DeTevis v. Aragon

• Decision Date: 09 October 1986
• Docket Number: No. 8762,8762
• Citation: 1986 NMCA 105,727 P.2d 558,104 N.M. 793
• Parties: Barbara DeTEVIS, Formerly Barbara Aragon, Petitioner-Appellant and Cross-Appellee, v. Steven L. ARAGON, Respondent-Appellee and Cross-Appellant, and Lydia Roybal Aragon, Intervenor.
• Court: Court of Appeals of New Mexico

Page 558

727 P.2d 558

104 N.M. 793

Barbara DeTEVIS, Formerly Barbara Aragon Petitioner-Appellant and Cross-Appellee, v. Steven L. ARAGON, Respondent-Appellee and Cross-Appellant and Lydia Roybal Aragon, Intervenor.

No. 8762.

Court of Appeals of New Mexico.

Oct. 9, 1986.

[104 N.M. 796] Michael M. Rueckhaus, P.C., Albuquerque, for petitioner-appellant and cross-appellee.

Daniel E. Pedrick, Albuquerque, for respondent-appellee and cross-appellant.

Charlotte Mary Toulouse, Toulouse, Toulouse & Garcia, P.A., Albuquerque, for intervenor.

OPINION

DONNELLY, Judge.

This case involves separate appeals by former spouses from denial of their respective motions. Wife appeals from denial of her motions to increase awards of both alimony and child support; husband cross-appeals from denial of his motions to reduce alimony and child support. We affirm in part, reverse in part, and remand for further proceedings.

In her appeal, wife raises two issues: (1) whether the court erred in failing to compel the production of certain documents relating to the income of husband's new wife; and (2) whether the court erred in refusing to consider the income of husband's new spouse in determining whether there had been a substantial change of circumstances. Wife's brief-in-chief lists several issues not raised in her docketing statement; nonjurisdictional issues which are not addressed in the docketing statement may not be asserted for the first time in the brief-in-chief. State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980).

On his cross-appeal husband asserts: (1) that the trial court erred in failing to order his former wife to contribute to the support of their two sons, who reside with him; and (2) that the trial court abused its discretion in not reducing his child support and alimony obligations.

Husband and wife were divorced on March 20, 1984, following a marriage of fourteen years. The parties agreed to a stipulated marital settlement agreement which was approved by the court. The decree provided that the parties should have joint custody of their three children, that the youngest child would reside with wife, and that the two older children would reside with husband. The decree also provided that husband would pay wife $450 per month as alimony, and the additional sum of $400 per month as child support for his minor daughter. Neither the settlement agreement nor the final divorce decree addressed the issue of wife paying any child support to husband for the two boys placed in husband's primary custody.

Husband entered into a second marriage on July 21, 1984 to the intervenor. On October 2, 1984, husband filed a motion to decrease alimony, and wife responded by filing a reply and counter-petition asking for increased child support. Husband's new wife petitioned and was allowed to intervene in the case below. Thereafter, husband filed a motion to reduce the amount of child support he was required to pay, and requested that wife be required to pay child support for the support of the two teenage boys residing with him. Husband is a dentist and wife is employed full-time as a data processing operator.

Following the granting of intervention in the cause, wife filed requests for production of financial data from intervenor. Both husband and intervenor objected to this demand.

After several hearings involving the claims of the parties, the trial court denied both wife's and husband's respective motions and adopted findings of fact and conclusions of law determining that there had been no significant change of circumstances warranting modification of either the alimony or child support obligations of the parties.

WIFE'S APPEAL

(1) REQUESTED DISCOVERY

Wife argues that the trial court erred in denying her requests for production of documents from the intervenor relating to intervenor's community earnings. Wife asserts this information was relevant and necessary in support of her motions to obtain an increase in child support from husband. The motion to produce filed by wife and served upon intervenor sought, among other things, intervenor's earning records for 1984, 1983 tax returns, statements and cancelled checks for 1984, statements of all savings accounts for 1984 to the present, medical insurance coverage, retirement earnings, a copy of any prenuptial agreement, and statements of any debts incurred by intervenor exceeding the sum of $100.

Both husband and intervenor objected to the motion to produce, contending the requested information was irrelevant because intervenor had no duty to support wife or the minor children in question. The trial court reserved ruling on the relevance of intervenor's income but ordered intervenor to produce her earning records for income received from all sources since January 1, 1984, the medical insurance policies covering husband and the two sons residing with intervenor and husband, and any information relating to profit sharing, retirement, IRA or Keogh plans entered into since intervenor's marriage. The court sustained intervenor's objections to the other requests. The parties stipulated there had been no prenuptial agreement.

