This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOHN BURKE,
3 Petitioner-Appellant,
4 v. NOS. 33,824; 33,825; & 5 33,826 (consolidated) 6 KEVIN S. JONES and 7 ANA MARIE JONES,
8 Respondents-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Deborah Davis Walker, District Judge
11 John Burke 12 Albuquerque, NM
13 Pro Se Appellant
14 Kevin S. Jones 15 Altamonte Spring, FL
16 Ana Marie Jones 17 Albuquerque, NM
18 Pro Se Appellees
19 MEMORANDUM OPINION
20 VANZI, Judge. 1 {1} The multi-appeals in this case arise from the judgment of the district court
2 denying John Burke’s (Petitioner) repeated requests for ongoing and back child
3 support under the Kinship Guardianship Act (KGA), NMSA 1978, §§ 40-10B-1 to -15
4 (2001), and the Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11A-101 to -903
5 (2009). We affirm.
6 BACKGROUND
7 {2} Ana Marie Jones (Mother) and Kevin S. Jones (Father) are the parents of two
8 children. Samantha A. Jones (Child), the child at the center of this litigation, was born
9 August 26, 1995. Petitioner is the former husband of Child’s maternal grandmother.
10 Father initiated divorce proceedings and, in January 1998, the parties filed a marital
11 settlement agreement dealing with child custody and support issues. Child was
12 residing with maternal grandparents at the time, and the agreement, which was never
13 adopted by the court, provided that Father would pay $300 per month to grandparents
14 as long as Child was in their care. Three months later, on April 27, 1998, the parties
15 filed an amended marital settlement agreement, which the district court adopted in the
16 final decree. The amended settlement agreement awarded parents joint legal and
17 physical custody of Child and provided that Mother would pay Father $100 per month
18 as child support. A stipulated order modifying custody was subsequently filed on
19 September 9, 2004, in which Mother was awarded sole legal and physical custody of
2 1 Child. The order required Mother to pay Father $13 per month as child support for the
2 parties’ other child.
3 {3} On August 26, 2011, Petitioner initiated this action by filing a petition seeking
4 guardianship of Child under the KGA. After a hearing, which neither Mother nor
5 Father attended, the district court entered an order appointing Petitioner temporary
6 guardian of Child and set the matter for a final hearing. Mother then moved to set
7 aside the temporary kinship guardianship. During the course of the hearing on
8 Mother’s motion, the court asked counsel to meet and confer to discuss awarding the
9 appropriate legal status that would be in Child’s best interest. Petitioner and Mother,
10 with the assistance of counsel, entered into a stipulated order of limited kinship
11 guardianship, which they addressed with the court some weeks later. The parties
12 agreed, among other things, as follows:
13 a. Petitioner shall have authority and decision making over all 14 decisions regarding [Child’s] education; 15 b. Mother shall retain all other parental rights and sole decision 16 making authority regarding these rights; 17 c. The parties agree that Petitioner shall waive any and all past and 18 future child support claims he may have against Mother[.]
19 The stipulated order, signed by Mother, Petitioner, and their respective counsel, was
20 filed on May 1, 2012. The district court approved and adopted the parties’ agreement
21 as an order of the court.
3 1 {4} After entry of the stipulated order, Petitioner filed no less than five motions
2 seeking ongoing and back child support for Child. On January 29, 2013,
3 Petitioner—through his fourth counsel in the case—filed a motion for current and
4 back child support under the KGA and the UPA, as well as for reimbursement for
5 medical, dental, and tuition expenses. Petitioner argued that the provision in the
6 stipulated order that he would not seek child support was unconscionable and
7 therefore unenforceable. The district court heard argument from the parties and ruled
8 that Petitioner did not have standing to request child support and denied his request.
9 On April 5, 2013, Petitioner, now proceeding pro se, moved to reconsider the court’s
10 ruling. After a hearing on the motion for reconsideration and on another motion for
11 current and past child support filed on April 9, 2013, the district court again concluded
12 that Petitioner was not the biological parent or the legal guardian of Child and,
13 therefore, he did not have standing to pursue an action for child support on her behalf.
