Britton v. Britton

• Decision Date: 17 October 1983
• Docket Number: No. 14577,14577
• Citation: 1983 NMSC 84,671 P.2d 1135,100 N.M. 424
• Parties: June F. BRITTON, Petitioner-Appellee, v. H.R. BRITTON, Respondent-Appellant.
• Court: New Mexico Supreme Court

Page 1135

671 P.2d 1135

100 N.M. 424

June F. BRITTON, Petitioner-Appellee, v. H.R. BRITTON, Respondent-Appellant.

No. 14577.

Supreme Court of New Mexico.

Oct. 17, 1983.

George P. Jones, III, Albuquerque, for respondent-appellant

Atkinson & Kelsey, Sandra Morgan Little, Albuquerque, for petitioner-appellee.

OPINION

SOSA, Senior Justice.

Petitioner-Appellee, June Britton (Petitioner) filed a petition in the Bernalillo County District Court to reduce accrued and unpaid child support arrearages to judgment. The district court concluded that the divorce decree mandating child support was enforceable and that no statute of limitations period bars action on the arrearages. It did not allow H.R. Britton, Respondent, any offset. The court issued an order setting arrearages and a final judgment in the amount of $7900.00 without interest and did not award attorney's fees. Respondent appeals from the district court's determination awarding arrearages. Petitioner cross-appeals on the failure of the district court to award her attorney's fees.

The questions presented here are (1) whether the amended final divorce decree was unambiguous and therefore enforceable; (2) whether accrued and unpaid child support installments are deemed final judgments, thereby rendering action on them subject to a statute of limitations period; (3) whether Respondent should have been allowed an offset against the arrearage judgment; (4) whether laches bars any recovery of the accrued child support installments; and (5) whether Petitioner should have been awarded attorney's fees for her presentation at the district court level. We affirm on all issues except the second.

FACTS

The parties were married on September 4, 1952. Four children issued from the marriage, all requiring specialized care and treatment due to varying degrees of developmental disability. By 1964 both the youngest and oldest child had been made wards of the state and committed to Los Lunas Training School. These two children remained under the direct care and control of the Los Lunas facility at all times relevant to this case. The oldest child attained majority on June 27, 1971, the youngest on January 28, 1977.

The parties were divorced by final decree entered May 26, 1970 by Judge Edwin Swope of the Bernalillo County District Court. On June 28, 1971 a different judge entered an amended final decree which added the phrase "per month" after the one hundred dollar child support figure in the original final decree. The amendment was done ex parte. Respondent never moved the district court for a modification of the terms of either decree.

One of the twin children remained intermittently under Petitioner's direct care from the time of the divorce until the child was transferred to a group home in Albuquerque in January 1976. The other twin remained under the direct care of Petitioner through December 1972. Since that time he has voluntarily lived with Respondent.

ASSERTED AMBIGUITY

Respondent initially contends that the original final decree of May 26, 1970 was ambiguous and should not have been amended ex parte. The original final decree in relevant part awarded custody of all four children to Petitioner and also awarded her "one hundred dollars ($100)" in child support. The sole change made by the judge in the amended final decree was the addition of the phrase "per month" after the one hundred dollar child support figure.

The omission of the phrase "per month" was clearly a clerical mistake apparent on the face of the record. On Petitioner's timely motion this mistake was properly corrected without resort to extrinsic evidence pursuant to Rule 60(a) of the New Mexico Rules of Civil Procedure NMSA 1953, Section 21-1-1(60)(a) (Repl.Vol. 4, 1970), presently compiled as NMSA 1978, Civ.P.R. 60(a) (Repl.Pamp.1980). Telephonic, Inc. v. Montgomery Plaza Co., 87 N.M. 407, 534 P.2d 1119 (Ct.App.1975); see De Baca v. Sais, 44 N.M. 105, 99 P.2d 106 (1940).

This simple amendment obviously did not purport to clear up any ambiguity that Respondent alleges existed regarding the exact amount of child support that was to apply to each minor child. Respondent asserts that he should have been afforded an opportunity to present parole evidence prior to modification so that the support terms could have been modified to apply to the twins only and to reflect the fact that another child had attained majority. In New Mexico, the duty of a parent to support a child continues until the child reaches the age of majority. NMSA 1978, Secs. 28-6-1 and 28-6-6 (Repl.Pamp.1983); Phelps v. Phelps, 85 NM 62, 509 P.2d 254 (1973); Coe's Estate, 56 N.M. 578, 247 P.2d 162 (1952). The well-established general rule is that an undivided support award directed at more than one child is presumed to continue in force for the full amount until the youngest child reaches majority. Annot., 2 A.L.R.3d 596 (1965). We see no compelling reason to depart from this view.

