1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
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5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 MARTIN BENAVIDEZ,
8 Petitioner-Appellee,
9 v. NO. 30,267
10 ARLENE PINO f/k/a
11 ARLENE BENAVIDEZ,
12 Respondent-Appellant.
13 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
14 J.C. Robinson, District Judge
15 Deschamps & Kortemeier Law Offices, P.C.
16 Lee Deschamps
17 Socorro, NM
18 for Appellee
19 Tibo J. Chavez, Jr.
20 Belen, NM
21 for Appellant
22 MEMORANDUM OPINION
23 VIGIL, Judge.
1 Mother appeals from the final order modifying timesharing and child support,
2 awarding Father a judgment for child support arrears, and awarding Father attorney
3 fees. Mother raises three issues on appeal, contending that the district court
4 committed reversible error by: (1) entering a sua sponte pre-trial order on May 15,
5 2009, changing timesharing of the children; (2) granting a judgment to Father for child
6 support arrears in the amount of $13,491; and (3) granting judgment to Father in the
7 amount of $10,000 for attorney fees. We affirm.
8 DISCUSSION
9 The final decree of dissolution of marriage was filed on July 15, 2005, which
10 approved and adopted the marital settlement agreement of the parties “as the Order of
11 the Court.” The marital settlement agreement provided for guideline child support and
12 directed that the existing parenting plan “will control until further Order of the Court.”
13 The marital settlement agreement also provided that “In the event either of the parties
14 desire, a 706 evaluation will be made of the parties and the children and the costs will
15 be equally divided. After the 706 evaluation is done, the parties shall follow the
16 recommendations until and unless the Court modifies the same.”
17 On July 19, 2006, after hearing Father’s motion for an order to show cause,
18 which alleged that Mother was not complying with the timesharing plan, the district
19 court (Judge Sweazea) ordered a change to the timesharing, and a Rule 11-706 NMRA
2
1 evaluation to determine a permanent timesharing plan. Dr. Zieman was appointed to
2 perform the evaluation and make appropriate recommendations to the court. The next
3 month, on August 1, 2006, Mother filed a motion to reconsider, asking that the district
4 court “dismiss” the July 19, 2006 order for a Rule 706 evaluation. Father’s response
5 to Mother’s motion to reconsider, together with a motion to modify child custody,
6 visitation and child support, and a motion for an order to show cause was filed on
7 November 28, 2006. Concerning child support, Father asked that child support “be
8 modified in accordance with the New Mexico Child Support Guidelines consistent
9 with the current income of the parties.”
10 After further conflicts and hearings, the district court (Judge Robinson)
11 appointed Dr. Zieman as a parenting coordinator on January 12, 2007, “for the
12 purpose of reducing conflict between the parents and of insuring the best opportunity
13 for the minor children to develop in the healthiest way possible under the
14 circumstances.” The court noted a need for the parties to develop a revised parenting
15 plan in sufficient detail regarding custody, visitation and/or timesharing. In this
16 regard, the parties were ordered to abide by any “written and oral directives and
17 decisions of the Parenting Coordinator regarding parenting issues, the Parenting Plan,
18 custody, visitation or timesharing, unless modified by the Court.”
19 On November 28, 2007, Mother filed a “Motion to Relocate, To Modify Child
3
1 Support, To Amend the Wage Withholding Order and To Appoint Dr. Miller as Rule
2 11-706 Custody Evaluator.” Therein, in material part, Mother alleged that a material
3 and substantial change in circumstances warranted a modification of Father’s child
4 support obligation and that the circumstances warranted the appointment of a custody
5 evaluator pursuant to Rule 11-706. Mother specifically requested that Dr. Miller be
6 appointed.
7 Following a hearing on January 30, 2008, the district court entered its order on
8 April 16, 2008. The district court appointed Dr. Miller as its Rule 11-706 expert to
9 perform an evaluation and make recommendations concerning legal custody and
10 appropriate timesharing arrangements. The district court also specifically ordered,
11 “The parties shall abide by the recommendations of Dr. Theresa Miller until further
12 order of the Court.” Dr. Miller made her custody evaluation recommendations in a
13 report dated December 9, 2008. Therein, she recommended that timesharing be
14 changed to 50/50, with the parents continuing to share joint legal custody of the
15 children.
16 On March 3, 2009, Father filed a motion asking that the district court enter its
17 order formally adopting Dr. Miller’s recommendations, which was attached to the
18 motion. Mother’s response to the motion admitted that Dr. Miller had completed her
19 custody evaluation and recommendations to the court on December 9, 2008 and that
4
1 the evaluation and report was attached to Father’s motion. Father again asked (as he
2 had in the motion filed on November 28, 2006) that child support be modified to an
3 amount consistent with the statutory guidelines in a motion filed on March 20, 2009.