14 {5} Petitioner appealed the district court’s order denying his motions. This Court
15 first issued a proposed summary disposition proposing reversal with respect to
16 standing, without reaching the merits. We then filed a memorandum opinion reversing
17 the district court’s decision and stated that “[o]n remand, the district court will need
18 to consider [Mother’s and Father’s] various arguments and determine, in the first
19 instance, whether they are required to pay child support to Petitioner.” After the
20 proposed summary disposition was filed, but before mandate issued on our final
4 1 decision, Petitioner filed another motion in the district court for “reasonable
2 compensation for services as guardian and . . . reimbursement for room, board and
3 clothing.”
4 {6} On remand, guided by this Court’s direction, the district court held a hearing
5 to consider Petitioner’s motion. The court heard argument as well as testimony from
6 Petitioner, Father, and Mother who appeared either telephonically or in person. On
7 March 20, 2014, the court entered a detailed order denying Petitioner’s motion. In
8 addition to the facts set forth above, the district court found that it never transferred
9 the legal rights and duties of a parent to Petitioner, nor did it appoint Petitioner as
10 Child’s kinship guardian. In addition, the stipulated order was a final order on the
11 guardianship and child support issues. The district court concluded that Petitioner’s
12 request for back child support had been adjudicated and was barred by the doctrine of
13 res judicata and that Petitioner expressly waived any claim against Mother for back
14 child support in the stipulated order. Further, Petitioner failed to state a claim for
15 ongoing child support because he failed to allege a substantial and material change of
16 circumstances that would warrant modification of child support. Lastly, the district
17 court concluded that, because Petitioner had never been legally responsible for the
18 care and maintenance of Child, he was not entitled to an award of back or ongoing
19 child support.
5 1 {7} A month after entry of the March 20 order, Petitioner filed a motion for
2 summary judgment for custody of Child retroactive to February 1996 and for child
3 support. The district court determined a hearing was unnecessary but nevertheless
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOHN BURKE,
3 Petitioner-Appellant,
4 v. NOS. 33,824; 33,825; & 5 33,826 (consolidated) 6 KEVIN S. JONES and 7 ANA MARIE JONES,
8 Respondents-Appellees.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 Deborah Davis Walker, District Judge
11 John Burke 12 Albuquerque, NM
13 Pro Se Appellant
14 Kevin S. Jones 15 Altamonte Spring, FL
16 Ana Marie Jones 17 Albuquerque, NM
18 Pro Se Appellees
19 MEMORANDUM OPINION
20 VANZI, Judge. 1 {1} The multi-appeals in this case arise from the judgment of the district court
2 denying John Burke’s (Petitioner) repeated requests for ongoing and back child
3 support under the Kinship Guardianship Act (KGA), NMSA 1978, §§ 40-10B-1 to -15
4 (2001), and the Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11A-101 to -903
5 (2009). We affirm.
6 BACKGROUND
7 {2} Ana Marie Jones (Mother) and Kevin S. Jones (Father) are the parents of two
8 children. Samantha A. Jones (Child), the child at the center of this litigation, was born
9 August 26, 1995. Petitioner is the former husband of Child’s maternal grandmother.
10 Father initiated divorce proceedings and, in January 1998, the parties filed a marital
11 settlement agreement dealing with child custody and support issues. Child was
12 residing with maternal grandparents at the time, and the agreement, which was never
13 adopted by the court, provided that Father would pay $300 per month to grandparents
14 as long as Child was in their care. Three months later, on April 27, 1998, the parties
15 filed an amended marital settlement agreement, which the district court adopted in the
16 final decree. The amended settlement agreement awarded parents joint legal and
17 physical custody of Child and provided that Mother would pay Father $100 per month
18 as child support. A stipulated order modifying custody was subsequently filed on
19 September 9, 2004, in which Mother was awarded sole legal and physical custody of
2 1 Child. The order required Mother to pay Father $13 per month as child support for the
2 parties’ other child.
