Critchfield v. Brown

• Court: New Mexico Court of Appeals
• Decided: September 15, 2011
• Docket: 31,195
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 YASMIN C. CRITCHFIELD, 8 N/K/A YASMIN C. THORNELL,

9 Petitioner-Appellee,

10 v. NO. 31,195

11 LLOYD KENNETH BROWN,

12 Respondent-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 John F. Davis, District Judge

15 Border Law Office, P.A. 16 Dean E. Border 17 Albuquerque, NM

18 for Appellee

19 Lloyd Kenneth Brown 20 Albuquerque, NM

21 Pro Se Appellant

22 MEMORANDUM OPINION

23 WECHSLER, Judge.

24 Father appeals the order modifying his child support and entering judgment for 1 child support arrears. We proposed to affirm in a calendar notice, and we have

2 received a memorandum in opposition to our notice and a motion for stay. We have

3 duly considered Father’s arguments, but we find them unpersuasive. We affirm and

4 we deny Father’s motion for stay.

5 Father continues to argue that he does not make the $5000 per month in income

6 imputed to him by the district court. Father again states that his current wife is part

7 owner of the business, and Father argues that a closer look at the documents presented

8 to the district court would show that his wife financed the business, wrote checks from

9 her separate account, and took out loans in her name. In addition, Father points out

10 that he is not a CPA as stated in our calendar notice.

11 As discussed in our calendar notice, there is nothing to indicate that Father

12 preserved his arguments that his wife owns half of his business and half of the items

13 used in his business, and that the income referred to by the hearing officer was total

14 sales and not gross income. Indeed, Father states in his docketing statement that he

15 did not alert the district court to the mistakes he alleges on appeal in his objections.

16 In his memorandum in opposition, Father provides no more information regarding

17 preservation of these issues. We will not address arguments that were not properly

18 preserved in the district court.

19 Furthermore, despite the fact that we mistakenly referred to Father as a CPA,

2 1 we hold that there was no abuse of discretion by the district court in imputing income

2 of $5000 per month to Father. See Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136

3 N.M. 693, 104 P.3d 559; NMSA 1978, § 40–4–11.1(B) (2008). As previously noted,

4 the hearing officer made extensive findings, which the district court adopted in

5 support of its decision. The district court found that Father had attempted to hide

6 income to lower his support obligations as much as possible and that Father and

7 Father’s witness were “less than credible.” See State v. Hughey, 2007-NMSC-036,

8 ¶ 16, 142 N.M. 83, 163 P.3d 470 (explaining that the fact finder determines the

9 credibility of witnesses and the weight to be given to their testimony); see also

10 Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 (Ct.

11 App. 1988) (stating that appellate court cannot weigh the credibility of witnesses),

12 holding modified on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001-

13 NMSC-034, 131 N.M. 272, 34 P.3d 1148. The district court instead accepted the

14 testimony from Mother and evidence provided by Mother in the form of subpoenaed

15 documents regarding transactions for personal expenses on Father’s PayPal account.

16 The district court also relied on testimony from Mother’s witness. Based on the

17 evidence presented, the district court concluded that Father’s gross monthly income

18 “should be imputed at no less than $5,000 per month.” [RP 250] We hold that the

19 district court did not abuse its discretion.

3 1 For the reasons discussed in this opinion and in our calendar notice, we affirm

2 the decision of the district court.

3 IT IS SO ORDERED.

4 _____________________________ 5 JAMES J. WECHSLER, Judge

6 WE CONCUR:

7 __________________________________ 8 CELIA FOY CASTILLO, Chief Judge

9 __________________________________ 10 MICHAEL D. BUSTAMANTE, Judge