IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-046
Filing Date: March 25, 2009
Docket No. 28,589
MOHAMMED ZABOLZADEH,
Respondent-Appellant,
v.
CYNTHIA ZABOLZADEH,
Petitioner-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge
Barry Green
Santa Fe, NM
for Appellant
The Childress Law Office
Sidney Childress
Albuquerque, NM
for Appellee
OPINION
VIGIL, Judge.
{1} The issue presented in this case is whether a district court has authority under New
Mexico’s Uniform Parentage Act (UPA), NMSA 1978, Sections 40-11-1 to -23 (1986, as
amended through 2004), to order a father to pay retroactive child support for an arrearage
that accrued over twelve years, when the father stipulated to paternity in a proceeding under
the UPA in another state prior to the child’s birth. We reverse.
BACKGROUND
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{2} Father and Mother were married in October 1982. Father and Mother lived together
intermittently for several years. Father and Mother agreed to divorce, and a divorce
judgment was filed January 31, 1991 in California stating that the marital status would be
terminated June 18, 1991. Child was conceived in February 1991. On August 20, 1991,
before Child was born, Mother retained an attorney and filed a “Complaint To Establish
Parental Relationship” with a California court pursuant to the California UPA. On October
29, 1991, Mother and Father filed a stipulation in the California action in which Father
acknowledged paternity of Child, Mother was awarded sole legal and physical custody of
Child, and the court expressly reserved the issue of child support. This stipulation was
signed by a judge and contains the language “It Is So Ordered.” Some time between
September and November 1991, Father traveled to Iran for four months. Child was born on
November 17, 1991. Mother attempted to communicate with Father over the next few years,
but she never was able to get in touch with him. In June 2006, Mother discovered Father’s
whereabouts in California.
{3} On October 24, 2006, Mother filed a petition to modify the 1991 stipulation in the
district court in New Mexico. In the petition, Mother claimed that the district court should
order Father to pay child support retroactive to the date of the 1991 stipulation because
Father had defrauded her into believing he was dead. A pretrial order was entered on
October 1, 2007, stating that the issues for trial were claims of past child support and
equitable defenses to those claims. The trial took place on March 24, 2008. The district
court ordered Father to pay retroactive child support in the amount of $75,000 for the
arrearage that accrued over twelve years between November 1994 and October 2006. Father
appeals this decision of the district court.
DISCUSSION
{4} We review the setting of child support orders for abuse of discretion. See Styka v.
Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16 (filed 1998). We will find that a
district court has abused its discretion “when it applies an incorrect standard, incorrect
substantive law, or its discretionary decision is premised on a misapprehension of the law.”
Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P.3d 559 (filed 2004)
(internal quotation marks and citation omitted). We review the questions of law presented
in Father’s appeal de novo. Id.
Applicability of the Uniform Parentage Act
{5} Father argues that the district court erred when it applied the UPA in this case.
Under New Mexico’s UPA, “Any interested party may bring an action for the purpose of
determining the existence or nonexistence of the parent and child relationship.” Section 40-
11-7(A) (emphasis added). The district court order states that Mother’s action is governed
by the UPA and adjudicates Father to be Child’s father. However, it also recognizes that
Father had already stipulated to paternity of Child in the California court. Mother has not
argued that the California stipulation/order in which Father acknowledged paternity was
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deficient in any way or that it was not a final order entitled to full faith and credit. By its
terms, as quoted above, the UPA only applies to cases where parentage has not previously
been determined. Id. Thus the district court erred in applying the UPA to the present case
and adjudicating paternity for the second time when Father’s paternity had already been
judicially acknowledged and adjudicated in the California court.
{6} Mother argues that despite the fact that paternity was established fifteen years prior
to her petition, retroactive child support under the UPA is appropriate because the California
court reserved the issue of child support and no child support order was ever issued by that
court. In support of her contention, Mother cites statutory language stating that after an
adjudication of paternity under New Mexico’s UPA, “the obligation of the father may be
enforced in the same or other proceedings by any interested party,” Section 40-11-17(A), and
that proceedings “shall be stayed until after the birth” if an action is brought under New
Mexico’s UPA before the child’s birth. Section 40-11-7(B). Assuming arguendo that New
Mexico’s UPA applies to Father’s acknowledgment of paternity under California law, we
are not persuaded that this language allows a parent to initiate a UPA proceeding to
adjudicate paternity prior to a child’s birth and then pursue an award of retroactive child
support fifteen years later. While it is true that New Mexico has a strong public policy in
favor of child support, as recognized in In re Estate of DeLara, 2002-NMCA-004, ¶ 10, 131
N.M. 430, 38 P.3d 198 (filed 2001), Mother’s interpretation broadens the application of the
UPA beyond permissible bounds. Therefore, we hold that the district court erred when it
applied the UPA to this case.
Retroactive Child Support
{7} Under New Mexico law, the only authority for awarding retroactive child support
before the date of the filing of the petition for modification is under Section 40-11-15(C) of
the UPA. Outside of the UPA, New Mexico case law only allows modification of child
support to be retroactive to the date of the petition for modification. See Montoya v.
Montoya, 95 N.M. 189, 190, 619 P.2d 1233, 1234 (1980) (directing that the
applicable date for retroactive modification is the date of the filing of a petition, application,
or pleading); see also Leeder v. Leeder, 118 N.M. 603, 610, 884 P.2d 494, 501 (Ct. App.
1994) (stating that “modifications of child support cannot be effective before the date of the
pleading seeking increased or decreased support”). Because the district court erred in
applying the UPA to this case, the district court award of child support retroactive to 1994
is improper.
CONCLUSION
{8} For the above reasons, we reverse the district court award of $75,000 retroactive
child support for the arrearage between November 1994 and October 2006.
{9} IT IS SO ORDERED.
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MICHAEL E. VIGIL, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
RODERICK T. KENNEDY, Judge
Topic Index for Zabolzadeh v. Zabolzadeh, No. 28,589
DR DOMESTIC RELATIONS
DR-CT Child Support
DR-PT Paternity
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