Tolaymat v. Tarakji

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 ALMA TOLAYMAT, 3 Petitioner-Appellee, 4 v. NO. A-1-CA-36892 5 MUHAMMAD ANAS TARAKJI, 6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jane C. Levy, District Judge

9 Armstrong, Roth, Whitley, Johnstone LLC 10 Jessica C. Roth 11 Albuquerque, NM

12 for Appellee

13 Caren Ilene Friedman 14 Santa Fe, NM

15 for Appellant 16 MEMORANDUM OPINION 17 HANISEE, Judge. 18 {1} Father appeals from the district court’s order on the basis that it erred in 19 modifying child support absent a demonstration by Mother that she was entitled to a

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1 statutory presumption of a material and substantial change in circumstances. [MIO 2] 2 This Court’s calendar notice proposed to summarily affirm. [CN 1] Father filed a 3 memorandum in opposition to the proposed disposition. We are not persuaded by 4 Father’s arguments and affirm. 5 {2} When the parties entered into a Marital Settlement Agreement (MSA), they 6 agreed to use the monthly income figure near the upper limit of the child support 7 guideline schedule for the purposes of settlement, despite the parties’ apparent 8 knowledge that it was based on an income figure far lower than Father’s actual 9 earnings. [MIO 4] When Mother later moved for an upward modification of child 10 support, the district court used that same figure to compare with Father’s 2016 11 monthly income to arrive at a conclusion that there was a change of more than twenty 12 percent, warranting a presumption of a change of circumstances and modification of 13 child support. [DS 16; RP 226, FOF 17; RP 229, COL P-R] See NMSA 14 1978, § 40-4-11.4(A) (1991) (“There shall be a presumption of material and 15 substantial changes in circumstances if application of the child support guidelines in 16 [NMSA 1978,] Section 40-4-11.1 [(2008)] would result in a deviation upward or 17 downward of more than twenty percent of the existing child support obligation and 18 the petition for modification is filed more than one year after the filing of the 19 pre-existing order.”). This Court’s calendar notice proposed to affirm the district

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1 court’s order on the basis that there was no abuse of discretion with the manner in 2 which the district court calculated child support and utilized the applicable statutes. 3 [CN 3, 5] 4 {3} Father continues to argue that the district court erred in calculating his 2016 5 income for purposes of determining whether there was more than a twenty percent 6 increase warranting a modification of child support. [MIO 3-4] He contends that even 7 assuming the district court correctly calculated his 2016 actual income, it should have 8 compared it with his actual gross monthly income at the time of the MSA, rather than 9 the amount agreed to in the MSA, which would have reflected a less-than-four-percent 10 change. [Id.] He further argues that even if the district court’s erroneous calculation 11 is applied, entitling Mother to a statutory presumption, the presumption was rebutted. 12 [MIO 6] 13 {4} Father relies on Jury v. Jury for the contention that “if the updated financial 14 information resulted in the obligor’s child support obligation increasing by twenty 15 percent, but the obligee failed to offer any additional evidence justifying modification, 16 the statutory presumption could be rebutted.” 2017-NMCA-036, ¶ 40, 392 P.3d 242 17 (emphasis added). Father asserts that Mother was unable to muster any evidence that 18 the needs of the parties’ four-year-old child were materially and substantially different 19 [MIO 6], and contends that Mother supports herself with Father’s child support, has

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1 no income other than the child support, received a sizeable property settlement from 2 the divorce, and has no monthly car or house payment. [MIO 5] Father additionally 3 asserts that when Child begins school, it will be tuition-free. [Id.] 4 {5} Father points to Spingola v. Spingola, 1978-NMSC-045, ¶ 13, 580 P.2d 958, 5 and Padilla v. Montaño, 1993-NMCA-127, ¶ 36, 862 P.2d 1257, which he asserts are 6 the most important guideposts for a district court’s exercise of discretion in setting 7 child support awards in high income cases. [MIO 7] Specifically, he asserts that even 8 if Mother was entitled to the statutory presumption, a proper application of the factors 9 in Spingola could not have resulted in an upward modification under the 10 circumstances of this case. [MIO 10] Father contends that a court must consider “the 11 life-style the children would be enjoying if the father and the mother were together 12 and the non-custodial parent had his present income level.” [Id.] Padilla, 1993- 13 NMCA-127, ¶ 36. Father suggests that because the parties lived quite modestly when 14 they were married, Mother should not be permitted to provide Child a higher standard 15 of living than the one the family lived by when they were together, particularly where 16 it comes at Father’s expense. [Id. 8] 17 {6} The factors applied in Padilla, which originated in Spingola, included the 18 consideration of “whether the income, surrounding financial circumstances, and 19 station in life demonstrated an ability by the father to provide additional advantages

