1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 VALERIE MUÑIZ,
8 Petitioner-Appellee,
9 v. NO. 28,902
10 EDWARD ESTRADA,
11 Respondent-Appellant,
12 v.
13 STATE OF NEW MEXICO ex rel.
14 HUMAN SERVICES DEPARTMENT,
15 Intervenor-Appellee.
16 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
17 Raymond Z. Ortiz, District Judge
18 Valerie Muñiz
19 Velarde, NM
20 Pro Se Appellee
21 Gary K. King, Attorney General
22 Anita X. Tellez, Special Assistant Attorney General
23 Matthew Wilson, Special Assistant Attorney General
24 Santa Fe, NM
25 for Appellee Human Services Department
1 Ray Twohig, P.C.
2 Ray Twohig
3 Albuquerque, NM
4 for Appellant
5 MEMORANDUM OPINION
6 CASTILLO, Judge.
7 In this case, Father challenges the calculation of his child support obligation,
8 which imputed income to him at $8.00 per hour based on a forty-hour work week
9 during the time span beginning with his separation from Mother and ending with the
10 date of the final hearing when the obligation was determined. Father’s position is that
11 income should not have been imputed for those periods during which he was
12 incarcerated, or for those periods when he was unemployed. Having reviewed the
13 evidence presented to the hearing officer, the objections made by Father to the district
14 court, and the arguments made on appeal, we conclude that the district court did not
15 abuse its discretion by imputing Father’s income at $8.00 an hour for the entire time
16 span. Accordingly, we affirm.
17 I. BACKGROUND
18 Mother and Father had three children together. The couple separated in 2002,
19 and Mother filed a petition for custody and child support in April 2004. After a series
20 of delays, on March 25, 2008, a hearing was held in order to determine the parties’
21 child support obligations. The hearing officer issued an amended report and decision
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1 on April 18, 2008. The report noted that the parties stipulated to Mother’s income for
2 the entire time between the separation and the hearing and that the stipulation
3 regarding Father’s income related only to one brief period of employment during the
4 same period, as well as his future employment. To account for Father’s support
5 obligation for the remainder of time between the separation and the hearing, the
6 hearing officer found that Father’s income should be imputed at a rate of $8.00 per
7 hour based on a forty-hour week. The district court adopted the hearing officer’s
8 findings and decision. Father appeals.
9 II. DISCUSSION
10 Father makes two arguments on appeal. First, Father contends that the district
11 court improperly imputed his income during the periods that he was incarcerated.
12 Second, Father challenges the imputation of income for the periods during which he
13 was unemployed, and he argues that the evidence did not support the $8.00 per hour
14 rate of imputation. In addition, the parties dispute whether the hearing officer
15 properly accounted for the lengths of time that Father was incarcerated. We review
16 the district court’s order setting child support for abuse of discretion and any factual
17 findings for substantial evidence. See Quintana v. Eddins, 2002-NMCA-008, ¶ 9, 131
18 N.M. 435, 38 P.3d 203. We begin by considering the length of incarceration.
19 A. Length of Incarceration
3
1 Father asserts that the testimony at the hearing showed that he was incarcerated
2 for at least “[three] years and eight months during the six[-]year period from the
3 separation of the parties until the imputation of income.” Mother responds that
4 Father’s testimony on this subject at the hearing was “tentative, unclear, and
5 inconsistent” and that, as a result, the hearing officer relied on the submitted jail
6 records in order to determine that the period of incarceration was approximately seven
7 months. After reviewing the testimony and the hearing officer’s report, we agree with
8 neither party.
9 The hearing officer’s report is divided into three sections. The report begins
10 with a section entitled, “The Hearing Officer heard testimony, evidence, and
11 argument,” which is followed by an outline of the testimony and evidence received.
12 Next, the hearing officer reported her factual findings under the heading “The Hearing
13 Officer FINDS[.]” Last, the hearing officer made her recommendations to the district
14 court in a section titled “The Hearing Officer Recommends that the Court Order[.]”
15 Under the first section, outlining the testimony and evidence received, the hearing
16 officer made the following observation:
17 Father provided jail records to support his testimony of his times of
18 incarceration[,] which are summarized as follows: Bernalillo Metro
19 Detention Center from 07/03/2006 to 11/03/2006 when he was
20 transported to Taos, Bernalillo Metro Detention Center from 12/13/2007
21 to 12/21/2007; Cibola County Detention Center from 12/23/2007 to
22 01/12/2008; and Taos Detention Center from 11/29/2007 to 01/14/2008.
