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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 KATHRYN J. KOCH,
3 Petitioner-Appellee,
4 v. No. 32,324
5 STEVEN J. KOCH,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Gerard J. Lavelle, District Judge
9 Armand T. Carian
10 Albuquerque, NM
11 for Appellee
12 Steven J. Koch
13 Albuquerque, NM
14 Pro Se Appellant
15 MEMORANDUM OPINION
16 SUTIN, Judge.
1 Respondent (Father) appeals from the district court’s orders awarding Petitioner
2 (Mother) child support arrears and unpaid medical expenses for the parties’ children.
3 [RP 97, 107] This Court issued a calendar notice proposing to reverse the district
4 court’s award of child support arrears, but affirm the award of unpaid medical
5 expenses. Petitioner has filed a memorandum in opposition to this Court’s proposed
6 summary reversal of the award of child support arrears. Respondent has not filed any
7 objections to this Court’s proposed summary affirmance of the unpaid medical
8 expenses. “Failure to file a memorandum in opposition constitutes acceptance of the
9 disposition proposed in the calendar notice.” Frick v. Veazey, 116 N.M. 246, 247, 861
10 P.2d 287, 288 (Ct. App. 1993). Accordingly, we affirm the district court’s order
11 requiring Respondent to pay unpaid medical expenses for the parties’ children.
12 On the issue of the district court’s award of child support arrears, we proposed
13 to reverse the district court’s order in our calendar notice. This Court’s proposed
14 reversal was premised on the general prohibition that district courts cannot
15 retroactively modify a support obligation. Ingalls v. Ingalls, 119 N.M. 85, 88, 888
16 P.2d 967, 970 (Ct. App. 1994). [CN 4] We noted the holding in Ingalls that “parties
17 may not, by private agreement, modify future child support obligations; rather,
18 modification of future child support is a matter to be determined by the courts.” Id.
19 at 86, 888 P.2d at 968. This Court also pointed out that, to the extent an express or
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1 implied agreement between the parties had been reached, such agreements “should
2 receive serious consideration by the trial court in weighing prospective modification.”
3 Id. at 88-89, 888 P.2d at 970-71 (emphasis added).
4 Petitioner has responded by arguing that this Court is not taking into
5 consideration the fact that the agreement between the parties was supported by
6 consideration and was, as Petitioner contends, “an enforceable contract.” [MIO 2] We
7 are not persuaded. This Court’s opinion in Ingalls does not hinge on the existence of
8 consideration; rather, it generally prohibits modification of support through private
9 agreements. Id. at 86, 888 P.2d at 968. Furthermore, drawing such a distinction
10 appears contrary to the basis for our decision in Ingalls. Our courts do not permit the
11 parties to enter into agreements regarding child support payments and change the
12 terms of the court-ordered support because such agreements may work to the
13 detriment of the child, and “the child’s present and future welfare takes precedence
14 over the rights of the court-designated payor and payee of child support payments.”
15 Id. at 88, 888 P.2d at 970 (alteration, internal quotation marks, and citation omitted).
16 If the parties entered into an agreement then, as we stated in Ingalls, the proper and
17 preferable procedure would have been for Petitioner “to seek immediate judicial
18 ratification” of that agreement. Id. Finally, Petitioner has not directed this Court to
19 any authority calling into question this Court’s decision in Ingalls. See State v.
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1 Mondragon, 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct. App. 1988) (stating that
2 “[a] party responding to a summary calendar notice must come forward and
3 specifically point out errors of law and fact” and the repetition of earlier arguments
4 does not fulfill this requirement); see also In re Adoption of Doe, 100 N.M. 764, 765,
5 676 P.2d 1329, 1330 (1984) (stating that where a party cites no authority to support
6 an argument, we may assume no such authority exists).
7 Accordingly, for the reasons stated in this Opinion and in this Court’s notice of
8 proposed disposition, we affirm the district court’s award of unpaid medical expenses
9 and reverse the district court’s award of child support arrears based on the parties’
10 private agreement.
11 IT IS SO ORDERED.
12 __________________________________
13 JONATHAN B. SUTIN, Judge
14 WE CONCUR:
15 __________________________________
16 MICHAEL D. BUSTAMANTE, Judge
17 __________________________________
18 MICHAEL E. VIGIL, Judge
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