Spingola v. Spingola

Citation1978 NMSC 45,580 P.2d 958,91 N.M. 737
Decision Date05 June 1978
Docket NumberNo. 11589,11589
PartiesLouise B. SPINGOLA, Plaintiff-Appellant, v. Lawrence J. SPINGOLA, Defendant-Appellee.
CourtSupreme Court of New Mexico

EASLEY, Justice.

The plaintiff-appellant, Louise B. Spingola (mother), sued defendant-appellee, Lawrence J. Spingola (father), seeking to increase the amount of child support awarded in their divorce decree. The trial court refused the requested increase. We reverse.


The questions we consider are:

(1) whether the trial court properly went behind an unambiguous original decree and considered evidence that added an additional factor to the stipulated settlement agreement of the parties incorporated in the final decree;

(2) whether, on motion to modify a decree as to child support, it is mandatory that the trial court specifically consider and make findings regarding a defendant-father's current financial resources;

(3) what criteria must be examined in determining whether a change in the support level is justified; and

(4) what legal effect and evidentiary weight, if any, must we give the Bernalillo County Child Support Guidelines in reviewing a contest involving modification.


The original decree incorporated a stipulated settlement which provided that the father would pay $1,000.00 per month in support of three minor children, aged 3, 7 and 10, which was approximately what was called for by child support guidelines in use in Bernalillo County. At the time of divorce, the father was earning approximately $42,000.00 per year. At the time this petition was filed, the children were aged 6, 10 and 13 and the father's income had increased to approximately $87,000.00 per year. The latter income figure would have called for the father's paying more than $3,000.00 per month under the child support guidelines.

Claims of the Parties

The mother alleges that material changes in circumstances have occurred warranting an increase in support, namely the circumstantial increase in the father's salary, the increased financial needs of the now older children, cost of enrolling an additional child in private school and the general effects of inflation. She alleges that the trial court failed to make any findings regarding these matters except for finding that the mother had experienced a twenty percent increase in living expenses. She urges that the trial court's action amounted to an abuse of discretion, particularly its failure to comply with § 22-7-11.1(A), N.M.S.A.1953 (Supp.1975) which calls for the court to make "a specific determination and finding" regarding the need for support, "considering the financial resources of the parent." (Emphasis added.)

The father defends by saying that in negotiating the stipulated settlement the parties took into consideration the prospect of his wages increasing to as much as $100,000.00 per year and that the establishment of $1,000.00 per month for support was based on a consideration of this escalation in income. He argues that the Bernalillo County Child Support Guidelines have no relevancy, nor does the fact that his income has increased to $87,000.00 per year. His position is that the $1,000.00 furnishes the necessities for the children and that he is only obligated to that extent. He points to the evidence that the wife's income has increased by forty-two percent as further evidence that the children's needs are being met.

The Court's Decision

The court agreed with the father's position and made numerous findings about the mother's increase in income, about the fact that she had remarried and that her present husband was furnishing support for her and found that her living expenses had increased by twenty percent while her income had increased by forty-two percent. The court then found that there had been no substantial change in circumstances to justify an increase in child support, and that the welfare of the children was adequately provided for by the $1,000.00 per month payment. The court concluded that the enhanced financial position of the father was not such as to justify an increase. The court further found that there had been no change in circumstances that would be detrimental to or materially affect the welfare of the children.

Requested findings by the mother showing the increase in the father's salary, the application of the Bernalillo County Guidelines and the specific areas of increased need, which would indicate the necessity for more support, were refused by the court.

Court Going Behind the Original Decree

There is no substance to the father's claim that the parties agreed to the amount of $1,000.00 in contemplation that the father's income would increase to as much as $100,000.00 and that, if it did so increase, the amount of $1,000.00 would still be fair. The stipulated agreement made no mention of such a covenant and there is no other substantial evidence to support the claim that the mother assented to such a term. There is no contention that the settlement agreement and the decree contain any ambiguity in this regard.

