Horcasitas v. House

• Decision Date: 06 July 1965
• Docket Number: No. 7664,7664
• Citation: 404 P.2d 140,1965 NMSC 74,75 N.M. 317
• Parties: Ruth L. HORCASITAS (Formerly Ruth L. House), Plaintiff-Appellee, v. William W. HOUSE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 140

404 P.2d 140

75 N.M. 317

Ruth L. HORCASITAS (Formerly Ruth L. House), Plaintiff-Appellee, v. William W. HOUSE, Defendant-Appellant.

No. 7664.

Supreme Court of New Mexico.

July 6, 1965.

Robertson & Reynolds, Silver City, for appellant.

E. C. Serna, Leland A. Stone, Silver City, for appellee.

NOBLE, Justice.

William W. House (defendant and appellant) has appealed from an order increasing his child support payments and adjudging him in contempt for failure to pay child support and for seeking his discharge in bankruptcy from certain community debts.

Custody of the two minor children was awarded to the wife (appellee) by a divorce decree in 1961 which required appellant to pay child support. By a property settlement agreement filed in the divorce case, the appellant agreed to pay community debts totaling some $12,000 and to hold the wife harmless on account thereof but, although the agreement was referred to in the decree, the court neither expressly approved it nor entered any order respecting it. On November 21, 1962, the court reduced the support payments on the basis of a change in conditions, and appellant thereafter filed a petition in bankruptcy seeking his discharge from delinquent child support and from the balance of the community debts. Appellant now concedes that the child support payments are not dischargeable in bankruptcy and, therefore, that item is no longer an issue.

At the contempt hearing, appellant was adjudged to be in contempt for failure to pay for the support of his children and for seeking discharge in bankruptcy from the community indebtedness. The court provided that he might purge himself of contempt by (1) paying the delinquent and current child support and attorneys fees in specified monthly payments, and (2) either removing the community indebtedness from the bankruptcy schedule or reimbursing appellee for payments on such indebtedness at the rate of $65 per month. In addition, appellant's release from the community indebtedness was held by the court to be such a change of circumstances as to justify the requested increase in child support payments.

Appellant complains of the reception of evidence concerning his financial condition prior to the modified support order of November 21, 1962, on the ground that those matters had been finally adjudicated by that order. What he fails to appreciate, however, is that a principal issue on the request for increased child support was whether the circumstances had so changed as to warrant the increase requested. In order to determine whether such a change had occurred, it was necessary to examine into and consider his prior circumstances. We find no error in the admission of this evidence.

The court's finding that appellant's failure to pay child support was not due to his inability to pay is attacked as unsupported by substantial evidence. Appellant cites evidence of a number of factors which he contends support the contention that his failure was not willful but rather was due to an inability to meet all of his obligations. A review of the record convinces us that the finding has substantial support in the evidence and is, therefore, binding on us, Cillessen v. Kona Company, 73 N.M. 297, 387 P.2d 867. Clearly, the fact that there may have been contrary evidence which would have supported different findings does not permit this court to weigh the evidence. State ex rel. Reynolds v. Lewis, 74 N.M. 442, 394 P.2d 593. The refusal to...