Diamond v. Diamond

245 P.3d 578
Procedural entryThis page is a short order in Diamond v. Diamond. Read the opinion of the Court — 149 N.M. 133
New Mexico Court of Appeals·Decided December 20, 2010·No. 30,009, 30,135·Published

Opinion

245 P.3d 578 (2010)
2011-NMCA-002

Jhette DIAMOND, Petitioner-Appellee,
v.
Adrienne DIAMOND, Respondent-Appellant.

Nos. 30,009, 30,135.

Court of Appeals of New Mexico.

September 20, 2010.
Certiorari Granted, December 20, 2010, No. 32,695.

*579 Pegasus Legal Services for Children, Peter Klages, Tara Ford, Elizabeth V. McGrath, Albuquerque, NM, for Appellee.

Homeless Legal Clinic, Donna J. Lynch, Santa Fe, NM, for Appellant.

OPINION

VANZI, Judge.

{1} The central question presented by this case is whether a court may award child support to a minor child who has been emancipated pursuant to the Emancipation of Minors Act (EMA), NMSA 1978, §§ 32A-21-1 to -7 (1995), for the period after emancipation and continuing until the emancipated minor reaches the age of eighteen. This case is consolidated from two district court cases. In the first case, the district court issued an order emancipating Appellee, Jhette Diamond (Daughter), but reserving Daughter's right to receive child support from her parent. In the second case, the district court ordered Appellant, Adrienne Diamond (Mother), to pay both pre- and post-emancipation child support to Daughter. Mother appeals the district court's award of child support to Daughter.

{2} We reverse the district court's grant of post-emancipation child support to Daughter because we determine that New Mexico law does not permit a minor emancipated pursuant to the EMA to collect child support payments. We affirm the district court's grant of pre-emancipation child support to Daughter.

BACKGROUND

{3} In January 2007, shortly after her sixteenth birthday, Daughter petitioned the district court for emancipation under the EMA. At the time of her petition, Daughter had been living on her own and managing her own finances for approximately three years. Because she was conceived through artificial insemination, Daughter's father is unknown. Daughter stopped living with Mother out of fear for her own safety, after multiple domestic violence incidents between Mother and Mother's boyfriend. At the emancipation hearing, Daughter further testified that she was living separately from Mother, attending high school, maintaining a 4.0 GPA, and working thirty to thirty-five hours per week at a local restaurant.

{4} After the presentation of evidence, Daughter's attorney requested that the district court, in addition to ordering Daughter's emancipation, also reserve Daughter's right to child support from her parent. The district court granted Daughter's emancipation petition and, on March 9, 2007, entered an order declaring her to be "an emancipated minor in all respects, except that she shall retain the right to support from her parent." Mother did not appeal the final emancipation order subsequently entered on April 26, 2007. Mother subsequently filed a motion seeking relief from the emancipation order under Rule 1-060(B)(4) NMRA, claiming that the order was void because the district court did not have subject matter jurisdiction under the EMA to reserve Daughter's right to receive child support. When the district court denied this motion, Mother appealed.

{5} Meanwhile, almost a year after the emancipation order was entered, Daughter filed a petition for establishment of parentage and collection of child support owed pursuant to the Uniform Parentage Act (UPA), NMSA 1978, §§ 40-11-1 to -23 (1986, as amended through 2004, repealed effective January 1, 2010). The district court found Daughter to be the emancipated minor child of Mother. At a trial on the merits regarding child support, the district court found that Mother had ceased to support Daughter approximately two years prior to Daughter's emancipation. Based on these findings, the *580 court awarded Daughter child support from Mother for the period beginning from the time the court determined Mother had ceased to support Daughter and ending when Daughter graduated from high school, a period of approximately four years that spanned both pre-emancipation and post-emancipation intervals. At the time of the trial on the merits, Daughter was eighteen, had graduated from high school with honors, and had begun attending New Mexico State University. Mother appealed from the district court's award of child support, and we consolidated that appeal with Mother's appeal from the denial of her Rule 1-060(B)(4) motion in the prior emancipation case.

{6} Mother argues on appeal that the district court erred when it awarded on-going child support to an emancipated minor under the UPA and that the district court lacked authority to award child support under the UPA because Mother's parentage of Daughter was not in dispute. We determine that the district court was correct in awarding pre-emancipation child support to Daughter under the UPA; however, we determine that the district court erred when it awarded post-emancipation child support pursuant to the UPA. We discuss these two separate categories of child support in turn.

DISCUSSION

Standard of Review

{7} "The setting of child support is within the trial court's discretion and is reviewed on appeal only for an abuse of that discretion." Styka v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16 (filed 1998). "We will find that a district court has abused its discretion when it applies an incorrect standard, incorrect substantive law, or its discretionary decision is premised on a misapprehension of the law." Zabolzadeh v. Zabolzadeh, 2009-NMCA-046, ¶ 4, 146 N.M. 125, 207 P.3d 359 (internal quotation marks and citation omitted). To the extent Mother argues that the district court's denial of her Rule 1-060(B)(4) motion was improper, we review the district court's ruling de novo. See Classen v. Classen, 119 N.M. 582, 584-85, 893 P.2d 478, 480-81 (Ct.App.1995) (explaining that a court has no discretion in ruling on a motion under Rule 1-060(B)(4) because if a judgment is void, it must be set aside).

{8} The present case also requires us to construe both the EMA and UPA statutes. Interpretation of a statute is a question of law which an appellate court reviews de novo. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066 (filed 1997).

Post-Emancipation Child Support

{9} The district court awarded Daughter post-emancipation child support from Mother for the period beginning at Daughter's emancipation and ending when Daughter graduated from high school. Mother first argues that the district court's emancipation order, which reserved Daughter's right to child support, was void because the district court did not have subject matter jurisdiction under the EMA to award child support. We do not agree that the question involves the court's subject matter jurisdiction because our state constitution confers on district courts "original jurisdiction in all matters and causes not excepted in [the] constitution." N.M. Const. art. VI, § 13. See also Phelps v. Phelps, 85 N.M. 62, 66, 509 P.2d 254, 258 (1973) (noting that improper application of a statute to facts should not be confused with the notion of lack of jurisdiction). Instead, the question is whether the district court properly applied the law—under both the EMA and the UPA—to the facts.

{10} Mother further argues that the district court erred in awarding post-emancipation child support to an emancipated minor. Mother asserts that the UPA, read in concert with

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