Koch v. Koch

• Court: New Mexico Court of Appeals
• Decided: November 27, 2012
• Docket: 32,324
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 KATHRYN J. KOCH,

3 Petitioner-Appellee,

4 v. No. 32,324

5 STEVEN J. KOCH,

6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Gerard J. Lavelle, District Judge

9 Armand T. Carian 10 Albuquerque, NM

11 for Appellee

12 Steven J. Koch 13 Albuquerque, NM

14 Pro Se Appellant

15 MEMORANDUM OPINION

16 SUTIN, Judge. 1 Respondent (Father) appeals from the district court’s orders awarding Petitioner

2 (Mother) child support arrears and unpaid medical expenses for the parties’ children.

3 [RP 97, 107] This Court issued a calendar notice proposing to reverse the district

4 court’s award of child support arrears, but affirm the award of unpaid medical

5 expenses. Petitioner has filed a memorandum in opposition to this Court’s proposed

6 summary reversal of the award of child support arrears. Respondent has not filed any

7 objections to this Court’s proposed summary affirmance of the unpaid medical

8 expenses. “Failure to file a memorandum in opposition constitutes acceptance of the

9 disposition proposed in the calendar notice.” Frick v. Veazey, 116 N.M. 246, 247, 861

10 P.2d 287, 288 (Ct. App. 1993). Accordingly, we affirm the district court’s order

11 requiring Respondent to pay unpaid medical expenses for the parties’ children.

12 On the issue of the district court’s award of child support arrears, we proposed

13 to reverse the district court’s order in our calendar notice. This Court’s proposed

14 reversal was premised on the general prohibition that district courts cannot

15 retroactively modify a support obligation. Ingalls v. Ingalls, 119 N.M. 85, 88, 888

16 P.2d 967, 970 (Ct. App. 1994). [CN 4] We noted the holding in Ingalls that “parties

17 may not, by private agreement, modify future child support obligations; rather,

18 modification of future child support is a matter to be determined by the courts.” Id.

19 at 86, 888 P.2d at 968. This Court also pointed out that, to the extent an express or

2 1 implied agreement between the parties had been reached, such agreements “should

2 receive serious consideration by the trial court in weighing prospective modification.”

3 Id. at 88-89, 888 P.2d at 970-71 (emphasis added).

4 Petitioner has responded by arguing that this Court is not taking into

5 consideration the fact that the agreement between the parties was supported by

6 consideration and was, as Petitioner contends, “an enforceable contract.” [MIO 2] We

7 are not persuaded. This Court’s opinion in Ingalls does not hinge on the existence of

8 consideration; rather, it generally prohibits modification of support through private

9 agreements. Id. at 86, 888 P.2d at 968. Furthermore, drawing such a distinction

10 appears contrary to the basis for our decision in Ingalls. Our courts do not permit the

11 parties to enter into agreements regarding child support payments and change the

12 terms of the court-ordered support because such agreements may work to the

13 detriment of the child, and “the child’s present and future welfare takes precedence

14 over the rights of the court-designated payor and payee of child support payments.”

15 Id. at 88, 888 P.2d at 970 (alteration, internal quotation marks, and citation omitted).

16 If the parties entered into an agreement then, as we stated in Ingalls, the proper and

17 preferable procedure would have been for Petitioner “to seek immediate judicial

18 ratification” of that agreement. Id. Finally, Petitioner has not directed this Court to

19 any authority calling into question this Court’s decision in Ingalls. See State v.

3 1 Mondragon, 107 N.M. 421, 423, 759 P.2d 1003, 1005 (Ct. App. 1988) (stating that

2 “[a] party responding to a summary calendar notice must come forward and

3 specifically point out errors of law and fact” and the repetition of earlier arguments

4 does not fulfill this requirement); see also In re Adoption of Doe, 100 N.M. 764, 765,

5 676 P.2d 1329, 1330 (1984) (stating that where a party cites no authority to support

6 an argument, we may assume no such authority exists).

7 Accordingly, for the reasons stated in this Opinion and in this Court’s notice of

8 proposed disposition, we affirm the district court’s award of unpaid medical expenses

9 and reverse the district court’s award of child support arrears based on the parties’

10 private agreement.

11 IT IS SO ORDERED.

12 __________________________________ 13 JONATHAN B. SUTIN, Judge

14 WE CONCUR:

15 __________________________________ 16 MICHAEL D. BUSTAMANTE, Judge

17 __________________________________ 18 MICHAEL E. VIGIL, Judge