4 In this motion, Father alleged that Mother was continuing to take credit for day care
5 expenses she did not pay ($70 per month), and for health insurance premiums she did
6 not pay ($160 per month), and that child support should be determined on the basis
7 of a shared responsibility worksheet, since the 706 expert, Dr. Miller, had
8 recommended equal timesharing. Father contended these constituted a material
9 change in circumstances, which warranted modifying the existing child support order.
10 The district court held a status conference on March 12, 2009, and set a hearing
11 to consider all pending matters for June 2, 2009. On May 15, 2009, the district court
12 entered an order sua sponte vacating the June 2, 2009 hearing, due to a court
13 scheduling conflict. Moreover, the district court made a finding that “a hearing on
14 whether there is going to be an adoption of the 706 Witness Recommendations is not
15 necessary because there are no new facts to develop,” and adopted Dr. Miller’s
16 recommendations as the order of the court. The court ordered the parties to advise the
17 court by letter what they had done to effectuate Dr. Miller’s recommendations since
18 March 2009, and set the matter for a review hearing to be held on January 11, 2010.
19 The court noted that the motion to modify child support remained outstanding and
5
1 directed the parties to exchange financial information.
2 Mother then filed a motion to enforce child support, for sanctions, and to
3 modify timesharing on August 19, 2009. Mother alleged that Father had not paid
4 child support since July 30, 2009, and that the 50/50 timesharing “is not practical and
5 is not in the best interests of the minor children” because the children were spending
6 time with their stepmother while Father worked. Father responded on November 23,
7 2009.
8 Following a status conference on September 17, 2009, an evidentiary hearing
9 was held on November 10, 2009. This hearing resulted in the final order, filed on
10 January 13, 2010, from which Mother appeals.
11 The May 15, 2009 Order
12 Mother contends that the May 15, 2009 sua sponte order was erroneously
13 entered without an evidentiary hearing, testimony, or findings regarding the best
14 interests of the children or a change in circumstances to justify a modification of
15 custody. Mother further contends that by adopting Dr. Miller’s Rule 11-706 report
16 and recommendations without taking testimony or hearing her objections, the district
17 court did not hold Father to carrying his burden of proof to modify joint custody,
18 precluded her from exercising her right to testify about custody of the children, and
19 precluded her from exercising her right to cross examine Dr. Miller as provided in
6
1 Rule 11-706. We disagree.
2 The main point of the May 15, 2009 order was to vacate the hearing on all
3 pending motions set for June 2, 2009, due to a court scheduling conflict and to
4 reschedule the case for a review hearing on January 11, 2010. Moreover, the order
5 indicates that the district court considered Dr. Miller’s Rule 11-706 recommendations,
6 as well as Mother’s objections thereto, and adopted the recommendations. In addition,
7 the district court directed the parties to comply and advise, in writing, what they had
8 done to effectuate compliance since March 2009, and set the matter for a review
9 hearing on January 11, 2010. Given that the district court determined that there were
10 no new facts to develop with regard to adopting Dr. Miller’s Rule 11-706
11 recommendations, and the necessity to reschedule the hearing set for June 2 and
12 arrange how matters should proceed between the parties in the interim pending the
13 rescheduled review hearing, we cannot say that the district court abused its discretion
14 in entering the May 15, 2009 sua sponte order.
15 Moreover, contrary to Mother’s assertions, the May 15, 2009 order did not
16 order a change of legal custody. Dr. Miller’s Rule 11-706 report and
17 recommendations specifically states, that Mother and Father “should continue to share
18 joint legal custody,” and recommends 50/50 timesharing. The May 15, 2009 sua
19 sponte order then simply adopts Dr. Miller’s Rule 11-706 report concerning
7
1 timesharing, and makes no order relating to legal custody. Timesharing is not legal
2 custody, and Mother fails to point to any authority stating otherwise. See NMSA
3 1978, § 40-4-9.1(F) (1999) (stating that when joint custody is awarded, a parenting
4 plan shall be adopted which “shall include a division of a child’s time and care into
5 periods of responsibility for each parent”); Jaramillo v. Jaramillo, 113 N.M. 57, 62,
6 823 P.2d 299, 304 (1991) (stating that the designation of one parent as “primary
7 physical custodian” under a court-approved parenting plan in a joint custody situation
8 “simply means that the child resides with that parent more than half the time”). In
9 other words, Mother’s status as having joint legal custody of her children was not
10 changed by the May 15, 2009 order.
