Dillard v. Dillard

• Decision Date: 28 August 1986
• Docket Number: No. 8693,8693
• Citation: 1986 NMCA 88,104 N.M. 763,727 P.2d 71
• Parties: David P. DILLARD, Petitioner-Appellee, v. Billye J. DILLARD, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 71

727 P.2d 71

104 N.M. 763

David P. DILLARD, Petitioner-Appellee, v. Billye J. DILLARD, Respondent-Appellant.

No. 8693.

Court of Appeals of New Mexico.

Aug. 28, 1986.

[104 NM 764] George A. Graham, Jr., Siegenthaler & Graham, Artesia, Sarah M. Singleton, Montgomery & Andrews, P.A., Santa Fe, for petitioner-appellee.

Michael T. Murphy, Rosenberg, Shuler, Murphy & Meyer, Carlsbad, for respondent-appellant.

OPINION

GARCIA, Judge.

The parties were divorced in July of 1977. They had three minor children at that time, for whom the trial court ordered David Dillard (petitioner) to pay child support to Billye Dillard (respondent). Petitioner, under the original decree was granted "reasonable visitation." Shortly after the divorce, respondent and the children moved to the state of Washington where they had previously resided. Petitioner, in 1978, alleged that respondent was denying him reasonable visitation. Thus began a running battle between the Eddy County and Kittitas County (Washington) courts, each of which issued conflicting orders regarding visitation and child support. Respondent seeks to appeal two orders issued by the Eddy County trial court "modifying" the child support payments of petitioner.

Respondent first seeks to appeal the order of June 1979. This order, resulting from petitioner's motion for child support modification on the grounds that respondent was withholding reasonable visitation, directed petitioner to pay his previously ordered child support into a bank account "until such time as Billye J. Dillard provides reasonable visitation * * * in the State of New Mexico, and at the time she provides reasonable visitation rights the court will make a determination as to whether she is entitled to any of the funds that will be placed in the savings account."

Respondent additionally seeks to appeal a second order entered in June of 1985, which directs that the funds accumulated pursuant to the 1979 order be used to create a trust for the post-minority education of the parties' children. The 1985 order provides that any money left over after the children complete their education, or fail to attend college for more than one year, reverts to petitioner.

I. PROCEDURAL ISSUES ON 1979 ORDER

Petitioner raises several procedural problems which he maintains prevent this court's consideration of respondent's appeal on the merits. We address the following two concerns:

Timeliness of Respondent's Appeal

Petitioner contends this court lacks jurisdiction to review the 1979 order, because on all issues, other than how the trust funds should be dispersed, the order was final in 1979. Consequently, petitioner asks this court to rule that any argument as to the 1979 order is not timely. We view the dispositive questions on appeal as integrally related to the issue of how the trust funds should be dispersed. For that reason, we do not reach the question of whether respondent's appeal is timely as to the 1979 order.

Respondent's failure to include record of hearing preceding 1979 order

Although we view the dispositive issues as part of respondent's contentions concerning the 1985 order, we note, for the guidance of the bar, the following problem. It is quite clear that it is respondent's duty to see that the record necessary to review alleged errors is before the court. Three Rivers Land Co. Inc. v. Maddoux, 98 N.M. 690, 652 P.2d 240 (1982). To the extent that respondent's attempt to challenge the 1979 order is based on a lack of substantial evidence, respondent has failed to provide the necessary record. Berlint v. Bonn, 102 N.M. 394, 696 P.2d 482 (Ct.App.1985); see Luxton v. Luxton, 98 N.M. 276, 648 P.2d 315 (1982).

Respondent further asserts that the trial court's failure to find that respondent was able to adequately support the children before ordering the accumulation of the child support in 1979 was an abuse of discretion. On its face, the 1979 order does not contain such a finding. However, we do not reach the necessity for such a finding because we have no record of any tendered findings or conclusions by respondent either oral or written. Respondent admits that she made no written request for findings and conclusions. In the absence of this record, respondent has waived any objection to the court's findings. Crownover v. National Farmer's Union Property & Casualty Co., 100 N.M. 568, 673 P.2d 1301 (1983); see also Spingola v. Spingola, 91 N.M. 737, 580 P.2d 958 (1978) ("It is the duty of the trial court to find all the ultimate facts where a request is seasonably and properly made.") Id. at 742, 580 P.2d at 963. Respondent's failure to include the record of the proceedings prior to the 1979 order precludes our review of any part of that order.

