Baca v. Baca
| Decision Date | 02 July 2013 |
| Docket Number | No. 32,223,32,223 |
| Parties | RONALD ROBERT BACA, Petitioner-Appellant, v. SUSAN ANN BACA, Respondent-Appellee. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Oldaker, Norris & Rockwell, LLC
Linda Rockwell
Albuquerque, NM
for Appellant
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellee
{1} Ronald Robert Baca (Petitioner) appeals the district court's denial of his motion to modify child and spousal support. Concluding that the district court did not err in determining that Petitioner was voluntarily unemployed and imputing income to him, we affirm. We remand to the district court for entry of findings and conclusions related to child support payments and calculation of attorney fees.
{2} Petitioner and Susan Ann Baca (Respondent) married in 1990. They have three children. They were divorced nearly twenty years later in March 2010. The proceedings relevant to the current matter include (i) the dissolution of marriage proceedings, (ii) a modification of child support one year after the dissolution, and (iii) the proceedings leading to the current appeal.
{3} In the dissolution of marriage proceedings, the district court made findings related to Petitioner's conduct during discovery, the nature and division of the "Heartland" business, and Petitioner's income. We outline the findings in each of these categories as they relate to the current matter. The district court appointed a special master to advise the district court on the valuation of assets and income or potential income of the parties. Citing Petitioner's "fail[ure] to provide [the special master] with . . . information [he has] requested[,]" the special master filed a motionto compel and for order to show cause. The district court granted the motion and ordered Petitioner to comply with the special master's request. In its dissolution order, the district court stated that it was "very concerned regarding Petitioner's persistent and continued pattern of non-compliance with discovery" and "Petitioner has failed to disclose assets, and[,] in fact, may have successfully hidden assets." It also referenced a bill for document shredding services which Respondent testified she discovered after the petition for dissolution was filed.
{4} The district court also made findings about Petitioner's business known as "Heartland." It found that "Petitioner's business known now as 'Heartland' is . . . an existing asset" but also noted that "Petitioner maintains that he derives no income from 'Heartland.' " The district court found that Heartland was Petitioner's sole and separate property and that "[a]ny 'Heartland' income, earned by Petitioner, can be used to pay spousal support to . . . Respondent." Finally, the district court found that although "Petitioner has consistently stated that he is not generating any income[,] he is completely indigent, and that all business ventures are failing at this time[,]" it also found that "[this] position is contradicted by . . . discovery . . . and by the information revealed by the [s]pecial [m]aster's investigation and research." It stated that "Petitioner did concede that he is capable of making approximately $90,000 per year." The district court found that "[a]lthough . . . the [s]pecial [m]aster finds thatPetitioner's income earning potential should be imputed at $200,000[] per year, in doing equity, and in considering the current financial market, the [district c]ourt finds that Petitioner is fully capable of earning $150,000[] per year[.]" It thus imputed a monthly income of $12,500. It concluded that "both child support and spousal support should be calculated on this amount." Based on these findings, Petitioner was ordered to pay $2500 per month in child support and $1500 per month in spousal support. Petitioner did not appeal the district court's findings and conclusions.
{5} Approximately one year later, in April 2011, the child support order was modified upon Petitioner's motion. The hearing officer found that "[t]here is insufficient evidence to modify Petitioner's imputed income of $12,500 per month." But he recommended reduction of the child support obligation to $1683 per month based on changes in the primary physical custody of two of the children. He also found that child support arrearages totaled $12,860, plus interest, and spousal support arrearages totaled $12,000, plus interest. The hearing officer's recommendations were adopted by the district court.
{6} The present matter was initiated in November 2011 when both Petitioner and Respondent filed motions to modify the child support order, among other arrangements. Respondent argued that modification was appropriate because "the oldest child . . . ha[d] reached the age of majority . . . and the parties' [other] childrenare living solely with Respondent." She also requested sole legal and physical custody of the two youngest children. Respondent also filed a motion to show cause why Petitioner should not be held in contempt for failure to pay court-ordered child support and spousal support. Petitioner argued that modification of child and spousal support was appropriate because "[h]e ha[d] been unable to find employment of any sort, and he is currently enrolled as a full-time student in the [Master's degree in business administration (MBA)] program at New Mexico Highlands University where he is attempting to obtain a[] degree to allow him to find employment."
{7} After a hearing, the district court made 103 findings of fact. Respondent's motion for sole legal and physical custody was denied based on the district court's finding that "[a] change from joint legal custody to sole legal custody does not fix the problem of inconsistent and haphazard paternal contact with the children."
{8} Petitioner's motion was also denied. Relevant to Petitioner's appeal, the district court found that (i) "[Petitioner] is voluntarily underemployed and unemployed"; (ii) ; (iii) Petitioner has two checking accounts, one of which was the Heartland account; (iv) Petitioner used the Heartland account for personal expenses, including travel, during the same period that he did not pay his child andspousal support obligations; (v) "[Petitioner] testified that the remaining amount he can 'borrow' from Heartland is $100,000"; (vi) Petitioner paid over $15,000 for the children's expenses between January 2011 and January 2012, which ; (vii) "[Petitioner] can certainly earn as much as [Respondent;]"; and (viii) Petitioner owed $33,000 and $13,736 in spousal support and child support arrearages, respectively. The district court concluded that "[t]here is no material change in circumstances which warrants a modification in the amount of child support or spousal support." Petitioner was also found in contempt of court for failure to pay child and spousal support.
{9} Petitioner makes a number of interwoven allegations of error in the second modification proceeding. Petitioner argues that the district court erred when it failed to consider Petitioner's efforts to become employed, imputed to him the amount available through the Heartland business, failed to determine Respondent's actual need for spousal support, miscalculated the amount of child support arrearages, and ordered him to obtain life insurance. We address these arguments in turn.
{10} Petitioner's first two issues have to do with when and how the district court may impute income to a parent for the purposes of setting child support payments. "Thesetting of child support is left to the sound discretion of the [district] court as long as that discretion is exercised in accordance with the child support guidelines." Quintana v. Eddins, 2002-NMCA-008, ¶ 9, 131 N.M. 435, 38 P.3d 203. Grant v. Cumiford, 2005-NMCA-058, ¶ 21, 137 N.M. 485, 112 P.3d 1142 (citations omitted).
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