Gonzales v. Shaw
| Decision Date | 17 July 2018 |
| Docket Number | NO. A-1-CA-34742,A-1-CA-34742 |
| Parties | Christina J. GONZALES, Petitioner-Appellee, v. Richard S. SHAW, Respondent-Appellant. |
| Court | Court of Appeals of New Mexico |
Monica D. Baca, Albuquerque, NM, for Appellee.
Trujillo Dodd, Torres, O’Brien, Sanchez, L.L.C., Donna S. Trujillo Dodd, Albuquerque, NM, for Appellant.
{1} Respondent Richard Shaw appeals the district court’s order setting child support for his adult disabled son, Blake (Son), and memorandum order and judgment awarding Petitioner Christina Gonzales attorney fees and costs. Respondent raises four arguments on appeal: (1) the evidence was insufficient to find Son is a disabled adult in need of continuing child support; (2) the district court erred in relying on the report and testimony from clinical neuropsychologist, Dr. Jonathan R. Kurtyka, Ph.D., in its determination on the issue of continued child support for Son; (3) the district court erred in its treatment of the proceeds Son receives as a result of his disabilities from Social Security as part of the child support calculation; and (4) the district court erred in its award of attorney fees and costs to Petitioner. We affirm.
{2} Petitioner filed a motion to establish child support for Son—nineteen years old at the time—pursuant to Cohn v. Cohn , 1997-NMCA-011, ¶ 5, 123 N.M. 85, 934 P.2d 279 () After an evidentiary hearing that took place over the course of two days, the district court concluded, under Cohn , that Petitioner and Respondent have a continuing obligation to financially support Son. The district court determined that Respondent’s child support obligation to Son is $582 per month.
{3} In its memorandum order and judgment, the district court explained that The district court further ordered that Petitioner shall be awarded attorney fees, gross receipts tax, and costs related to Dr. Kurtyka’s testimony. Respondent appeals.
{4} Respondent claims that Respondent therefore contends that the evidence was insufficient to determine Son is a disabled adult in need of continuing child support.
{5} "Child support determinations are made at the discretion of the district court and are reviewed for abuse of discretion." Jury v. Jury , 2017-NMCA-036, ¶ 26, 392 P.3d 242. "A district court abuses its discretion if it applies an incorrect standard, incorrect substantive law, or its discretionary decision is premised on a misapprehension of the law." Id. (internal quotation marks and citation omitted). To the extent that Respondent argues that there was an insufficient basis to support the district court’s findings concerning the extent of Son’s disability, "we review the evidence in the light most favorable to support the district court’s findings, resolving all conflicts and indulging all permissible inferences in favor of the decision below." Gabriele v. Gabriele , No. A-1-CA-34523, 2018 WL 797270, 2018-NMCA-042, ¶ 18, 421 P.3d 828 (Jan. 31, 2018) (alteration, internal quotation marks, and citation omitted). However, insofar as Respondent challenges the district court’s legal conclusion concerning whether Son qualified as an adult in need of continued child support under Cohn , our review is de novo. See Gabriele , 2018-NMCA-042, ¶ 18, 421 P.3d 828.
{6} We held in Cohn that under the common law, "if a child is disabled at the time of reaching majority, ... the parental duty to provide support continues indefinitely, until the disability is removed." 1997-NMCA-011, ¶¶ 5-6, 123 N.M. 85, 934 P.2d 279 (internal quotation marks and citation omitted). In Cohn , the father appealed the district court’s order requiring him to pay child support for his thirty-seven-year-old son, George, who had been "severely mentally and physically handicapped since birth." Id. ¶¶ 1-2. At the time the district court entered its order, George had been and continued to be cared for by his mother. Id. ¶ 2. The district court found that George had the mind of a three-year-old child and was incompetent, suffered from frequent epileptic seizures, had to be helped in bathing and dressing
, and needed constant supervision. Id. On appeal and based on the district court’s findings concerning George’s condition, we concluded that George was "severely disabled" before reaching the age of majority and therefore the district court did not err in ordering the father to pay support for his disabled adult son. Id. ¶ 6.