3 {3} On August 26, 2011, Petitioner initiated this action by filing a petition seeking
4 guardianship of Child under the KGA. After a hearing, which neither Mother nor
5 Father attended, the district court entered an order appointing Petitioner temporary
6 guardian of Child and set the matter for a final hearing. Mother then moved to set
7 aside the temporary kinship guardianship. During the course of the hearing on
8 Mother’s motion, the court asked counsel to meet and confer to discuss awarding the
9 appropriate legal status that would be in Child’s best interest. Petitioner and Mother,
10 with the assistance of counsel, entered into a stipulated order of limited kinship
11 guardianship, which they addressed with the court some weeks later. The parties
12 agreed, among other things, as follows:
13 a. Petitioner shall have authority and decision making over all 14 decisions regarding [Child’s] education; 15 b. Mother shall retain all other parental rights and sole decision 16 making authority regarding these rights; 17 c. The parties agree that Petitioner shall waive any and all past and 18 future child support claims he may have against Mother[.]
19 The stipulated order, signed by Mother, Petitioner, and their respective counsel, was
20 filed on May 1, 2012. The district court approved and adopted the parties’ agreement
21 as an order of the court.
3 1 {4} After entry of the stipulated order, Petitioner filed no less than five motions
2 seeking ongoing and back child support for Child. On January 29, 2013,
3 Petitioner—through his fourth counsel in the case—filed a motion for current and
4 back child support under the KGA and the UPA, as well as for reimbursement for
5 medical, dental, and tuition expenses. Petitioner argued that the provision in the
6 stipulated order that he would not seek child support was unconscionable and
7 therefore unenforceable. The district court heard argument from the parties and ruled
8 that Petitioner did not have standing to request child support and denied his request.
9 On April 5, 2013, Petitioner, now proceeding pro se, moved to reconsider the court’s
10 ruling. After a hearing on the motion for reconsideration and on another motion for
11 current and past child support filed on April 9, 2013, the district court again concluded
12 that Petitioner was not the biological parent or the legal guardian of Child and,
13 therefore, he did not have standing to pursue an action for child support on her behalf.
14 {5} Petitioner appealed the district court’s order denying his motions. This Court
15 first issued a proposed summary disposition proposing reversal with respect to
16 standing, without reaching the merits. We then filed a memorandum opinion reversing
17 the district court’s decision and stated that “[o]n remand, the district court will need
18 to consider [Mother’s and Father’s] various arguments and determine, in the first
19 instance, whether they are required to pay child support to Petitioner.” After the
20 proposed summary disposition was filed, but before mandate issued on our final
4 1 decision, Petitioner filed another motion in the district court for “reasonable
2 compensation for services as guardian and . . . reimbursement for room, board and
3 clothing.”
4 {6} On remand, guided by this Court’s direction, the district court held a hearing
5 to consider Petitioner’s motion. The court heard argument as well as testimony from
6 Petitioner, Father, and Mother who appeared either telephonically or in person. On
7 March 20, 2014, the court entered a detailed order denying Petitioner’s motion. In
8 addition to the facts set forth above, the district court found that it never transferred
9 the legal rights and duties of a parent to Petitioner, nor did it appoint Petitioner as
10 Child’s kinship guardian. In addition, the stipulated order was a final order on the
11 guardianship and child support issues. The district court concluded that Petitioner’s
12 request for back child support had been adjudicated and was barred by the doctrine of
13 res judicata and that Petitioner expressly waived any claim against Mother for back
14 child support in the stipulated order. Further, Petitioner failed to state a claim for
15 ongoing child support because he failed to allege a substantial and material change of
16 circumstances that would warrant modification of child support. Lastly, the district
17 court concluded that, because Petitioner had never been legally responsible for the
18 care and maintenance of Child, he was not entitled to an award of back or ongoing
19 child support.