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1 to his children above their actual needs.” Padilla, 1993-NMCA-127, ¶¶ 2, 36 2 (emphasis added). This factor favors upward modification when appropriate. 3 Consequently, we are not persuaded the proposition Father cites stands for the 4 contention asserted. Furthermore, while we recognize that the statutory presumption 5 could be rebutted, we are not persuaded that the district court abused its discretion in 6 determining there was insufficient evidence to rebut it. See Jury, 2017-NMCA-036, 7 ¶ 32 (“In the absence of direction from our Legislature with respect to the calculation 8 of child support obligations when the parties’ combined gross monthly income 9 exceeds $30,000, we presume that a district court retains broad discretion.”). We find 10 nothing inequitable with the district court’s upward modification of child support 11 under these facts. See Padilla, 1993-NMCA-127, ¶¶ 41-42 (recognizing the district 12 court’s broad discretion when applying the statutory presumption of material and 13 substantial change in circumstances, so long as the decision is equitable). 14 {7} In addition, Father also contends that the district court erroneously failed to 15 consider that he successfully petitioned for more time with Child. [MIO 11] Father 16 asserts that as a consequence, Mother will have Child for less time, he will be working 17 less in order to spend more time with Child, and he will therefore earn less income. 18 [MIO 11] However, Father does not inform us of what evidence he presented below 19 to support that a change in income had occurred. See Farmers, Inc. v. Dal Mach. &

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1 Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (stating that we 2 presume the correctness of the district court’s actions and the burden is on the 3 appellant to clearly point out how the district court erred). We note that Father has the 4 opportunity to seek a modification of child support if and when his income changes. 5 See § 40-4-11.4(A). Therefore, we are not persuaded by Father’s argument. See Wilde 6 v. Westland Dev. Co., 2010-NMCA-085, ¶ 30, 148 N.M. 627, 241 P.3d 628 7 (presuming that “the district court is correct and . . . the burden is on the appellant to 8 clearly demonstrate the district court’s error” (internal quotation marks and citation 9 omitted)). 10 {8} Lastly, Father asserts that where an initial child support award is predicated on 11 income above the top of the guidelines, a court should not increase that award unless, 12 in addition to evidence of increased income, there is evidence that the child’s needs 13 have increased. [MIO 8-9] While that type of evidence is considered under our case 14 law, it is not required by our case law or statute, and Father relies on case law from 15 other jurisdictions, which we are not bound by. [Id.] Father also contends that the 16 calendar notice sends the message that parties in a high-income child support case can 17 stipulate to a lower income to settle their dispute and then use that stipulated income 18 to claim entitlement to a presumption of a material and substantial change in 19 circumstances when it does not actually exist. [MIO 12] We disagree. Parties who

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1 enter into a voluntary settlement agreement and stipulate to income for the purposes 2 of calculating child support are bound by their agreement. See Edens v. Edens, 3 2005-NMCA-033, ¶ 22, 137 N.M. 207, 109 P.3d 295 (“If equitable, a stipulated 4 agreement should not be vacated merely because an award may have been unwise or 5 unfortunate in light of subsequent events.” (internal quotation marks and citation 6 omitted)). Father agreed to use an income figure that was substantially lower than his 7 actual monthly income for the purposes of settlement. Cf. Ottino v. Ottino, 8 2001-NMCA-012, ¶ 16, 130 N.M. 168, 21 P.3d 37 (concluding “that any binding 9 agreements made by a divorcing couple, which include terms in excess of what the 10 court could order on its own, are enforceable in contract.”). Absent a provision in the 11 MSA limiting the parties’ future use of this income figure or addressing potential 12 future modifications and limiting such instances to the presently agreed-upon figure, 13 Father is precluded from arguing that the district court erred by finding that his actual 14 2016 income, when compared with his agreed-upon MSA income figure, represents 15 a substantial increase in income. [DS 16] See Williams v. Crutcher, 2013-NMCA-044, 16 ¶ 8, 298 P.3d 1184 (“[A stipulated judgment . . . is still construed in the same way 17 that a judgment is construed.”). 18 {9} For all of these reasons and those stated in the calendar notice, we affirm. 19 {10} IT IS SO ORDERED.

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1 ________________________________ 2 J. MILES HANISEE, Judge

3 WE CONCUR:

4 ___________________________ 5 STEPHEN G. FRENCH, Judge

6 ___________________________ 7 DANIEL J. GALLEGOS, Judge