Jury v. Jury

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: February 2, 2017 4 NOS. 34,257 and 34,564 (consolidated) 5 COLETTE C. JURY, 6 Petitioner-Appellant, 7 v. 8 VICTOR R. JURY, 9 Respondent-Appellee. 10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Deborah Davis Walker, District Judge 12 Caren I. Friedman 13 Santa Fe, NM 14 Bishop Law P.C. 15 Julie Bishop 16 Albuquerque, NM 17 for Appellant 18 Kerry Kiernan, P.C. 19 Kerry Kiernan 20 Albuquerque, NM 21 for Appellee 1 OPINION 2 WECHSLER, Judge. 3 {1} This case arises from the district court’s denial of Petitioner Colette C. Jury’s 4 motion to modify the child support decree (the 2010 decree) that resulted from the 5 dissolution of the marriage between Petitioner and Respondent Victor R. Jury. After 6 considering evidence of the parties’ updated financial information, the district court 7 ruled that the 2010 decree was not subject to modification because neither party 8 demonstrated material and substantial changes in circumstances affecting the welfare 9 of the children.1 10 {2} Petitioner claims that the district court’s ruling resulted from its erroneous 11 determination of the parties’ gross monthly incomes and, by extension, child support 12 obligations. Respondent argues that, even if the district court miscalculated the 13 parties’ gross monthly incomes, its determination that no material and substantial 14 changes in circumstances affecting the welfare of the children occurred is dispositive. 15 {3} District courts have discretion to deviate from the child support guidelines, 16 NMSA 1978, § 40-4-11.1 (2008), as provided in NMSA 1978, Section 40-4-11.2 17 (1989). However, such discretion does not extend to the process of calculating the 1 18 Respondent also filed a motion to modify the 2010 decree, which was denied. 19 Respondent does not appeal this denial. 1 parties’ gross monthly incomes. Calculation of the parties’ gross monthly incomes 2 must conform to the child support guidelines or precedential appellate court 3 interpretation of the child support guidelines. Therefore, to the extent that the district 4 court improperly deviated from the child support guidelines in calculating the parties’ 5 gross monthly incomes, we reverse and remand for recalculation. 6 {4} We recognize, however, that recalculation alone does not resolve the central 7 issue raised on appeal. Petitioner asks this Court to conclude that changes in income 8 indicated by the parties’ updated financial information entitled her to a modification 9 of the 2010 decree as a matter of law. Because the testimony and evidence offered at 10 trial does not support a modification at common law, we are unable to so conclude. 11 However, if recalculation of the parties’ gross monthly incomes results in a deviation 12 upward of more than twenty percent of the existing child support obligation, 13 Petitioner is entitled to “a presumption of material and substantial changes in 14 circumstances” as provided by NMSA 1978, Section 40-4-11.4(A) (1991). 15 {5} The district court’s deviation from the child support guidelines in calculating 16 the parties’ gross monthly incomes potentially deprived Petitioner of a presumption 17 of material and substantial changes in circumstances to which she was entitled as a 18 matter of law. If, on remand, the district court’s recalculation of the parties’ gross 19 monthly incomes results in a presumption of material and substantial changes in 2 1 circumstances under Section 40-4-11.4, the district court shall reconsider whether 2 Petitioner is entitled to a modification of the 2010 decree in light of this opinion. 3 {6} Petitioner additionally argues that the district court lacked evidence to support 4 its prospective reduction of the amount of child support awarded in the 2010 decree. 5 Respondent argues that the reduction was appropriate but agrees that the district 6 court’s failure to articulate how it determined the recalculated amount requires 7 remand. Because Respondent agrees that error occurred, we decline to provide 8 additional legal analysis. On remand, the district court shall determine whether, and 9 to what extent, the 2010 decree was subject to modification given the changes in 10 circumstances occurring on or around June 1, 2015. 11 {7} Because our reversal and remand undermines the district court’s rationale for 12 awarding certain attorney fees, such awards to Respondent in the amounts of $15,000 13 and $750 are reversed. However, we affirm the district court’s award of attorney fees 14 arising from post-judgment proceedings in the amount of $1,500 to Respondent. 