5 1 {7} A month after entry of the March 20 order, Petitioner filed a motion for
2 summary judgment for custody of Child retroactive to February 1996 and for child
3 support. The district court determined a hearing was unnecessary but nevertheless
4 entered detailed findings and conclusions. The court addressed the motion as a motion
5 to reconsider and noted that in his ongoing effort to recover child support, Petitioner
6 was now seeking to have the court award him custody of Child retroactive to February
7 1996. After setting out the factual history concerning Child’s legal and physical
8 custody, the court concluded that Petitioner had never been legally responsible for the
9 care of Child and that it could not retroactively modify prior orders to establish that
10 Petitioner had custody. The district court denied Petitioner’s motion and stated that
11 it would not consider any subsequent pleadings on the reimbursement and
12 compensation issue. This appeal followed.
13 DISCUSSION
14 {8} The pro se Petitioner’s brief in chief is, at best, difficult to understand. He fails
15 to provide an adequate factual background with citations to the record or relevant legal
16 authorities that support his arguments. Nevertheless, we presume that Petitioner is
17 contending that the district court erred in failing to award him and/or Child past and
18 ongoing child support under the KGA and the UPA.
19 {9} On appeal, we review the setting of child support for an abuse of discretion. See
20 Styka v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16. We determine that
6 1 a district court has abused its discretion “when it applies an incorrect standard,
2 incorrect substantive law, or its discretionary decision is premised on a
3 misapprehension of the law.” Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 N.M.
4 693, 104 P.3d 559 (internal quotation marks and citation omitted). This appeal,
5 however, has less to do with the district court’s discretion in awarding support as it
6 does with whether Petitioner has a right to such support in the first instance and
7 whether he can bring an action for support on behalf of Child. To the extent that such
8 a determination involves interpretation of the KGA and UPA, the appellate courts
9 review issues of statutory interpretation de novo. Hovet v. Allstate Ins. Co., 2004-
10 NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69. We begin with whether Petitioner or
11 Child have a right to past and ongoing child support under the KGA and then consider
12 whether any right exists under the UPA.
13 The District Court Did Not Err in Denying Petitioner’s Motion for Child Support 14 Under the Kinship Guardianship Act
15 {10} The district court denied Petitioner’s requests for current and past child support
16 under the KGA because it found that Petitioner had not been appointed as the kinship
17 guardian of Child. The district court also found that Petitioner’s limited appointment,
18 as set forth in the stipulated order of limited guardianship, did not transfer the legal
19 rights of Mother, including with respect to child support, to Petitioner. Although
20 Petitioner continues to argue on appeal that he is entitled to child support under the
7 1 rights afforded to guardians in the KGA, we conclude that the district court properly
2 denied his motion. We explain.
3 {11} The KGA allows a district court to appoint a guardian for a minor when certain
4 conditions have been met. See § 40-10B-8(B). And, as Petitioner properly observes,
5 Section 40-10B-8(D) provides that once a guardian has been appointed,
6 [a]s part of a judgment entered pursuant to the [KGA], the court may 7 order a parent to pay the reasonable costs of support and maintenance of 8 the child that the parent is financially able to pay. The court may use the 9 child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to 10 calculate a reasonable payment.
11 The issue that is problematic for Petitioner is that a “judgment” was never entered in
12 this case, and he was never appointed Child’s permanent kinship guardian.
13 {12} Petitioner initiated this action by filing a petition for order appointing kinship
14 guardian. The district court appointed Petitioner temporary guardian of Child on
15 January 23, 2012, based solely on the representations in his petition and without
16 hearing from Mother and Father. At the March 12, 2012 hearing on Mother’s motion
17 to set aside kinship guardianship, the district court correctly observed that it had no
18 discretion to appoint Petitioner permanent kinship guardian of Child without first
19 appointing a guardian ad litem (GAL) and conducting a hearing. See § 40-10B-9(A)
20 (requiring appointment of a GAL if a parent objects to the appointment); §§ 40-10B-7
21 and -8 (setting requirements for scheduling a hearing, elements of proof, and burden
22 of proof). The court thus advised the parties that if Petitioner wished to pursue a
8 1 permanent kinship guardianship, the court would have to appoint a GAL for Child and
2 would have to conduct a full hearing on the matter subject to the requirements of the
3 KGA. The parties agreed instead to try and resolve their issues, and Petitioner never
4 sought permanent guardianship of Child under the KGA again.
