Buffington v. McGorty

2004 NMCA 92, 2004 NMCA 092, 96 P.3d 787, 136 N.M. 226
CourtNew Mexico Court of Appeals
DecidedMay 14, 2004
Docket23,639
StatusPublished
Cited by17 cases

This text of 2004 NMCA 92 (Buffington v. McGorty) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buffington v. McGorty, 2004 NMCA 92, 2004 NMCA 092, 96 P.3d 787, 136 N.M. 226 (N.M. Ct. App. 2004).

Opinion

OPINION

VIGIL, J.

{1} This divorce case requires us to distinguish a domestic relations hearing officer under Rule 1-053.2 NMRA 2004 (the Rule) from a child support hearing officer under the Child Support Hearing Officer Act, NMSA 1978, §§ 40-4B-1 to -10 (1988, as amended through 1993) (the Act). For the reasons set forth in this opinion, we remand to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

{2} In 1985, Father and Mother stipulated to the custody and child support of Daughter, and to the division of their assets and liabilities. Father and Mother agreed to child support as follows:

So long as the principal residence of the parties’ [Daughter] is with wife, husband will pay twenty percent (20%) of his net disposable income for child support. That income shall be determined annually: capital gains in the previous year and projected income for the upcoming year being the basis for determining average net monthly income. Minimum child support commencing July 1, 1985 shall be $400.00 per month. Husband shall pay [Daughter’s] medical expenses. Husband will pay day care expenses when she is in his physical custody. In addition, husband shall provide hospitalization insurance for [Daughter] or reimburse wife for that portion of the hospitalization policy that is attributed to the premium allocable to the children covered by wife’s policy. If two children are covered by such policy, then one-half of the amount caused by the inclusion of the children in the coverage of the policy shall be ascribed to [Daughter].

The stipulations were approved by the district court and incorporated in the Final Decree of Dissolution of Marriage filed on July 1,1985.

{3} The stipulation concerning Daughter provides, “[i]f either Parent leaves the vicinity they shall negotiate a residential plan for [Daughter] that enables both to have maximum continuing contact with [Daughter].” In 1988, Father filed a motion for order to show cause. Father alleged that Mother moved to Baltimore, Maryland in June 1987, that the parties were unsuccessful in negotiating a new residential plan and that Mother refused to negotiate any change in child support. Mother denied she refused to negotiate with Father regarding child support and said that the parties had been unable to resolve the child custody and support issues. Father also alleged and Mother denied that under the stipulation, Mother was indebted to him. The district court ordered the parties to attend mandatory mediation to attempt resolution of the custody and visitation rights issues.

{4} Mother then filed a motion alleging that Father had failed to pay child support in accordance with the stipulation. She subsequently withdrew the motion but reserved her right to seek an order compelling Father to pay her attorney’s fees and costs in connection with the motion.

{5} No action was taken on Father’s 1988 motion for order to show cause. On April 5, 1989, an administrative order was entered to show cause why the case “should not be dismissed or closed by reason of the inactivity of the file as it now pends.” Mother responded that “the parties have been engaged in mediation and seek to continue the same.” Father agreed and added that the parties and counsel had agreed “that the resolution of the other pending issues should await the results of mediation.” No action was taken by the court at that time.

{6} On November 29, 1990, a second administrative order to show cause was filed under Rule 1-041(E)(2) NMRA 2004, noting that no apparent activity had occurred in the case within a substantial period of time and cause should be shown why the case should not be dismissed or closed “by reason of the inactivity of the file as it now pends.” Father responded that the case involved an issue of custody and rights of visitation “as well as other matters concerning enforcement of the decree” and that mediation of the child custody matters had not been finalized. On January 25,1991, an administrative order was filed under Rule 1-041(E)(2) denying Father’s 1988 motion for order to show cause, “the Court finding that no action has occurred within a substantial period of time on the pending motion.”

{7} Over eight years later on October 20, 1999, Mother filed a motion for enforcement of final decree and for award of attorney fees and costs, alleging that Father had failed to pay child support since June 1996, had failed to provide health insurance since 1988, and was obligated to reimburse Mother for health expenses incurred on behalf of Daughter. Father responded and denied that he owed child support and affirmatively stated that he paid more than his required child support since June 1996, that he had provided health insurance for Daughter since 1988, and that he was unaware of the alleged medical expenses incurred by Mother for Daughter. Further, Father alleged that if it was determined that he owed Mother any child support, any such sum would be more than offset by monies owed by Mother to Father under the property division stipulation. Father further alleged that demand had been made upon Mother for payment of those monies, but she failed and refused to make those payments. No action was taken on Mother’s motion. However, one year later on November 3, 2000, she filed an amended motion, making the same material allegations, and Father’s response was likewise materially identical.

{8} The parties then received notice for a “hearing to Determine Child Support Arrearages” before a “Domestic Relations Hearing Officer.” When the hearing was held on September 12, 2001, Daughter was already emancipated. She had turned eighteen years old on May 28, 2000.

{9} The evidence before the hearing officer was the following. Mother left Santa Fe and moved to Maryland with Daughter so Mother could attend school. She did not seek Father’s consent for a modification of the child custody order before doing so. Shortly after the move, the parties agreed for Daughter to return to stay with Father in Santa Fe for the summer. At the end of the summer, Mother asked Father to keep Daughter in Santa Fe through the coming school year, which he did. There was no formal change in the child support order, but consistent with the original stipulation, Father did not pay child support during those periods of time when Daughter lived with him. At the end of the school year, Daughter went to spend the summer with Mother, who then decided to keep her in Maryland and enrolled her in school there. Father began paying child support monthly in the sum of $400 as stated in the stipulation. Father subsequently increased child support payments to $600 per month.

{10} Daughter was enrolled at a boarding school in Maryland during each school year from September 1996 through June 2000 as agreed by Father and Mother. They agreed that Mother would pay “room and board” expenses and Father would pay all tuition and “everything else.” Father testified that these payments exceeded his child support obligations under the stipulation but he agreed to pay them with the understanding that the payments would satisfy his child support obligations.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 NMCA 92, 2004 NMCA 092, 96 P.3d 787, 136 N.M. 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buffington-v-mcgorty-nmctapp-2004.