15 BACKGROUND 16 A. The 2010 Decree 17 On September 11, 2006, Petitioner filed a petition to dissolve her marriage to {8} 18 Respondent. The district court’s February 22, 2010 judgment and order finalized 19 numerous matters between the parties, including the child support obligation. At the 3 1 time of the 2010 decree, the parties had two minor children of the marriage, ages 2 thirteen (Son) and nine (Daughter). Respondent derived the majority of his income 3 from his employment at, and shareholder interest in, Summit Electric Co., Inc. 4 (Summit Electric) and his shareholder interest in Jury & Associates, LLC (Jury & 5 Associates). Petitioner did not work outside the home. 6 {9} Substantial testimony and evidence related to the parties’ income and financial 7 resources was offered at trial. Exhibits 16 and 16A, which were filed as supplemental 8 exhibits to the appellate record on July 14, 2016, appear to have featured prominently 9 in the district court’s 2010 determination. Exhibits 16 and 16A contained statements 10 of Respondent’s gross income, cash received, income taxes paid, and net income for 11 the years 2001 through 2009. Applying the financial information in these exhibits, the 12 district court concluded that Respondent had an “earning capacity” of $750,000 per 13 year. In its ruling from the bench, the district court explained that $750,000 was not 14 Respondent’s actual gross annual income, but instead represented a conscious 15 deviation downward. While discussing specific evidence of Respondent’s then16 current year earnings, the district court stated “I think, if anything, the $750[,000] is 17 low.” 18 {10} After arriving at an annual income of $750,000, the district court subtracted 19 $120,000 paid by Respondent to Petitioner in spousal support. It then divided the 4 1 total amount by twelve, resulting in a gross monthly income for Respondent of 2 $52,500. 3 {11} The district court calculated Petitioner’s income by combining her spousal 4 support award and $4,000 per month of imputed earning capacity. It then divided the 5 total amount by twelve, resulting in a gross monthly income for Petitioner of $14,000. 6 {12} Having calculated the parties’ combined gross monthly income to be $66,500, 7 the district court calculated the percentage of combined gross monthly income. It 8 credited Respondent with seventy-nine percent of the parties’ combined gross 9 monthly income and Petitioner with twenty-one percent of the parties’ combined 10 gross monthly income. 11 {13} The district court then determined the basic child support obligation to be 12 $10,707. Although the child support guidelines in effect in February 2010 did not 13 allow for basic calculation of a combined gross monthly income of $66,500, the 14 district court elected to apply the historical formula to determine the basic child 15 support amount.2 16 17 18 19 20 21 22 2 Prior to the 2008 amendment of Section 40-4-11.1, the child support guidelines provided a formula for the calculation of basic child support to an infinite amount of combined gross monthly income. See § 40-4-11.1(K) (1995) (providing that “[f]or gross monthly income greater than $8,000, multiply gross by the following percentages: 11% [for one child,] 16.1% [for two children,] 18.8% [for three children] . . .”). Application of the pre-amendment formula to the parties’ combined gross monthly income results in $10,707 per month. 5 1 {14} The district court also calculated the total child support obligation, the retained 2 portion based upon custody, and the parties’ individual child support obligations. The 3 custodial calculation was based upon the children residing with Petitioner fifty-five 4 percent of each month and residing with Respondent forty-five percent of each 5 month. The district court calculated Petitioner’s monthly obligation to be $1,518 and 6 Respondent’s monthly obligation to be $6,978. It reconciled these obligations to 7 result in $5,460 owed by Respondent to Petitioner each month. It reduced this amount 8 by twenty-one percent of additional expenses, including the cost of the children’s 9 health care insurance and private school tuition. After these reductions, Respondent’s 10 total monthly child support obligation was $4,872. In accordance with Section 40-411 11.4(B), the district court ordered that the parties exchange updated financial 12 information each year. The merits of the 2010 decree are not on appeal or subject to 13 reconsideration by this Court. 14 B. The 2014 Denial of the Parties’ Motions to Modify the 2010 Decree 15 Respondent provided updated financial information to Petitioner on November {15} 16 14, 2011. On December 6, 2011, Petitioner filed a motion to modify the 2010 decree 17 based upon a “deviation upward of greater than twenty percent of the existing child 18 support obligation[.]” Respondent filed a motion in opposition on April 16, 2013, as 19 well as his own motion to modify the 2010 decree on January 7, 2014. He based his 6 1 motion to modify the 2010 decree upon allegations of substantial changes in 2 circumstances to the custodial time sharing and changes in the parties’ incomes. 