The judgment does not say that the mother waives the right to seek increases should the father's salary increase. We will not read such a waiver into the settlement. Owen v. Burn Const. Co., 90 N.M. 297, 563 P.2d 91 (1977); Rubenstein v. Weil, 75 N.M. 562, 408 P.2d 140 (1965); Boylin v. United Western Minerals Company, 72 N.M. 242, 382 P.2d 717 (1963). The trial court was in error in presuming the mother had waived this right.

Even if the father's contentions on this issue were supported by the evidence, he would still be confronted by our holding in Scanlon v. Scanlon, 60 N.M. 43, 287 P.2d 238 (1955), that a contract for alimony incorporated in a divorce decree becomes merged into the decree and the decree is subject to modification even when it contains a provision that the agreement cannot be amended without the consent of both parties. The Court ruled that § 22-7-6, N.M.S.A.1953 controlled as a matter of public policy over the contrary provisions in the contract. The statute then in effect provided, as does our present statute, § 22-7-6(B)(2), N.M.S.A.1953 (Supp.1975), that the court "may modify and change any order in respect to alimony . . . whenever the circumstances render such change proper." Subsection (C) of the present statute has almost identical language as regards the court's power to modify a child support order.

The rights of the children, as innocent third parties, are involved in these agreements. To make such an agreement nonmodifiable would not be in the best interests of the children and for this reason is, as indicated by Scanlon, against the strong public policy of New Mexico.

Mandatory Duty of Trial Court

Section 22-7-11.1 specifies that the court, in providing for proper maintenance and education of minor children, "shall made a specific determination and finding " regarding the need for child support, "considering the financial resources of the parent." (Emphasis added.)

This section is mandatory and requires that evidence of the father's current financial resources be fully considered by the court and a finding be made based on that evidence. Pitcher v. Pitcher, 91 N.M. 504, 576 P.2d 1135 (1978). Findings may not rest upon mere speculation and conjecture. Pitcher, id., Matter of Briggs, 91 N.M. 84, 570 P.2d 915 (1977). It is the duty of the trial court to find all of the ultimate facts where a request is seasonably and properly made. Curbello v. Vaughn, 78 N.M. 489, 432 P.2d 845 (1967). The court may not disregard such undisputed relevant testimony on a material issue. Lopez v. Maes, 81 N.M. 693, 472 P.2d 658 (Ct.App.1970), cert. denied, 81 N.M. 721, 472 P.2d 984 (1970). Deciding for the first time in New Mexico, as we do, that one of the criteria to which a trial court must look in these cases is what the life-style of the children would have been had the family stayed together, Nielsen v. Nielsen, 87 Idaho 578, 394 P.2d 625 (1964); Sigesmund v. Sigesmund, 115 Cal.App.2d 628, 252 P.2d 713 (1953), the importance of this evidence increases. It is ridiculous to assume that the welfare of the children would not have improved considerably by the time the father's income had doubled.

The trial court's adamant refusal to consider the dramatic increase in the father's income as a substantial change in circumstances was arbitrary, capricious and beyond the bounds of reason.

Legal and Evidentiary Standards

Since this case will be remanded for further proceedings, and considering the manifest necessity for more specific guidance in this area of the law, we consider some of the controlling principles of law and evidentiary matters.

The issue before the trial court on a petition to modify the amount of child support is whether there has been a showing of a change in circumstances. The change must be substantial, materially affecting the existing welfare of the child, and must have occurred since the prior adjudication where child support was originally awarded. Unser v. Unser, 86 N.M. 648, 655, 526 P.2d 790 (1974); Allgood v. Orason, 85 N.M. 260, 511 P.2d 746 (1973); Merrill v. Merrill, 82 N.M. 458, 483 P.2d 932 (1971); Albright v. Albright, 45 N.M. 302, 115 P.2d 59 (1941).

The burden of proof is on the moving party to satisfy the court that the circumstances have so changed as to justify the modification. Edington v. Edington, 50 N.M. 349, 176 P.2d 915 (1947).

On appeal from the denial of a petition to modify a child support, the reviewing court should decide: whether the findings of the trial court are supported by substantial evidence; whether any refused findings should have been made; and whether there was an abuse of discretion by the trial court. Fox v. Doak, 78 N.M. 743, 438 P.2d 153 (1968).

The awarding of child support rests...

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