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1 Despite Father’s assumption to the contrary, this was not a factual finding by the
2 hearing officer regarding the length of his incarceration but rather an acknowledgment
3 of the records that Father produced as evidence. Earlier in this first section of the
4 report, the hearing officer refers to Father’s incarceration and release in 2002. This
5 reference is supported by Father’s testimony at the hearing:
6 Hearing Officer: I’m going to ask you for your work history
7 and your income, starting with 2002. Do you
8 have any wage information for 2002?
9 Father: No ma’am. I was incarcerated. . . . 2002
10 would be until May.
11 Hearing Officer: Until May of 2002?
12 Father: Yes ma’am.
13 Hearing Officer: And she left in April of 2002?
14 Father: Correct.
15 Hearing Officer: So, what did you do after May of 2002?
16 Father: I looked for employment, and then in July I
17 was back in custody.
18 Hearing Officer: For how long?
19 Father: It would be all the way until 2005.
20 Hearing Officer: What month in 2005?
21 Father: July.
22 The hearing officer made no factual finding with regard to the total length of Father’s
5
1 incarceration. The finding relating to incarceration simply states that “the [h]earing
2 [o]fficer finds that Father’s responsibility to provide support and maintenance to his
3 children did not toll during his periods of incarceration.”
4 The hearing officer further found that Father owed arrears for the entire period
5 between May 2002 and March 2008, which includes the disputed periods of
6 incarceration, and that his income should be imputed for all of the periods that Father
7 was either unemployed or incarcerated. Thus, although the hearing officer did not
8 make a specific finding regarding the length of incarceration, the report acknowledges
9 that Father was incarcerated in 2002 and imputes his income for the entire period of
10 time that he contends that he was incarcerated. We presume, based on the references
11 in the report, that the hearing officer was aware that the length of incarceration totaled
12 a three-and-a-half-year period, and we take this as the basis for our further analysis.
13 See Doña Ana Mut. Domestic Water Consumers Ass’n v. New Mexico Pub. Regulation
14 Comm’n, 2006-NMSC-032, ¶ 32, 140 N.M. 6, 139 P.3d 166 (concluding that although
15 an agency did not make a specific finding, that finding was implicit in the order and
16 supported by the record). We turn now to consider whether Father’s income was
17 properly imputed for the time that he was incarcerated.
18 B. Imputing Income during Incarceration
19 Father cites a number of out of state cases for the proposition that “incarceration
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1 is one factor to consider” when evaluating the “ability of a parent to pay child
2 support.” In New Mexico, it is clear that “[w]hile incarceration is a factor to be
3 considered, proof of incarceration standing alone does not demonstrate an inability to
4 pay support.” Thomasson v. Johnson, 120 N.M. 512, 514, 903 P.2d 254, 256 (Ct.
5 App. 1995). Instead, we consider five factors to evaluate whether the amount of
6 support is justified despite the parent’s incarceration: (1) whether the criminal act was
7 deliberate and had known consequences, (2) whether the period of incarceration, as
8 well as the duration of the support obligation, were for a “relatively short period of
9 time,” (3) whether the parent had marketable skills, and (4) whether the parent had
10 assets apart from income. See id. at 514-15, 903 P.2d at 256-57. We observe that
11 Thomasson addressed the modification and not the imposition of child support. Id.
12 at 513, 903 P.2d at 255. Nevertheless, both parties argue that the factors outlined in
13 Thomasson should be applied to the present case, and we see no substantive reason
14 to depart from that analysis.
15 Father points to nothing that would indicate that the hearing officer failed to
16 consider the Thomasson factors or that she considered only the fact of incarceration.
17 Nor does Father direct us to any place in the record where he requested
18 reconsideration based on the hearing officer’s failure to take the multi-factor approach
19 outlined in Thomasson. We acknowledge that Father filed objections to the hearing
7
1 officer’s report. Those objections, however, do not address Father’s current argument
2 and instead relate to the length of incarceration, his inability to find employment, the
3 rate of imputation, and the award of child support for the period of time before Mother
4 filed the petition. To the extent that Father’s objection to the calculation of the length
5 of his incarceration can be considered a reference to one of the Thomasson factors, we
6 are unpersuaded that a total of three and a half years of incarceration—not served
7 consecutively, but rather in discrete periods—demonstrates that Father could not meet
8 his support obligation based on his incarceration. In Thomasson, this Court
9 considered a four-year period of incarceration to be, in the context of imputing
10 income, “a relatively short period of time.” Id. at 515, 903 P.2d at 257.
11 It is well established that it was Father’s burden to demonstrate that he was
12 unable to meet his support obligation due to his incarceration. See State ex rel.
