Bustos v. Bustos

• Decision Date: 27 March 2000
• Docket Number: No. 20,157.,20,157.
• Citation: 999 P.2d 1074,128 N.M. 842
• Parties: Richard H. BUSTOS, Petitioner-Appellant/Cross-Appellee, v. Stella BUSTOS, Respondent-Appellee/Cross-Appellant.
• Court: Court of Appeals of New Mexico

999 P.2d 1074

128 N.M. 842

Richard H. BUSTOS, Petitioner-Appellant/Cross-Appellee, v. Stella BUSTOS, Respondent-Appellee/Cross-Appellant.

No. 20,157.

Court of Appeals of New Mexico.

March 27, 2000.

Lisa B. Riley McCormick, Caraway, Tabor & Madrid Carlsbad, for Appellant/Cross-Appellee.

Mary W. Rosner Las Cruces, for Appellee/Cross-Appellant.

OPINION

SUTIN, J.

{1} Father, Richard Bustos, appeals from a judgment awarding Mother, Stella Bustos, child support arrearages. Mother cross-appeals because the district court did not award her attorney fees or interest on the arrearages. We affirm the court's arrearages award and denial of attorney fees. We reverse the court's denial of interest.

FACTUAL AND PROCEDURAL HISTORY

{2} Mother and Father were divorced in 1984. They have two daughters, Alisha, born October 28, 1976, and Ashley, born May 21, 1981. The 1984 property settlement and child custody agreement awarded Mother:

$150.00 per child as child support for the parties['] minor children. The total amount of $300.00 per month shall be paid not later than the 10th day of each month commencing August 1984; and thereafter until the minor children reach the age of majority or are sooner emancipated.

{3} A modification order was entered on July 20, 1993, following a motion by Mother to modify the 1984 decree by setting child support pursuant to the child support guidelines then in effect. See NMSA 1978, § 40-4-11.1 (1995). This order stated:

Petitioner [Father] shall pay the Respondent [Mother] child support for the minor children of the parties at the rate of $706.44 per month beginning January 1, 1993.

This 1993 modification order awarded Mother attorney fees and child support arrearages. The order further stated that "[e]very term and condition in the 1984 Judgment and Decree of Dissolution of Marriage not herein-above modified shall remain in full force and effect."

{4} On January 21, 1994, Father's attorney sent a letter to Mother's attorney requesting a reduction in child support to $350.00 a month. Father's request was based on his attorney's calculation of child support, which in turn was based on Father's reduced number of work hours. Father received no response from Mother. Father was advised by his lawyer that he needed to go into court to amend the child support order. The lawyer required a $500 retainer, so Father decided not to pursue a modification in court because he could not afford the retainer. Father considered his support obligation to be $350.00 per month, based on his attorney's calculation under the child support guidelines. When Alisha became 18 on October 28, 1994, Father considered his obligation to be half that. Thus, although Father was required under the 1993 modification order to begin paying $706.44 per month beginning January 1, 1993, Father instead made significantly reduced monthly payments.

{5} On June 18, 1998, Mother filed a petition for an order requiring Father to show cause why he should not pay child support arrearages. During the entire period from the July 1993 modification order until her June 1998 petition for an order to show cause, a period of five years, Mother did not contact Father to object to Father's self-decreed modification of the court's 1993 modification order. Nor, during that time, did Father contact Mother, except for his January 21, 1994, letter. Mother testified that she did not receive the $500.00 for attorney fees or the $2,438.64 in arrearages awarded to her in the 1993 modification order. Father intimates that those amounts were included in the payments he made over the five years.

{6} The district court entered judgment on December 17, 1998, awarding Mother $33,861.92 in back child support. The court denied Mother interest on that back support, and also denied her request for attorney fees.

FATHER'S APPEAL

{7} Father advances several points for reversal: (1) the district court erred in holding that the child support award in the modification order was an "undivided" support award, rather than a "divided" one; (2) the undivided award was fundamentally unfair because it required Father to pay child support on an emancipated child; (3) the court lacked jurisdiction to award arrearages that included support attributable to the emancipated child; (4) the court erred in awarding arrearages for the emancipated child because child support automatically terminates upon emancipation; and (5) the court erred in not finding Mother's claim to be barred by laches, equitable estoppel, or waiver by estoppel.