5 {13} Petitioner and Mother entered into a stipulated order of limited guardianship,
6 which provided that Petitioner would “have authority and decision making over all
7 decisions regarding [Child’s] education[,]” and that Mother would “retain all other
8 parental rights and sole decision making authority regarding [those] rights[.]” More
9 importantly, the order stated that “[t]he parties agree that Petitioner shall waive any
10 and all past and future child support claims he may have against Mother[.]”
11 (Emphasis added.) The court-approved stipulated order was a final order on the
12 guardianship and child support issues. Notably, it did not appoint Petitioner the
13 kinship guardian of Child nor did it propose to transfer the legal rights and duties of
14 a parent to Petitioner. We recognize that Petitioner, although under no legal obligation
15 to do so, greatly assisted in financially supporting Child. However, the district court
16 in this case did not enter a “judgment” pursuant to the KGA that would entitle him to
17 any claim for child support and, moreover, Petitioner specifically waived any such
18 claim in the stipulated agreement.
19 {14} To the extent that Petitioner contends he is bringing a child support action on
20 behalf of Child, that argument must fail as well. The KGA provides that, once a
9 1 guardian has been appointed, with certain exceptions not relevant here, the guardian
2 has the legal rights and duties of a parent. Section 40-10B-13. Thus, while it is
3 conceivable that a court-appointed guardian may have the right to seek child support
4 in the minor child’s name, we need not reach that issue because Petitioner was never
5 appointed Child’s guardian. Consequently, he had no legal authority to bring an action
6 on her behalf. The district court properly denied Petitioner’s motion for child support
7 under the KGA.
8 The District Court Did Not Err in Denying Petitioner’s Motion for Child Support 9 Under the Uniform Parentage Act
10 {15} Petitioner also appears to argue that he is entitled to bring an action for ongoing
11 and past child support under the UPA. Again, he contends that he is seeking
12 compensation both on his own behalf and as an interested party in Child’s name. The
13 district court found that, since dissolving their marriage, Mother and Father had dealt
14 with custody and child support issues through their stipulated agreements and orders
15 filed with the court. Petitioner was not a party to those agreements and orders, and he
16 did not have legal custody of Child during her minority. Therefore, he could not
17 pursue an action on his or Child’s behalf. We agree.
18 {16} It is undisputed that natural parents are legally obligated to financially support
19 their children. Tedford v. Gregory, 1998-NMCA-067, ¶ 24, 125 N.M. 206, 959 P.2d
20 540. And child support is provided for the child’s benefit. See State ex rel. Salazar v.
10 1 Roybal, 1998-NMCA-093, ¶ 7, 125 N.M. 471, 963 P.2d 548. The question we must
2 answer in this case, however, is whether Petitioner has standing to seek past and
3 ongoing child support from Mother and Father either on his own behalf or as an
4 interested party on Child’s behalf.
5 {17} Under the UPA, standing to adjudicate parentage and past child support may
6 be maintained by the following:
7 A. the child; 8 B. the mother of the child; 9 C. a man whose paternity of the child is to be adjudicated; 10 D. the support-enforcement agency; 11 E. an authorized adoption agency or licensed child-placing agency; 12 or 13 F. a representative authorized by law to act for a person who would 14 otherwise be entitled to maintain a proceeding but who is 15 deceased, incapacitated or a minor.