11 Finally, Mother overlooks the fact that the district court held a full evidentiary
12 hearing on November 10, 2009, at which Mother was given an opportunity to present
13 all her evidence and arguments against 50/50 timesharing. After hearing and
14 considering all of the evidence at this hearing, the final order was entered, which once
15 again directed 50/50 timesharing. Further, the district court made a change to Dr.
16 Miller’s report and recommendations. Whereas Dr. Miller recommended that only
17 one parent attend the children’s extracurricular activities at a time, the district court
18 directed that both parents be allowed to attend the children’s respective school,
19 religious, and extracurricular activities. Finally, we note that the district court made
8
1 several findings in support of the final order, changing timesharing, and none of these
2 findings are challenged by Mother on appeal.
3 In summary, there appears to be no basis to support Mother’s contention on
4 appeal that the May 15, 2009 sua sponte order inappropriately made major, permanent
5 modifications to the parties’ timesharing arrangements without a hearing, testimony,
6 evidence, or findings. Rather, the order addressed matters pending a review hearing
7 that was necessarily rescheduled due to a district court scheduling conflict, and
8 Mother was given a full and fair opportunity to present her evidence and arguments
9 against 50/50 timesharing. We affirm the district court’s sua sponte order filed on
10 May 15, 2009.
11 Child Support Award
12 Mother contends the retroactive award of child support in the final order must
13 be set aside because it is based on 50/50 timesharing, which was improper, and
14 because the award is not supported by substantial evidence. Again, we disagree.
15 Having already concluded that the order for 50/50 timesharing was not erroneous, we
16 turn to Mother’s substantial evidence argument.
17 We review the setting of child support orders for abuse of discretion. See Styka
18 v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16. We will find that a
19 district court has abused its discretion “when it applies an incorrect standard, incorrect
9
1 substantive law, or its discretionary decision is premised on a misapprehension of the
2 law.” Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P.3d 559
3 (internal quotation marks and citation omitted). We review the questions of law
4 presented in Mother’s appeal de novo. Id.
5 First, the modifications set forth in the final order appropriately date back to
6 December 2006, based on Father’s motion to modify child support filed on November
7 28, 2006. See, e.g., Montoya v. Montoya, 95 N.M. 189, 190, 619 P.2d 1233, 1234
8 (1980) (stating that the general rule is “that the applicable date for any modification
9 is the date of filing of the petition or pleading rather than the date of hearing . . . unless
10 there are unusual circumstances”).
11 Second, contrary to Mother’s assertions, the final order contains a detailed
12 schedule of child support as modified by the district court, showing for specific
13 monthly time periods from December 2006 through the present, the child support
14 Father owed, the amount of child support Father paid, and the excess amount he paid.
15 These amounts as set forth on the schedule total $13,491 in overpaid child support due
16 to Father from Mother. The overpayments were calculated based on the district
17 court’s findings that from December 2006 to June 2009, Mother had accepted child
18 support based on calculations that considered that Mother was making certain
19 insurance and day care payments that she had not been making for about three years.
10
1 Thus, the district court determined that the excess payments should be returned to
2 Father in the amount of $13,491. Finally, we note that the district court specifically
3 attached a detailed worksheet to the final order that calculates the child support owed
4 by Father to Mother taking into account the parties’ then-current gross income and
5 applicable child care-related expenses. Moreover, Mother does not point us to any
6 evidence that the figures used by the district court have no basis in the evidence. See
7 Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not
8 search the record for facts, arguments, and rulings in order to support generalized
9 arguments.”).
10 Concluding that the district court did not abuse its discretion, we affirm the final
11 order calculating the overpayments Father made since December 2006 and
12 establishing the new child support amounts based on the parties’ then-current gross
13 incomes and child care-related expenses.
14 Attorney Fees
15 Mother argues that the $10,000 award of attorney fees to Father was an abuse
16 of discretion because she was in effect punished for exercising her right to be heard
17 on her objections to the Rule 11-706 recommendations of Dr. Miller, her right to be
18 heard regarding custody and the best interests of the children, and the award failed to
19 account for the substantial disparity of the parties. We are not persuaded that the
11
1 district court abused its discretion under the circumstances of this case.
2 NMSA 1978, Section 40-4-7(A) (1997) allows the district court to “make an
3 order, relative to the expenses of the [domestic relations] proceeding, as will ensure
4 either party an efficient preparation and presentation of his [or her] case.” See also
5 Herrera v. Herrera, 1999-NMCA-034, ¶ 19, 126 N.M. 705, 974 P.2d 675 (“Authority
6 to award attorney[] fees in domestic relations cases is provided by New Mexico
7 statutory law.”). “Many considerations enter into the matter of fixing attorney fees,
8 not the least important of which are: the ability, standing, skill and experience of the
9 attorney; the nature and character of the controversy; the amount involved, the
10 importance of the litigation and the benefits derived therefrom.” Michelson v.
