation of all the evidence and testimony
9 presented at the modification hearing. [CN 2-3] Although the CSHO made findings
10 relating to the cost of car insurance for the children, the cell phone plan, and the
11 timesharing arrangement, Appellant only provided a recitation of testimony related
12 to the timesharing arrangement. [RP 414-415] See Rule 12-208(D)(3) NMRA
13 (stating that the docketing statement shall contain a concise statement of the facts
14 relevant to consideration of the issues raised). Appellant also asserted that he had a
15 transcript of the proceedings prepared. [DS 3] We noted that Appellant did not appear
16 to be seeking to bring the transcript before this Court. [CN2]
17 Appellant then filed a motion to accept the transcript, which was denied by the
18 Clerk of the Court. In his memorandum in opposition, Appellant asserts that all
19 relevant facts were provided in the docketing statement. [MIO 2-3] We therefore
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1 proceed to address the merits of the appeal. The only issue specifically argued by
2 Appellant is that the CSHO erred in relying on the timesharing plan outlined in the
3 parties’ 2008 Worksheet B to calculate child support. Appellant argues that the
4 evidence was undisputed that the 209 days with Mother and 156 days with Appellant
5 noted in the 2008 Worksheet B did not reflect the actual amount of time spent with
6 each parent. Appellant argues that the CSHO should have relied on the equal
7 timesharing arrangement outlined in the 2008 parenting plan. [MIO 4-10]
8 We review the district court’s decision as to child support for abuse of
9 discretion. See Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P.3d
10 559; see also Gardner v. Gholson, 114 N.M. 793, 801, 845 P.2d 1247, 1255 (Ct. App.
11 1992) (stating that abuse of discretion is found only where the district court’s decision
12 is contrary to logic and reason). The CSHO’s findings state that there was conflicting
13 testimony on the timesharing issue. Appellant testified that the children spent equal
14 time with both parents as contemplated in the original parenting plan. Mother testified
15 that the time varied from year to year due to Appellant’s work schedule. [RP 414]
16 The CSHO also found that, although the parties disagreed over the amount of time,
17 they both agreed that days designated in the 2008 worksheet was a number that the
18 parties negotiated for the purposes of calculating child support. [RP 414-415] The
19 CSHO determined that neither party presented persuasive evidence regarding the
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1 number of days the children spent in each home, and the numbers negotiated by the
2 parties and outlined in the 2008 agreement would remain in force. [RP 415]
3 We find no abuse of discretion. In the absence of persuasive evidence that there
4 was a substantial change in circumstances regarding the amount of time the minor
5 children spent in each parent’s home, the CSHO was not required to depart from the
6 terms of the original agreement in calculating child support. See Mintz v. Zoernig,
7 2008-NMCA-162, ¶ 18, 145 N.M. 362, 198 P.3d 861 (stating that in order to modify
8 a child support order, a substantial change in circumstances must be shown).
9 Appellant argues Mother had the burden to show a material change in the timesharing
10 arrangement. [MIO 7-8] However, based on our review of her motion to modify child
11 support, Mother was not seeking a child support modification based on a material
12 change in circumstances with regard to the timesharing arrangement. Rather, the sole
13 basis for Mother’s petition to modify child support was the change in the parties’
14 income that resulted in a statutory presumption of changed circumstances. See NMSA
15 1978, § 40-4-11.4(A) (1991) (stating that there shall be a presumption of material and
16 substantial changes in circumstances if application of the child support guidelines
17 would result in a deviation upward of more than twenty percent of the existing child
18 support obligation). [RP 396-397] Mother’s motion alleges that the timesharing
19 arrangement outlined in the 2008 Worksheet B reflected the actual time the children
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1 spent with each parent. [RP 397] We therefore reject Appellant’s argument that
2 Mother had a burden to show a material change in circumstances with respect to the
3 timesharing arrangement.
4 For these reasons, we affirm the district court.
5 IT IS SO ORDERED.
6 __________________________________
7 CELIA FOY CASTILLO, Chief Judge
8 WE CONCUR:
9 __________________________________
10 JONATHAN B. SUTIN, Judge
11 __________________________________
12 LINDA M. VANZI, Judge
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