3 {16} On January 30, 2012, the district court appointed James W. Francis, CPA, as 4 a Rule 11-706 NMRA expert in the case. He prepared a report that (1) analyzed the 5 parties’ 2011 gross incomes and (2) updated Exhibit 16A from the November 2009 6 trial with Respondent’s financial information from 2009 through 2011. 7 {17} The trial was conducted between April 30, 2014 and May 2, 2014. Francis 8 testified as to his conclusions about the district court’s previous determination of 9 Respondent’s gross income, stating, 10 11 12 13 14 15 16 17 18 19 20 [In 2009] the judge . . . took an average of the prior eight or nine years [of] after-tax cash income, averaged those out, and it came up to about $750,000. . . . The court then . . . subtracted from that $750,000, $120,000, which was the spousal support that [Respondent] was paying, $10,000 a month. That left a balance of $630,000, which the court divided by twelve, and said that [Respondent’s] monthly income for child support purposes was $52,500. So, if the court were to follow the exact same model . . . [Respondent’s] income for 2011, using the deviations that I described, would be $2,785,363. But that’s just for 2011. {18} Francis additionally testified that Respondent’s 2011 gross income was 21 comprised of salary from Summit Electric and pass-through earnings proportionate 22 to his ownership shares in Summit Electric and Jury & Associates. On direct 23 examination, counsel for Petitioner implied that the 2010 decree resulted from an 24 improper application of the child support guidelines because the district court 7 1 deducted income taxes paid from Respondent’s gross income. Francis replied that 2 pass-through income from certain corporate entities is, sometimes, subtracted from 3 gross income by courts as cash not received by the party. On cross-examination, 4 Francis agreed with counsel for Respondent that S-corporations frequently pass 5 through profits to shareholders for the purpose of paying income taxes. 6 {19} The parties testified as to the welfare of their children, essentially agreeing that 7 the children lack for nothing and are well provided for by both parents. The parties 8 also agreed that Son, of his own volition, currently resided with Respondent full-time, 9 but disputed the date on which this transition occurred. Based upon motions filed 10 during 2012, the district court ruled that Son ceased residing with Petitioner in late 11 2011. 12 {20} The district court denied both parties’ motions to modify the 2010 decree. As 13 rationale for its denial, the district court offered the following statements: 14 15 16 17 18 19 20 21 I did the best job I could [in 2009]. And I think it’s very interesting to note that, according to the report that you both stipulated into evidence and you both essentially agreed with, number-wise, that [Respondent’s] income after deduction for the tax payment was $711,562 [in 2009], and I put his income at $750,000. I think, all things considered, that was pretty close. I estimated that [Petitioner’s] earning capacity, in addition to her spousal support, was about $4,000, based on the testimony that I heard and I think it’s still at that point. 22 .... 8 1 2 3 4 5 6 And I said at the time, I don’t want to see you back in a year, or two years. I knew that [Respondent] . . . by all accounts, he’s a very capable businessman. He runs a very successful company. The income fluctuates up and down, through the last eleven years. There is a huge variation from year to year. So I was well aware at the time that I could pick a number and then the next year the numbers would be twice that much. 7 .... 8 9 10 11 12 Now, under the statute, and there was a quote from Spingola [v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958,] the court can only modify child support if there is a material and substantial change in circumstances which would, since the last order was entered, which would warrant the modification of the child support. 13 .... 14 15 16 I picked what I thought was a reasonable number [in 2009]. If [Petitioner] didn’t like that number, she should have appealed at the time. I can’t now go back and fix that number. 17 .... 18 19 20 21 22 23 24 [Petitioner] did argue that [Respondent’s] income has increased. Maybe, maybe not. If you look at, you know, we don’t even have the number for this year. I don’t have the numbers for 2013. I don’t even have the numbers for 2012; 2011, the numbers were good. And I’m looking . . . at the numbers that were calculated based on the method that was recently approved by the Court of Appeals in the Clark [v. Clark, 2014NMCA-030, 320 P.3d 991] decision[.] 25 .... 