11 Michelson, 89 N.M. 282, 289-90, 551 P.2d 638, 645-46 (1976); see Gomez v. Gomez,
12 119 N.M. 755, 759, 895 P.2d 277, 281 (Ct. App. 1995) (listing factors to be
13 considered in determining whether to award attorney fees, including the economic
14 disparity between the parties), superseded by statute on other grounds as stated in
15 Erickson v. Erickson, 1999-NMCA-056, ¶ 25, 127 N.M. 140, 978 P.2d 347. We
16 review the district court’s award of attorney fees for an abuse of discretion. See
17 Fitzgerald v. Fitzgerald, 70 N.M. 11, 15, 369 P.2d 398, 400 (1962).
18 In this case, the district court judge (Judge Robinson) presided since being
19 designated by the Supreme Court on October 31, 2006. In awarding attorney fees to
12
1 Father, the district court made the following findings: (1) Mother refused to abide by
2 and made objections to the final mediated parenting plan agreement after it was
3 entered; (2) Mother objected to a special commissioner’s finding that it was Mother
4 who had committed an act of domestic violence rather than Father or his wife, as
5 Mother had alleged; (3) Mother refused to accept the district court judge’s decision
6 to deny her objections regarding the special commissioner’s domestic violence
7 findings; (4) Mother raised the same unfounded domestic violence allegations, to
8 which Father was required to respond and defend, for a third time; (5) Mother
9 continued to accept child support payments from Father in the amount that was
10 calculated based on Mother’s payment of insurance premiums and day care expenses
11 when she had no longer been making these payments for a period of three years; and
12 (6) Mother filed a motion to reduce Father’s visitation when the district court had,
13 after considering her objections, adopted the Rule 11-706 expert’s findings and
14 recommendations without any showing that such a reduction would be in the best
15 interests of the children.
16 These findings are supported by substantial evidence presented in the record
17 proper and at the hearing prior to the filing of the final order, and they support the
18 district court’s conclusions that Father was entitled to a portion of his attorney fees in
19 the amount of $10,000, because (a) “many, if not most, of the proceedings have been
13
1 initiated and pursued because [Mother] refused to accept the rulings and findings and
2 determinations made;” (b) “[Mother’s] failure to act in good faith resulted in
3 protracted, unnecessary and unsuccessful litigation;” and (c) “[a] substantial portion
4 of [Father’s] attorney[] fees were caused as a direct consequence of [Mother’s] lack
5 of good faith in this cause of action.”
6 In addition, we hold that the district court did not abuse its discretion in
7 awarding $10,000 to Father in attorney fees since 2004, because this amount is related
8 to the attorney fees Father incurred as a result of Mother’s failure, throughout the
9 litigation, to accept the district court’s rulings, Mother’s bringing of what was
10 determined to be unfounded domestic violence accusations against Father that he was
11 required to defend against, and Mother’s unwillingness to abide by the mediated
12 agreements she made or to accept the recommendations of the Rule 11-706 expert that
13 were duly adopted by the district court. Moreover, the amount of attorney fees
14 awarded goes directly to Father’s “efficient preparation and presentation of his case,”
15 including his defense to Mother’s apparently unfounded domestic violence
16 allegations, and the necessity of Father’s filing of motions for the purpose of requiring
17 Mother to do what she was already required to do under the orders of the district
18 court. In making a partial award of attorney fees to Father, moreover, the district
19 court weighed Mother’s demonstrated willingness to engage in unnecessary litigation
14
1 that resulted in delay about matters already agreed to or litigated, against Mother’s
2 income and her ability to pay such amount. Finally, as such, the amount of attorney
3 fees awarded addresses the “nature and character of the controversy” in this particular
4 case and “the benefits derived therefrom” by compensating Father for having to pay
5 his attorney to defend against unfounded accusations and to enforce the district court’s
6 rulings.
7 Under the circumstances of this case, we cannot say that the district court erred
8 in making a partial award of attorney fees to Father in the amount of $10,000.
9 CONCLUSION
10 We affirm the district court’s rulings in this case and the final order.
11 IT IS SO ORDERED.
12 ______________________________
13 MICHAEL E. VIGIL, Judge
14 WE CONCUR:
15 __________________________________
16 JONATHAN B. SUTIN, Judge
17 __________________________________
18 RODERICK T. KENNEDY, Judge
15