Respondent's proper remedy, if indeed he though the final decree ambiguous and/or unjust, would have been to seek prospective modification of the decree on the basis of changed circumstances. We note as to the alleged ambiguity that Respondent at no time petitioned the district court for any modification of either decree. Respondent, having failed to timely petition for possible relief from this asserted ambiguity, cannot now seize upon the mere ex parte correction of a clerical error and expand this into an inquiry regarding his interpretation of his obligations under the final decree. We conclude that the decrees were not ambiguous in their terms, and thus were enforceable.

STATUTE OF LIMITATIONS

A hearing was held on Petitioner's December 15, 1981 motion to reduce accrued child support arrearages to judgment. Petitioner was awarded a judgment of $7900.00. The district court found that Respondent had not made any of the monthly child support payments required by the amended final decree. The $7900.00 figure was based on the calculation that the monthly payments should have been made during the seventy-nine months that elapsed between the entry of the original May 26, 1970 divorce decree and January 28, 1977, the date that the youngest child reached majority.

Respondent's central contention is that Petitioner's action to collect accrued arrearages at this late date is barred by the statute of limitations. He maintains that over eleven and one-half years had passed between the May 1970 entry of the original final decree and Petitioner's December 1981 petition. Respondent primarily maintains that the seven year statute of limitations applicable to judgments in effect in December 1981 (formerly compiled as NMSA 1978, Section 37-1-2) should apply and bar any claim for arrearages that accrued seven years prior to the date Petitioner filed her petition.

Respondent's argument thus presents the question of whether accrued and unpaid periodic child support installments mandated in a New Mexico divorce decree are considered final judgments in New Mexico on the date they become due. This appears to be a case of first impression as the parties have not cited, and our research has not revealed, any New Mexico authority directly on point.

The applicability of any statute of limitations period will depend on the characterization of monthly child support installments as they become due. Both Corliss v. Corliss, 89 N.M. 235, 549 P.2d 1070 (1976), and Slade v. Slade, 81 N.M. 462, 468 P.2d 627 (1970), involved the characterization and enforcement of monthly child support provisions incorporated in foreign divorce decrees. In Slade this Court considered whether the New Mexico statute of limitations applicable to judgments applied to bar recovery of accrued child support arrearages under a Kansas divorce decree. Looking to Kansas law to determine the nature of a child support award, we concluded that the child support award was a judgment in installments. We further concluded that the seven year New Mexico statute of limitations then applicable to judgments (formerly compiled as NMSA 1953, Section 23-1-2 (Supp.1969)) applied and began to run on each monthly installment on the date it became due and unpaid. Accordingly, all uncollected installments that accrued more than seven years prior to the initiation of the action to collect the arrearages were deemed subject to the seven year statute of limitations applicable to judgments generally.

In considering the enforceability of a Missouri divorce decree, this Court in Corliss looked to Missouri law to determine whether child support awarded by the decree was subject to retroactive modification. This Court concluded that since Missouri courts had no power to modify or forgive accrued child support arrearages under a Missouri decree, New Mexico Courts could not do so.

Both Slade and Corliss lend support to a characterization of each monthly installment as a final judgment. In both cases, once the installment had become due, the amount payable was essentially deemed liquidated and, as with final judgments, not subject to retroactive modification. Corliss in particular concluded that child support arrearages would not be modified once accrued. Although this conclusion arose out of an application of Missouri law to a Missouri decree, the same characterization has obtained regarding New Mexico decrees.

In Gomez v. Gomez, 92 N.M. 310, 587 P.2d 963 (1978), overruled on other grounds, Montoya v. Montoya, 95 N.M. 189, 619 P.2d 1234 (1980), this Court considered whether weekly child support installment payments mandated in a New Mexico decree were modifiable once accrued. The then controlling New Mexico statute, NMSA 1953, Section 22-7-6(C) (Supp.1975) was compared with the substantially identical Missouri statute construed in Corliss. This Court held that, as with accrued Missouri installments, past due child support payments mandated in a New Mexico divorce decree were deemed not subject to retroactive modification.

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