Steinmetz v. Steinmetz

• Court: New Mexico Court of Appeals
• Decided: January 8, 2010
• Docket: 29,726
• Status: Unpublished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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BRYAN JAMES STEINMETZ,

8 Petitioner-Appellant,

9 v. NO. 29,726

10 SUSAN CAROL STEINMETZ,

11 Respondent-Appellee,

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Angela J. Jewell, District Judge

14 Bryan James Steinmetz 15 Albuquerque, NM

16 Pro Se Appellant

17 John J. Duhigg 18 Albuquerque, NM

19 for Appellee

20 MEMORANDUM OPINION

21 BUSTAMANTE, Judge. 1 Father appeals the divorce decree filed on June 10, 2009. [DM 178; 191] We

2 proposed to affirm in a calendar notice, and Father has responded with a memorandum

3 in opposition. We have carefully considered Father’s arguments, but we are not

4 persuaded by them. We therefore affirm.

5 Father continues to claim that the district court erred in allowing new domestic

6 violence (DV) charges to be included in the same file as previous domestic violence

7 charges that had been dismissed for lack of evidence. Father also continues to claim

8 that the domestic violence case should not have been combined with the domestic

9 relations (DM) case. Father appears to claim that, at the very least, a new cause

10 number should have been assigned to the “new” DV charges. In addition, Father

11 claims that some pleadings filed with the district court indicate that the DV case was

12 considered to be related to the DM case, thereby causing bias against Father in the

13 DM case.

14 As discussed in our calendar notice, there is nothing to indicate that the

15 dismissed DV charges had any impact, whatsoever, on the DV charges that were later

16 filed and found to be substantiated, or on the order of protection entered by the district

17 court. The order of protection was based on the later DV allegations, and not on the

18 initial allegations. Cf. Lewis ex rel. Lewis v. Samson, 2001-NMSC-035, ¶ 26, 131

2 1 N.M. 317, 35 P.3d 972 (stating that a district court has supervisory control over its

2 docket and possesses inherent power to manage its own affairs for the orderly and

3 expeditious disposition of cases). Furthermore, there is nothing to indicate bias on the

4 part of the judge presiding over the DM case. Although the district judge apparently

5 took judicial notice of the DV charges when determining the custody arrangement for

6 the children, that alone does not establish bias. See State v. Hernandez, 115 N.M. 6,

7 20, 846 P.2d 312, 326 (1993) (explaining that judicial bias must be personal and

8 cannot be based on adverse rulings). Because there was no basis for dismissing the

9 order of protection in this case, the district court did not err in denying Father’s

10 motion.

11 Father again argues that income should not have been imputed to him for

12 purposes of calculating child support. Father now argues that he is disabled and not

13 simply “underemployed” or “unemployed.” Father states that he receives public

14 assistance from a program for the indigent as well as food stamps, and claims that his

15 public assistance income cannot be considered in determining “gross income” with

16 respect to child support obligations. Father also refers to statutes concerning the

17 presumption of indigency when an “applicant” is receiving public assistance. [MIO

18 8] This argument was not presented to the district court, and is therefore not properly

3 1 preserved for appeal. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717,

2 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that

3 appellant fairly invoked a ruling of the trial court on the same grounds argued in the

4 appellate court.”) We will not consider arguments that were not presented to the

5 district court.

6 Moreover, a review of the final decree shows that income from public

7 assistance was not included as “gross income” for purposes of determining child

8 support obligations of the parties. In other words, as required by statute, the gross

9 income did not include public assistance benefits. Instead, the district court imputed

10 an amount of gross income to each party based on minimum wage. As discussed in

11 our calendar notice, gross income is “potential income” of a parent “if unemployed

12 or underemployed.” NMSA 1978, § 40-4-11.1(C)(1) (2008). Here, neither parent was

13 employed, yet both parents are obligated to provide support for their children. See

14 Brannock v. Brannock, 104 N.M. 385, 386, 722 P.2d 636, 637 (1986). Therefore, the

15 district court imputed minimum-wage “potential” income to each parent. We point

16 out that the authorities cited by Father do not support his argument that, if he is

17 receiving public assistance benefits and he is unemployed, income cannot be imputed

18 to him. In addition, we note that, although Father claims to be disabled, the district

19 court was presented with no evidence to support a claim that Father is totally disabled

4 1 and unable to work in any capacity. The district court did not abuse its discretion in

2 this case. See Styka v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16.

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

4 the district court.

5 IT IS SO ORDERED.

6 7 MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:

9 10 JAMES J. WECHSLER, Judge

11 12 CELIA FOY CASTILLO, Judge