16 Section 40-11A-602; see Salazar, 1998-NMCA-093, ¶ 4 (holding that a twenty-year-
17 old child was an interested party and eligible to seek child support); Tedford, 1998-
18 NMCA-067, ¶ 13 (same). A review of the above statutory provisions establishes that
19 Petitioner does not meet any of the criteria that would authorize him to pursue a cause
20 of action for retroactive child support.
21 {18} As the district court noted, when Mother and Father divorced, they initially filed
22 a marital settlement agreement that provided that as long as Child resided with her
23 maternal grandparents, Father would pay $300 per month directly to them. That
24 agreement, filed on January 22, 1998, was never adopted as an order of the court, and
11 1 it was amended three months after filing. The amended marital settlement agreement,
2 adopted as an order of the court, provided that Mother and Father would have joint
3 legal custody of both children, that Father would have primary physical custody, and
4 that Mother would pay Father $100 per month as child support. In 2004, Mother and
5 Father filed a stipulated order modifying custody in which Mother was awarded sole
6 legal and primary physical custody of Child. Mother was ordered to pay Father $13
7 per month as child support. That order stayed in place until Child emancipated on
8 August 26, 2013. Throughout Child’s minority, all custody and child support issues
9 were addressed through Mother’s and Father’s various stipulated agreements and
10 orders filed with the district court. None of those agreements or orders placed custody
11 of Child with any other person. Petitioner points to no provision in the UPA that
12 allows him standing to maintain a proceeding under these circumstances, and we can
13 find none.
14 {19} The only section of the UPA that would confer upon Petitioner standing to
15 bring an action as an interested party is Section 40-11A-602(F). However, Petitioner
16 has never been “a representative authorized by law” to act for Child. See id. Any
17 attempt by Petitioner to argue otherwise must fail in light of the stipulated order of
18 limited kinship guardianship, which provided that Petitioner’s rights were limited to
19 making educational decisions, that Mother retained all other parental rights and sole
20 decision-making authority regarding those rights, and which waived Petitioner’s right
12 1 to all child support claims against Mother. We reiterate that Mother’s and Father’s
2 child support obligations were set forth in the various marital settlement agreements.
3 “Modification of support obligations is strictly a matter to be determined by the
4 courts.” Britton v. Britton, 1983-NMSC-084, ¶ 29, 100 N.M. 424, 671 P.2d 1135.
5 Although Petitioner’s self-imposed expenditures appear to have been substantial, he
6 never petitioned to modify the child support terms in light of any asserted change in
7 circumstances within the context of the divorce action. The district court properly
8 disallowed these claims.
9 {20} Lastly, Petitioner does not have standing to bring an action in Child’s name. As
10 the district court advised Petitioner, Child is an adult and can act on her own,
11 independently of Petitioner. Thus, until the age of twenty-one, Child is eligible to seek
12 past child support from her parents if she so chooses. See Salazar, 1998-NMCA-093,
13 ¶¶ 3, 4; Tedford, 1998-NMCA-067, ¶ 13. The district court did not err in denying
14 Petitioner’s motion under the UPA.
15 {21} Before we end our discussion, we pause to acknowledge—as did the district
16 court—that Petitioner, Mother, and Father all love Child deeply and want the best for
17 her. Indeed, it appears Child is an intelligent, accomplished, and mature young woman
18 and that Petitioner is largely responsible for much of her social well-being and
19 academic success. Sadly, however, the parties’ bickering and hostility toward each
20 other have done nothing to help this family create a healthy, workable relationship for
13 1 the benefit of Child. We hope that Petitioner and parents can set aside their animosity
2 and work together to help Child continue to succeed in life and flourish in all her
3 future endeavors.
4 CONCLUSION
5 {22} The decision of the district court is affirmed.
6 {23} IT IS SO ORDERED.
7 __________________________________ 8 LINDA M. VANZI, Judge
9 WE CONCUR:
10 _________________________________ 11 JAMES J. WECHSLER, Judge
12 _________________________________ 13 CYNTHIA A. FRY, Judge