{7} The evidence presented in the hearing of this case overwhelmingly demonstrates that Son was severely disabled before reaching the age of majority as contemplated by Cohn .
{8} Son was born with the genetic disorder, Chromosome 14, Trisomy
Mosaic, identified aspects of Fragile X syndrome (which presents with growth delays, psychomotor delays, and mental retardation ), and a clubbed foot. As a high school student, Son "received academic instruction in a full-time special education classroom." Son’s IQ at the time of Dr. Kurtyka’s neuropsychological evaluation was 65—in the severely impaired range. Son’s performance in all academic core skills were at least three grade levels below the expectation for a child his age, including performing at a first-grade level in math and at a fourth-and fifth-grade level in reading and spelling, respectively. Dr. Kurtyka testified that it was unlikely that Son’s skills could be improved with additional education. Son also tested in the mildly to moderately impaired level in learning and memory skills, language functioning, visual, and motor skills. Son’s behavioral testing indicated significant difficulty with behavioral, emotional, attentional, and executive functioning. Son was limited in all adaptive functioning areas, which include motor skills, social communication, personal living skills, and community living skills. Dr. Kurtyka testified that based on his testing, he diagnosed Son with Mild Retardation, Attention Deficit/Hyperactivity Disorder, and Combined Type.
{9} Dr. Kurtyka’s report and testimony also indicated that given Son’s significant impairment in adaptive behavioral skills, he expected that Son would also have difficulties in independent functioning in the future. He further testified that individuals with Son’s level of functioning would likely be unable to live on their own without support, fill out job a application without assistance, rent an apartment on their own, drive a car, or budget their money. When Dr. Kurtyka’s report was prepared, he recommended that Petitioner consider obtaining a durable power of attorney for Son or explore the possibility of legal guardianship once Son turned eighteen. Given Son’s diagnoses, Dr. Kurtyka did not expect Son’s condition to have changed significantly since his evaluation.
{10} Petitioner testified that shortly after Son’s birth, it was clear that he was not normal and that during his infancy and early childhood, she recognized that Son was not meeting his developmental milestones and required multiple surgeries, including to address his clubbed foot, to conduct an ear tube procedure, and to remove a thyroglossal duct cyst
. She also testified that Son was diagnosed with Chromosome 14, Trisomy Mosaic, and Fragile X syndrome at age 5. Petitioner testified that Son had been in full-time special education classes since kindergarten and lived with her full-time. Petitioner also testified that Son has difficulty thoroughly brushing his teeth, determining what clothing is appropriate, and managing his overall hygiene. Petitioner also testified that Son is unable to cook or plan meals for himself, has little understanding of the concept of money, how to budget, or how to pay correct amounts for items without assistance, does not have a concept of or ability to tell time, and has impulse control problems stemming from his disabilities.
{11} Respondent called four witnesses on his behalf, all of whom were special education teachers that had experience with Son in the high school environment, and each one testified that Son was disabled. Respondent disagreed with his own witnesses and all the other evidence demonstrating that Son is disabled.
{12} Viewing the evidence in the light most favorable to support the district court’s findings, resolving all conflicts and indulging all permissible inferences in favor of the district court decision, we conclude that substantial evidence supports the district court’s findings and conclusion that Son was disabled upon reaching majority and is an adult entitled to continuing child support.
{13} Respondent next asserts that the district court erred in relying upon Dr. Kurtyka’s neuropsychological evaluation of Son because "it was aged and not relevant to the child support issue." Respondent argues that the evaluation was conducted to evaluate Son’s medical history and cognitive emotional functioning at age sixteen with the purpose of supporting Son’s developmental disability waiver application—not for a legal hearing on child support...
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