26 27 28 29 30 If I look at 2011, it’s one thing; if I look at the last three years, it’s something; if I look at the last ten, it’s one thing; if I look at the last eleven, it’s something totally different. So I don’t know if his income has gone up, because of . . . again, when a judge hears numbers from zero to a million, I have discretion to pick any number I want in that 9 1 2 3 range. And there is evidence to support my decision. I thought under the circumstances a ten-year average was appropriate. So I arrived at income figure for [Respondent’s] earning capacity at $813,463. 4 .... 5 6 7 If you take . . . the deduction for the spousal support, that brings it down to $693,463; that puts it at $57,788 a month, as opposed to $52,500 a month[.] . . . 8 9 10 11 That’s not to me something that is statistically significant. It’s not a twenty percent change in his income. If we use the old worksheets, which I really don’t want to do because there are no worksheets that apply to this current situation. 12 .... 13 14 But if we put this number on the old guidelines, there wouldn’t be a twenty percent change in that bottom baseline child support amount. 15 .... 16 17 18 19 20 So basically, what I’m finding is that neither side carried his or her burden of proof to show that there’s been a change, a substantial change materially affecting the welfare of the children. So we don’t get to the cap issue. We don’t get to the Spingola [, 1978-NMSC-045] analysis. Both motions are denied. The child support remains the same. 21 {21} The district court reiterated its rationale and the income calculation 22 methodology in a subsequent hearing on May 16, 2014. That hearing resulted in an 23 order, entered on June 10, 2014, which provided that (1) a hearing on attorney fees 24 would be held on August 28, 2014 and (2) the parties must submit proposed findings 10 1 of fact and conclusions of law as to all appellate issues within fifteen days after the 2 hearing on attorney fees. Petitioner orally indicated that she would not appeal. 3 C. Attorney Fees and Findings of Fact and Conclusions of Law 4 The August 28, 2014 hearing on attorney fees resulted in an award of $15,000 {22} 5 to Respondent. In support of its award, the district court stated, “[Petitioner’s] initial 6 motion was to increase child support. She did not get an increase in child support. 7 [Respondent] prevailed on that issue. That’s how I can decide [that Respondent is 8 entitled to attorney fees].” Additionally, the district court’s ruling included a 9 reduction in Respondent’s child support obligation, effective June 1, 2015, based on 10 Son’s pending eighteenth birthday and graduation from high school. Both parties 11 indicated that they would not appeal. 12 {23} On September 30, 2014, the district court held a hearing to present the final 13 order. During this hearing, Petitioner raised a perceived inconsistency between the 14 district court’s oral rulings on May 2, 2014 and August 28, 2014 and requested a 15 deadline for findings of fact and conclusions of law. The district court refused, 16 stating, “We’re done. I’ve already ruled. You’ve already stated on the record that 17 nobody’s appealing. We can’t at this point.” The district court entered separate orders 18 on the merits and for attorney fees. 11 1 {24} On October 24, 2014, Petitioner filed a motion to reconsider numerous issues, 2 including the district court’s (1) denial of the motion to modify the 2010 decree on 3 the merits; (2) sua sponte reduction of Respondent’s child support obligation 4 effective June 1, 2015; (3) award of attorney fees to Respondent; and (4) refusal to 5 allow the submission of findings of fact and conclusions of law. The district court 6 held a hearing on Petitioner’s motion to reconsider on October 29, 2014. This hearing 7 resulted in a partial grant and partial denial of Petitioner’s motion. With respect to 8 findings of fact and conclusions of law, the district court ruled that “[b]oth sides 9 waived their right to submit findings and conclusions under Rule [1-052 NMRA] and 10 pursuant to my [June 10, 2014] order.” The district court awarded $750 in attorney 11 fees to Respondent for defending the motion. 12 {25} Petitioner filed a timely appeal to this Court. During the pendency of this 13 appeal, Respondent made efforts to depose Petitioner in accordance with Rule 1-069 14 NMRA and to gather information related to enforcement of the district court’s award 15 of attorney fees from other sources. Petitioner filed various motions seeking 16 protection from Respondent’s enforcement efforts. On February 2, 2015, the district 17 court awarded Respondent $1,500 in attorney fees for costs incurred in defending 18 Petitioner’s motions and filing related motions. Petitioner appealed this award of 19 attorney fees. Petitioner’s two appeals were consolidated by order of this Court. 