Henderson v. Lekvold

621 P.2d 505, 95 N.M. 288
CourtNew Mexico Supreme Court
DecidedDecember 8, 1980
Docket12852
StatusPublished
Cited by18 cases

This text of 621 P.2d 505 (Henderson v. Lekvold) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. Lekvold, 621 P.2d 505, 95 N.M. 288 (N.M. 1980).

Opinion

OPINION

EASLEY, Senior Justice.

Mary Lekvold Henderson’s suit against Gary Lekvold sought both arrears in child support payments and the enforcement of an escalating schedule of child support in accordance with the parties’ stipulated divorce decree. Lekvold’s motion to reduce his child support obligations was granted. Mrs. Henderson appeals. We reverse and remand.

We address the following issues:

1. whether Lekvold could rely on his excessive voluntarily-incurred financial obligations as a basis for reduction of his child support obligations;

2. whether the trial court properly considered the potential future earnings of Mrs. Henderson in fixing child support;

3. to what extent the trial court could consider the financial resources and lifestyle of Mrs. Henderson and her new spouse, in determining the amount of child support;

4. whether the trial court erred in the weight that was given to the Child Support Guidelines as incorporated into the stipulated divorce decree; and

5. whether the trial court was wrong in denying Mrs. Henderson’s costs and attorney fees.

The divorce decree, granted in 1977 and incorporating the stipulation and agreement of the parties, awarded Mrs. Henderson custody of the two minor children and required Lekvold to pay child support payments of $270 per month. This decree also stated:

[I]n the event that Respondent’s (Lekvold) income increases, Respondent shall so notify Petitioner within fifteen (15) days of such increase and shall forthwith increase the amount of monies paid as and for child support in accordance with the Child Support Guidelines promulgated by the court, which are in force and effect at the time of said income increase.

These Child Support Guidelines (Guidelines) are those promulgated by the Bernalillo County District Judges to assist in fixing amounts for child support.

Lekvold is an employee of a federal contractor who was making $17,940 at the time of the divorce. In July 1978 his salary increased to $19,500 and in July 1979 it increased to $21,060. According to the Guidelines, $270 per month for two children was the appropriate amount at the time of the divorce. According to the Guidelines the amount should have been increased to $315 and then to $355 to reflect the pay increase of Lekvold. Before these proceedings commenced he voluntarily increased his child support payments for a while to $315, then dropped the payments to $270.

The divorce decree provided that the parties would own the home as tenants-in-,common; that Henderson would live there and make the mortgage payments; but, that at such time as she no longer desired to live in the residence, it would be sold and the money divided. Lekvold later negotiated a purchase of Mrs. Henderson’s one-half interest. At the time of this hearing, he was living in the large three-bedroom house alone. He has not remarried and the primary strain on his finances is the mortgage payments on this house. Lekvold testified that he had used all of his available cash and savings for the purchase of the half interest in the house, in payment of his child support obligations, and for payment of a $1,500 settlement with Mrs. Henderson for her lost wages and hospital expenses as a result of a post-divorce battery on her. Lekvold testified that he is broke and only eats “chicken-noodle soup and McDonald hamburgers.”

Mrs. Henderson was employed as a legal secretary at the time of the divorce, making approximately $7,000 to $8,000 per year. By the time of his hearing, she was no longer employed because she, the parties’ two children, her new husband and his minor son had moved to Wyoming. Mrs. Henderson testified that she had been searching for employment but had not yet found any. She thought she would be able to find a job paying as much as $1,200 per month. Her new husband was making $21,000 a year at his new job in Wyoming, almost the identical amount of Lekvold’s salary. Some testimony at the hearing went to the fact that she and her new spouse had purchased an $80,000 home in Wyoming, a new car and had spent considerable money on their hobby of skeet shooting. She testified that the children, both girls, were ten and fourteen years of age at the time of the motion hearings (now eleven and fifteen years); that the cost of supporting them had increased as they got older; that the cost of living had escalated appreciably since the divorce; and that the living expenses in Wyoming were higher than in Albuquerque. She admitted that the “lifestyle” for her and the children had improved after her remarriage.

Mrs. Henderson contended that as of September 15, 1979 Lekvold was delinquent in child support in the amount of $1,794.81 based upon testimony as to payments made and the corresponding salary increases of Lekvold as applied to the Child Support Guidelines. The trial court found that the arrearage in child support amounted to $864.94, but allowed Lekvold $270 credit for payment of community debts that surfaced after the divorce. Mrs. Henderson claimed that the $591.94 awarded her by the trial court was not supported by the evidence or a finding and that the record is silent as to how the figure was derived.

The trial court found that there had been no order of the court issued or requested, previous to the motion in this case, to force compliance with the provision in the decree for an escalation of the child support payments as the wages of Lekvold increased and that therefore the trial court could not award the increased amount that would have resulted from the prior entry of a court order to that effect.

The trial court further held that the husband had been unable to pay “the substantial indebtedness of the parties and maintain his obligation to pay child support”; that there had been a substantial and favorable change in the mother’s financial circumstances since her remarriage; that the lifestyle of the children had improved considerably; that the child support was reduced to $100 per month and that the parties should bear their own costs and attorney fees.

Although findings were requested by Mrs. Henderson, the court made no findings on the amount or dates of the increases in Lekvold’s wages; the amount of increase that was thus generated under the original decree by way of increase of child support; the increase in the financial burden on Lekvold resulting from his investing in the home previously owned by the parties amounting to approximately $600 per month; the amount of increases in expenses caused by inflation; the higher cost of living in Wyoming and the added amount necessary for the older children; and the decrease in her income because of not having a salary.

1. Father’s Voluntary Increase of Debt.

To warrant modification in the amount of child support already awarded there must be a substantial change of circumstances which materially affects the existing welfare of the child and which must have occurred since the prior adjudication where child support was originally awarded. Spingola v. Spingola, 91 N.M. 737, 580 P.2d 958 (1978).

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Bluebook (online)
621 P.2d 505, 95 N.M. 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-lekvold-nm-1980.