Bruton v. Bruton
| Decision Date | 12 June 2019 |
| Docket Number | No. A-1-CA-36661,A-1-CA-36661 |
| Parties | LISA BRUTON, Petitioner-Appellee, v. KENNETH BRUTON, Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
Gary R. Fernandez
Grants, NM
for Appellee
Carter & Valle Law Firm, P.C.
Linda Lillie Ellison
Albuquerque, NM
for Appellant
{1} Kenneth Bruton (Husband) appeals the district court's decision in connection with his divorce from Lisa Bruton (Wife). Husband contends the district court erred: (1) on several grounds in calculating child support, (2) in characterizing certain real property and the marital residence as community property, and (3) in dividing miscellaneous property. We affirm.
{2} Husband and Wife were married in 1999. They had a son in 2000 and a daughter in 2005 (collectively, Children). Husband and Wife operated a guided hunting business jointly with another partner for several years prior to their separation. Husband also received and continues to receive Social Security Disability Income (SSDI). Each child receives SSDI derivative benefits of $150 per month based on Husband's disability.
{3} Wife petitioned for dissolution of the marriage in 2015. Soon after, the district court entered a temporary order providing, among other things, that the parties agreed that the monthly SSDI derivative payments covered any child support needs. The district court held a trial on contested issues over four days in 2016 and 2017. The district court entered a lengthy decision summarizing the evidence presented at trial, ordering child support, and dividing the parties' real and personal property. Husband sought reconsideration of the district court's decision. The district court made certain amendments to its original decision based on Husband's motion but largely ratified the original decision, and Husband appealed. We reserve further discussion of the facts for our analysis.
{4} Husband raises three issues concerning the child support award: (1) that the district court erred in determining the parties' respective incomes used to calculate child support, (2) that the district court erred by failing to grant him an unconditional credit for Children's SSDI derivative payments toward the child support award, and (3) that the district court erred in using Worksheet A to calculate child support. "The setting 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." Grant v. Cumiford, 2005-NMCA-058, ¶ 21, 137 N.M. 485, 112 P.3d 1142 (internal quotation marks and citation omitted). We review any questions of law de novo. Id.
{5} Husband contends the district court erred in calculating both his and Wife's gross monthly incomes. We review the district court's findings regarding parental incomes, as required by the guidelines to apportion child support, for substantial evidence. Id. "Income," for purposes of calculating child support, "means actual gross income of a parent if employed to full capacity or potential income if unemployed or underemployed." NMSA 1978, § 40-4-11.1(C)(1) (2008). "Gross income," in turn, is "income from any source and includes but is not limited to income from salary, wages, [and] tips," as well as "social security benefits" and "disability insurance benefits." Section 40-4-11.1(C)(2). "Gross income" also includes "income from self-employment," defined as "gross receipts minus ordinary and necessary expenses required to produce" the income. Section 40-4-11.1(C)(2)(b).
{6} First, Husband contends the district court erred in computing his monthly income above an amount supported by his testimony.1 Various evidence was presented on Husband's gross income. Wife testified that as guides and outfitters prior to their separation, Husband and Wife were often paid and tipped in large quantities of cash to avoid taxes and affecting Husband's SSDI benefits. She added that she thought Husband alone, based on reports from their bookkeeper, received at least $50,000 in cash payments each year. A former business partner testified that Husband and Wife grossed approximately $78,400 combined from the guiding and outfitting business in 2013 and 2014, and Husband grossed $42,000 in 2015. Husband testified that he continued to actively work as a guide for a local outfitting company, making a $2,000 monthly wage, as well as doing other odd jobs for varied amounts.
{7} In the light of the foregoing, the district court was free to give Husband's testimony regarding his current income less weight than the evidence regarding Husband's income from prior years. See Lopez v. Adams, 1993-NMCA-150, ¶ 2, 116 N.M. 757, 867 P.2d 427 (). The district court calculated Husband's non-disability income at approximately $39,200, which was consistent with Husband's income from the guiding business in 2013 and 2014 and less than his income in 2015. See Boutz v. Donaldson, 1999-NMCA-131, ¶ 7, 128 N.M. 232, 991 P.2d 517 (); Major v. Major 1998-NMCA-001, ¶ 12, 124 N.M. 436, 952 P.2d 37 (). Further, it was undisputed Husband received approximately $12,000 per year, or $1,000 monthly, in disability income. Based on Husband's testimony, the evidence regarding his business income from the prior three years, the evidence regarding cash payment in his line of work, and the undisputed evidence regarding Husband's disability income, substantial evidence supports the district court's calculation of Husband's annual gross income at $51,213 ($39,213 in non-disability and $12,000 in SSDI) and his monthly gross income at $4,268.
{8} Second, Husband argues Wife should have been estopped from presenting income evidence different from that listed in their joint tax returns in 2011, 2012, and 2013, and the district court erred in considering such evidence. But as this Court has observed multiple times, the income calculation "is more concerned with a parent's actual cash flow than . . . with income as represented on tax returns." Jury v. Jury, 2017-NMCA-036, ¶ 30, 392 P.3d 242 (internal quotation marks and citation omitted). Moreover, this Court has explained a district court errs in limiting its income calculation to the figures shown on a tax return where the record reveals additional sources of revenue because our child support guidelines require consideration of income "from anysource." Padilla v. Montano, 1993-NMCA-127, ¶ 37, 116 N.M. 398, 862 P.2d 1257. Here, the district court correctly considered additional evidence of Husband's actual gross income beyond the figures shown on the tax returns and substantial evidence supports the district court's calculation of Husband's actual gross income.
{9} Third, Husband contends the district court erred in not imputing additional income to Wife as an underemployed parent under the child support guidelines. See § 40-4-11.1(C)(1) (). The district court calculated Wife's gross monthly income at $642, based on evidence that she made this amount as a cook for a local school district. Husband argues the district court should have imputed either their prior-year income to Wife, based on Wife's testimony she had returned to working with outfitters, or, in the alternative, the court should have imputed a full-time minimum wage. Husband presented no argument to the district court regarding imputation of Wife's prior level of income, and thus we decline to review the argument on appeal. See Spectron Dev. Lab. v. Am. Hollow Boring Co., 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d 852 (); Woolwine v. Furr's, Inc., 1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (). Further, Husband presented no evidence that additional employment opportunities at full-time minimum wage were available to Wife. See Cherpelis v. Cherpelis, 1996-NMCA-037, ¶ 13, 121 N.M. 500, 914 P.2d 637 (). In the absence of any record on the question of Wife's full employment, we cannot conclude the district court abused its discretion in calculating Wife's gross monthly income at $642. See id.; see also State ex rel. Human Servs. Dep't v. Kelley, 2003-NMCA-050, ¶¶ 14-15, 133 N.M. 510, 64 P.3d 537 ().
{10} We conclude the district court did not err in calculating the parties' incomes for child support purposes.
{11} Husband contends the district court erred by...
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