12 1 STANDARD OF REVIEW 2 {26} Child support determinations are made at the discretion of the district court and 3 are reviewed for abuse of discretion. Styka v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 4 515, 972 P.2d 16. That discretion, however, “must be exercised in accordance with 5 the child support guidelines.” Id. A district court abuses its discretion if “it applies an 6 incorrect standard, incorrect substantive law, or its discretionary decision is premised 7 on a misapprehension of the law.” Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 8 N.M. 693, 104 P.3d 559 (internal quotation marks and citation omitted). In 9 determining whether a deviation from the child support guidelines resulted from a 10 mispprehension of law, we apply de novo review. Id. 11 FINDINGS OF FACT AND CONCLUSIONS OF LAW 12 {27} As an initial matter, we address the notable absence of findings of fact and 13 conclusions of law supporting the district court’s ruling. Neither Petitioner nor 14 Respondent requested or submitted proposed findings of fact or conclusions of law 15 prior to the district court’s deadline of September 12, 2014. Rule 1-052(A) provides 16 that “[i]n a case tried by the court without a jury, . . . the court shall enter findings of 17 fact and conclusions of law when a party makes a timely request.” As a general rule, 18 a party’s failure to make such a request within ten days, or as otherwise ordered by 19 the district court, operates as a waiver of the right to specific findings of fact and 13 1 conclusions of law. See Rule 1-052(B); Wagner Land & Inv. Co. v. Halderman, 19722 NMSC-019, ¶¶ 7, 11, 83 N.M. 628, 495 P.2d 1075. However, the absence of findings 3 of fact and conclusions of law does not operate as a bar to appellate review. See Rio 4 Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-091, ¶ 22, 287 P.3d 5 318 (“Rule 1-052 was rewritten in 2001, and the current version omits reference to 6 preservation of error as this is a matter for the appellate rules.” (internal quotation 7 marks and citation omitted)). Petitioner argues on appeal that the district court’s 8 misapprehension of Section 40-4-11.1 resulted in its conclusion that the 2010 decree 9 was not subject to modification and asserts that the 2010 decree is subject to 10 modification as a matter of law. This Court may review Petitioner’s arguments on the 11 record before us. 12 APPLICATION OF THE CHILD SUPPORT GUIDELINES AND RELATED 13 STATUTES 14 A. Determination of Child Support Obligations 15 The codification of child support guidelines arose in response to a lack of {28} 16 uniformity of support awards across the country. Charles J. Meyer et al., Child 17 Support Determinations in High Income Families—A Survey of the Fifty States, 28 18 J. Am. Acad. Matrim. Law. 483, 484-85 (2016). In 1988, our Legislature enacted 19 Section 40-4-11.1, which significantly limited the discretion of the district courts in 20 making determinations of child support obligations. See Perkins v. Rowson, 199014 1 NMCA-089, ¶ 13, 110 N.M. 671, 798 P.2d 1057 (“[I]t is apparent that Section 2 [40-4-]11.1 is a substantial change in the substance of the law, and a significant 3 restriction of the trial court’s formerly broad discretion in determining the amount of 4 a parent’s support obligation.”); see also Leeder v. Leeder, 1994-NMCA-105, ¶ 6, 5 118 N.M. 603, 884 P.2d 494 (“[T]he guidelines are presumed to provide the proper 6 amount of child support[.]”). The scope of this limitation is expressed in Section 407 4-11.1(A), which states, in pertinent part, “[i]n any action to establish or modify child 8 support, the child support guidelines . . . shall be applied to determine the child 9 support due . . . Every decree or judgment of child support that deviates from the 10 guideline amount shall contain a statement of the reasons for the deviation.” 11 (Emphasis added.) 12 {29} While “deviation from the child support guideline amounts set forth in Section 13 40-4-11.1” is permitted, no such deviation is authorized with respect to the district 14 court’s calculation of the parties’ gross monthly incomes. Section 40-4-11.2 15 (emphasis added); see § 40-4-11.1(C)(2), (K) (describing the inputs and methodology 16 used to calculate gross income for purposes of determining child support obligations). 17 Section 40-4-11.1(C)(2) defines “gross income” as “income from salaries, wages, 18 tips, commissions, bonuses, dividends, severance pay, pensions, interest, trust 19 income, annuities, capital gains, social security benefits, workers’ compensation 15 1 benefits, unemployment insurance benefits, disability insurance benefits, significant 2 in-kind benefits that reduce personal living expenses, prizes and alimony or 3 maintenance received[.]” Certain sources of income, such as means-tested public 4 assistance and child support payments received for other children, are exempted from 5 gross income. Section 40-4-11.1(C)(2)(a). Certain expenditures, such as spousal and 6 child support actually paid, result in a reduction of gross income. Section 40-47 11.1(C)(2)(c), (d). 