13 Human Servs. Dep’t v. Kelley, 2003-NMCA-050, ¶ 25, 133 N.M. 510, 64 P.3d 537
14 (acknowledging that the parent “has the burden of proving inability to pay”);
15 Thomasson, 120 N.M. at 514, 903 P.2d at 256 (affirming because the district court
16 could have determined that the parent failed to prove that “the continuation of the
17 amount of support was unjustified despite his incarceration”). In his briefing to this
18 Court, Father argues that the following facts satisfied that burden: “substantial”
19 periods of incarceration, living at his mother’s house, an inability to hold down a job,
8
1 dismissal from a job due to an argument, alcoholism, poor health, and a criminal
2 record that prevents him from obtaining meaningful employment. The hearing officer
3 was not persuaded by these facts, and we will not reweigh the evidence on appeal. See
4 Kaveny v. MDA Enters., Inc., 2005-NMCA-118, ¶ 6, 138 N.M. 432, 120 P.3d 854 (“It
5 is for the fact-finder, not the appellate court, to weigh the evidence.”); Bd. of County
6 Comm’rs of Sierra County v. Harrison, 1998-NMCA-106, ¶ 8, 125 N.M. 495, 964
7 P.2d 56 (noting that an appellate court does not reweigh evidence and that the
8 question is whether there was evidence to support the result reached by the hearing
9 officer and not the opposite outcome).
10 We are further unpersuaded by Father’s argument that because he “did not
11 commit crimes in order to avoid a child support obligation,” his income cannot be
12 imputed for the period of incarceration. For support, Father cites Quintana. In
13 Quintana, this Court considered whether a parent’s income should be imputed based
14 on underemployment and held that
15 as long as a parent is working full time in his area of expertise, earning
16 an amount of money within the range presented by the evidence, and in
17 a location reasonably accessible to his child, the trial court may not find
18 that he is underemployed without making a specific finding of bad faith.
19 2002-NMCA-008, ¶¶ 1-2. The Court then defined “good faith” in the context of
20 underemployment as “acting for a purpose other than to reduce or avoid a child
21 support obligation.” Id. ¶ 17. In citing Quintana, Father fails to address the first half
9
1 of the Court’s holding. He makes no effort to establish that he was working full time
2 in his area of expertise or that he was earning an amount of money within the range
3 presented by the evidence in a location accessible to his children. See id. ¶ 2.
4 Accordingly, Quintana’s good faith definition does not apply to prevent imputation
5 of income during Father’s incarceration.
6 C. Imputation During Periods of Unemployment
7 Father’s second argument is that the district court improperly imputed income
8 “for periods of unemployment where [his] criminal history has prevented him from
9 obtaining meaningful employment despite substantial efforts to do so[.]” Father
10 presents no argument or authority to support the proposition that a parent is excused
11 from a child support obligation when he is unemployed because he has difficulty in
12 securing a position. Father does not argue that he was unemployed in good faith, as
13 contemplated by Quintana’s underemployment analysis. He simply states that his
14 “alcoholism, health and criminal record have prevented him from meaningful
15 employment during periods living outside jail or prison.” These assertions are belied
16 by the evidence presented on the record. See Boutz v. Donaldson, 1999-NMCA-131,
17 ¶ 6, 128 N.M. 232, 991 P.2d 517 (“It is for the trial judge, or in this case the special
18 master, subject to judicial review, to assess [a parent’s] efforts, sincerity,
19 conscientiousness, and credibility, and then to decide whether [the parent] has acted
10
1 in good faith to earn and preserve as much money to support [the] children as could
2 reasonably be expected under the circumstances.”).
3 The hearing officer heard evidence that Father had earned $8.00 per hour while
4 he and Mother lived together, that he had earned $8.00 per hour at the only job he held
5 while not incarcerated between May 2002 and March 2008, and that he had recently
6 obtained a trucking license that would permit him to earn at least $8.00 per hour.
7 Based on this evidence, we are satisfied that before, between, and after his
8 incarcerations, Father was capable of finding employment at the rate of $8.00 per
9 hour.
10 III. CONCLUSION
11 For these reasons, the district court did not abuse its discretion by imputing
12 Father’s income during the periods of incarceration and unemployment, and the
13 evidence supported imputing the income at a rate of $8.00 per hour. Consequently,
14 we affirm the district court.
15 IT IS SO ORDERED.
16 ________________________________
17 CELIA FOY CASTILLO, Judge
18 WE CONCUR:
19 ________________________________
20 CYNTHIA A. FRY, Chief Judge
11
1 ________________________________
2 LINDA M. VANZI, Judge
12