II. COURT'S AUTHORITY TO PROMULGATE 1985 ORDER CREATING TRUST FUND; REINSTATING $200 PER MONTH PAYMENTS TO RESPONDENT FOR YOUNGEST CHILD; PROVIDING FOR REVERSION OF MONIES TO PETITIONER

Respondent raises two alleged errors in regard to the 1985 order:

(1) to the extent that the 1985 order provides for payment of accumulated child support monies to a trust for use in meeting the children's educational needs past the age of 18, the court exceeded its jurisdiction;

(2) the provision in the 1985 order providing for a reversion of unused funds to petitioner is impermissible.

As a preliminary matter, we deal with petitioner's lack of standing allegations. Petitioner asserts that because respondent is not the parent required by the court to fund the trust created by the 1985 order, she cannot object to the creation of the trust. Petitioner further asserts that because respondent, pursuant to the 1985 order, will receive the same amount of child support for the remaining minor child (commencing November 1, 1984) as was ordered in the original decree, respondent has no basis for objection.

Respondent counters that the trial court's order exceeds that court's jurisdiction under NMSA 1978, Section 40-4-7(C) (Repl.Pamp.1986). As a party to this action, respondent may raise jurisdictional error for the first time on appeal. See generally Lasley v. Baca, 95 N.M. 791, 626 P.2d 1288 (1981). Indeed, this court may raise the question of subject matter jurisdiction on its own motion. State v. Doe, 91 N.M. 356, 573 P.2d 1211 (Ct.App.1977).

To the extent that petitioner's standing argument goes to the question of whether respondent is an aggrieved party, we find that she has a "pecuniary interest" affected by the 1985 order. See St. Sauver v. New Mexico Peterbilt, Inc., 101 N.M. 84, 678 P.2d 712 (Ct.App.1984). We reach this conclusion by acknowledging the simple fact that since 1979, respondent has supported the parties' children without the benefit of the court-ordered child support. Contrary to petitioner's argument, we do not view the 1979 order as a valid divestment of respondent's pecuniary interest.

As to respondent's jurisdictional argument, we cannot agree with petitioner's analysis of the cases where our courts have held that the trial court may not extend child support benefits past the child's attainment of majority. Psomas v. Psomas, 99 N.M. 606, 607, 661 P.2d 884 (1982), states, "We agree with husband that the court had no jurisdiction to provide for children who have passed the age of majority." See also Spingola v. Spingola, 93 N.M. 598, 603 P.2d 708 (1979); Phelps v. Phelps, 85 N.M. 62, 509 P.2d 254 (1973); Sec. 40-4-7. Our determination of the trial court's jurisdiction is controlled by our interpretation of the authority granted by the applicable statute, not by the party asserting a lack of jurisdiction. A general reservation of jurisdiction over the accumulated child support does not permit the trial court to exceed its statutory authority. See Unser v. Unser, 86 N.M. 648, 526 P.2d 790 (1974).

Petitioner further maintains that Section 40-4-7(C) provides authority for the trial court's creation of this educational trust. The statute provides:

[I]f any of the property decreed or funds created for the maintenance and education of the children shall remain on hand and be undisposed of at the time the minor children reach the age of majority, the same may be disposed of by the court as it may deem just and proper.

The statutory language encompasses funds that "remain" in the sense of the residuum of funds that have been applied to the children's needs, not funds that the trial court ordered accumulated and which never reached the children ordered to be supported. Petitioner's reliance on this language to somehow extend the court's jurisdiction to the creation of an educational trust after majority is misplaced. See Spingola v. Spingola (the subject matter jurisdiction of the court, limited to pre-majority support decrees, cannot be extended by agreement of the parties); In Re Coe's Estate, 56 N.M. 578, 247 P.2d 162 (1952).

As a matter of policy, this court does not look favorably upon a six-year accumulation of child support payments at a time when the minor children are most in need of their parents' financial support. See Mask v. Mask, 95 N.M. 229, 620 P.2d 883 (1980) (child's needs are current and expectation of future payment does not meet the need).

We hold that the trial court acted beyond its statutory authority in establishing a trust which provided for the parties' children's post-minority education.

III. SUFFICIENCY OF EVIDENCE

We do not address respondent's sufficiency claim on appeal as to the 1985 order because of our disposition of the jurisdictional issue.

Petitioner claims that respondent waived her right to argue that specific findings were necessary because she failed to file a written request for findings or to tender findings and conclusions. See NMSA 1978, Civ.P.R. 52(B)(1)(f) (Repl.Pamp.1980).

We agree with petitioner that a failure to make a written request for findings of fact and conclusions of law, generally, precludes petitioner's requested evidentiary review. Pedigo v. Valley Mobile Homes, Inc., 97 N.M. 795, ...