We find no error in the court's ruling. The trial court directed production of most of the items sought by wife which related to both intervenor's earnings and indebtedness subsequent to her marriage to husband. Although the rules favor the allowance of liberal pretrial discovery, Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982), the trial court is vested with discretion in determining whether to limit discovery. Salitan v. Carrillo, 69 N.M. 476, 368 P.2d 149 (1961). A trial court's ruling limiting discovery is subject to reversal only upon a showing of an abuse of discretion. Id. See also Richards v. Upjohn Co., 95 N.M. 675, 625 P.2d 1192 (Ct.App.1980); Griego v. Grieco, 90 N.M. 174, 561 P.2d 36 (Ct.App.1977).

The record reflects that the trial court permitted wife broad discovery. Where it appears that the party requesting discovery has already been granted sufficient information, discovery may properly be denied or limited. Blake v. Blake, 102 N.M. 354, 695 P.2d 838 (Ct.App.1985). Here, the trial court granted extensive discovery as to intervenor's financial income and indebtedness, and wife fails to point out how she was prejudiced by denial of the additional items. The trial court's order as to discovery is affirmed.

(2) RELEVANCY OF INTERVENOR'S INCOME

Wife asserts on appeal that the trial court erred in refusing to consider intervenor's community property earnings in determining whether a substantial change occurred warranting an increase in child support for the daughter residing with wife, and whether husband's financial resources were such that an increase in child support was proper.

Wife contends that, while it is clear that intervenor has no duty to support the stepchild residing with wife, nevertheless intervenor's earnings following her marriage to husband constitute community property and husband has a vested one-half interest therein. See Henderson v. Lekvold, 95 N.M. 288, 621 P.2d 505 (1980). The trial court agreed that the new wife's income was community property, but deemed Henderson to preclude consideration of that income. At the hearing on wife's motion to increase child support and husband's motion to reduce alimony and child support, the trial court ruled that it would not consider the community earnings of intervenor in determining whether husband's support obligations should be modified.

The legal obligation of a parent to provide child support is not changed by virtue of the remarriage of one or both of the natural parents. In the absence of adoption, the primary obligation of support is not shifted from a parent to a stepparent. Harper v. New Mexico Department of Human Services, 95 N.M. 471, 623 P.2d 985 (1980).

Was it error to refuse to consider the community earnings of husband's new wife in determining whether husband's child support obligations should be increased? In Spingola v. Spingola, 91 N.M. 737, 744, 580 P.2d 958, 965 (1978), the court held that "[a] subsequent remarriage by either or both of the parties may have some effect upon the financial resources available to support and maintain the children. Albright v. Albright, 45 N.M. 302, 304, 115 P.2d 59, 60 (1941). Philbin v. Philbin, 19 Cal.App.3d 115, 96 Cal.Rptr. 408 (1971)." Similarly, in Henderson, the supreme court noted that remarriage is one of a number of factors to consider when acting upon a motion to modify an award of child support. See also Smith v. Smith, 98 N.M. 468, 649 P.2d 1381 (1982); 89 A.L.R.2d 106 (1963).

Under New Mexico's community property law, earnings attributable to the labor and talent of a spouse are community property. Douglas v. Douglas, 101 N.M. 570, 686 P.2d 260 (Ct.App.1984). Both spouses have a present vested right to one-half of the community property derived from their marriage. Harper v. New Mexico Department of Human Services. See also Central Adjustment Bureau, Inc. v. Thevenet, 101 N.M. 612, 686 P.2d 954 (1984). The statutory definition of community property excludes that property of a spouse which qualifies as separate property. NMSA 1978, Sec. 40-3-8 (Repl.1986). Under our cases, a spouse has a legal obligation to use his or her community property interest, even if derived from a subsequent marriage, to support his or her children. Harper v. New Mexico Department of Human Services. This principle is consistent with the fact that the interest of the obligor spouse is property generally subject to the rights of creditors in satisfying separate debts. See NMSA 1978, Sec. 40-3-10 (Repl.1986). Separate property belonging to husband's new wife, however, must be viewed differently. Id. NMSA 1978, Section 40-4-11(A) (Repl.1986) provides that in determining the liability of a parent for the support of minor children, or the amount of that support, the court "shall make a specific determination and finding...