{8} The first four issues depend for their success upon whether the award in the 1993 modification order was one that remained in effect, notwithstanding the fact that one of the two children became an adult. This is a legal issue, which we review de novo, looking at whether the court applied the correct law. The fifth issue, together with Mother's request for attorney fees, places before us the unfortunate inequities that result when one parent disregards an order and the other parent does not enforce the order.

A. The Court Did Not Err in Awarding Arrearages Based on an Undivided Award

{9} The district court's arrearages award included amounts that Father unilaterally decided not to pay after his older child. Alisha, reached the age of 18. To overturn this award, Father argues that a parent generally has no obligation to pay post-minority child support. See Christiansen v. Christiansen, 100 N.M. 102, 104, 666 P.2d 781, 783 (1983)

. With this basic tenet in hand, Father wants to drive a wedge through the determination of the district court that the award was undivided. The district court found that none of the child support obligation was automatically discontinued once Alisha reached 18, but rather the entire child support obligation remained during the minority of the second child, Ashley, unless the order was modified. Father argues that the award in the 1993 modification order must be construed as a divided award. Father faces substantial hurdles.

{10} The modification order does not award a specific amount per child; rather, it awards one amount for "child support for the two minor children." The award reads as an undivided award. "[A]n undivided support award applicable to more than one child is presumed to continue in force for the full amount specified in the decree until the youngest child attains the age of majority." McCurry v. McCurry, 117 N.M. 564, 566, 874 P.2d 25, 27 (Ct.App.1994) (citing Britton v. Britton, 100 N.M. 424, 671 P.2d 1135 (1983)); cf. Hopkins v. Hopkins, 109 N.M. 233, 237, 784 P.2d 420, 424 (Ct.App.1989)

(holding that court did not abuse its discretion in requiring husband to pay $500 a month child support arrearages for two children after husband unilaterally withheld $250.00 a month for the two-year period of time that one child lived with him).

{11} Father argues that McCurry and Britton were decided without consideration of the structure and purpose of the guidelines as set out in NMSA 1978, § 40-4-11.1(A) and (B) (as amended through 1995). Before the guidelines, according to Father, support awards were unguided with respect to divided and undivided awards. Interpretations of prior awards were thus inconsistent and problematic because of the difficulty in determining, in retrospect, how much of the total award was intended to be for each child and whether the court's intention was to order an equal amount for each child or to award different amounts based on special needs.

{12} Father asserts that the guidelines eliminated these problems, in that under the guidelines "[t]he number of children is an essential factor in calculating a guideline amount of child support." From this premise, Father concludes that "every guideline child support award [implies] a certain amount attributed to each child," and that "the exact breakdown of how much of the total support [is] attributed to each child is set out in black and white in the ... Statutes." Father points out that all one has to do is "refer to the chart contained in the New Mexico Statutes to see exactly how much of that total award was attributed to each child." Father thus construes the guideline award in the 1993 modification order to be "more similar to divided support awards" requiring automatic reduction when a child is emancipated. We find Father's interpretative analysis unpersuasive.

{13} The guidelines were enacted in 1988 and structurally remain the same despite revision of the amounts to be awarded. Though detailed and elaborate, the guidelines are silent on the distinction between divided and undivided awards. Specifically, they do not say whether a support award is automatically reduced once one of two or more children reaches the age of majority.

{14} While the guidelines clearly make a distinction in the amount of child support to be awarded for one child and two children, and clearly add amounts to the support obligation with the addition of the number of children, the guidelines neither state nor imply that a certain amount is specifically attributed as support for child one, with an additional amount specifically attributed as support for child two. Rather, the guidelines require a tally of the number of children, a determination of the Basic Support using the combined income of the parents based on that number and then a final determination of each parent's net obligation to determine the monthly support obligation. As we recently stated:

The basic support for an additional child does not equal the amount of basic support for one child. The table recognizes that an additional child does not add as much expense to the household as did the first child. See Spingola v. Spingola, 91 N.M. 737, 744, 580 P.2d 958, 965 (1978)

("Experience indicates that the support level for one child must be considerably higher than that necessary for additional children.").

Erickson v. Erickson, 1999-NMCA-056, ¶ 12, 127 N.M. 140, 978 P.2d 347. "The...