8 {30} In circumstances in which income is derived from proprietorship of a business 9 or joint ownership of a partnership or closely held corporation, “ ‘gross income’ 10 means gross receipts minus ordinary and necessary expenses[.]” Section 40-411 11.1(C)(2)(b). As a practical matter, this Court is “more concerned with a parent’s 12 actual cash flow than we are with income as represented on tax returns.” Major v. 13 Major, 1998-NMCA-001, ¶ 5, 124 N.M. 436, 952 P.2d 37. An example of this “actual 14 cash flow” principle arose in Clark, in which this Court concluded that “Subchapter-S 15 corporation funds actually distributed to the shareholder-spouse must be attributed 16 to the shareholder-spouse as [gross] income” unless the distribution “was used for 17 business purposes or to offset the payment [of] income taxes resulting from any K-1 18 allocations.” 2014-NMCA-030, ¶ 12. The rationale underlying Clark—that cash 19 passed to a shareholder for the express purpose of paying income taxes is not 16 1 “available to apply toward the support of [the] children”—is consistent with our child 2 support jurisprudence. Major, 1998-NMCA-001, ¶ 9. To a certain extent, allowing 3 for the deduction of taxes paid on K-1 allocations muddles the definition of “gross 4 income” in Section 40-4-11.1(C). However, taxes paid on W-2 earnings are not 5 deducted from gross income for purposes of calculating child support obligations. See 6 Boutz v. Donaldson, 1999-NMCA-131, ¶ 25, 128 N.M. 232, 991 P.2d 517 (“We can 7 discern no clear intent in the statute to consider hypothetical tax consequences of 8 reported income before it is inserted into the child support tables. From a survey of 9 the statutory language used in defining ‘gross income,’ we see that the Legislature has 10 included all kinds of income without any express regard for the varying effect of 11 taxes.”). 12 {31} Just as Section 40-4-11.1(C) provides the sources of, and allowable deductions 13 from, gross income, Section 40-4-11.1(K) provides temporal direction for calculating 14 gross income, stating, “Use current income if steady. If income varies a lot from 15 month to month, use an average of the last twelve months, if available, or last year’s 16 income tax return.” (Emphasis added.) Our appellate interpretations are consistent 17 with the statutory language. See Spingola, 1978-NMSC-045, ¶ 13 (holding that a 18 child support determination “requires that evidence of [an obligor’s] current financial 19 resources be fully considered” (emphasis added)); Boutz, 1999-NMCA-131, ¶ 10 17 1 (holding that it was error to use “income from other than the year in question”). While 2 no New Mexico appellate court has expressly considered the appropriateness of 3 multi-year averaging, other jurisdictions allow multi-year averaging when self4 employment or business income is subject to fluctuation. See, e.g., In re Marriage of 5 Garrett, 785 N.E.2d 172, 178 (Ill. App. Ct. 2003) (affirming the district court’s use 6 of a three-year average of self-employment income as a physician); Roberts v. 7 Roberts, 924 So. 2d 550, 553 (Miss. Ct. App. 2005) (affirming the district court’s use 8 of a three-year average of self-employment income from pharmaceutical sales); Gress 9 v. Gress, 743 N.W.2d 67, 74-75 (Neb. 2007) (affirming the district court’s use of a 10 three-year average of self-employment income from farming and stating “it appears 11 that both here and elsewhere, a [three]-year average tends to be the most common 12 approach in cases where a parent’s income tends to fluctuate [and] even among the 13 jurisdictions which permit an average of more than [three] years, courts appear 14 reluctant to use more than a [five]-year average”); see also Zimin v. Zimin, 837 P.2d 15 118, 123 (Alaska 1992) (affirming the district court’s use of current self-employment 16 income from commercial fishing and stating “although income averaging is clearly 17 appropriate [when income fluctuates], a ten-year average is generally not a reliable 18 indicator of an obligor parent’s current earning capacity”). 18 1 {32} After calculating each party’s gross monthly income, that amount is combined 2 and entered into Section 40-4-11.1(K), Worksheet B. Using the parties’ combined 3 gross monthly income and each party’s percentage of combined income, the district 4 court must determine the basic monthly support by reference to the basic child 5 support schedule. Section 40-4-11.1(K). The basic child support schedule provides 6 the presumptive amount of child support for combined gross monthly income up to 7 $30,000. Section 40-4-11.1(A), (K). Unlike other jurisdictions, our Legislature has 8 not specifically authorized district courts to use discretion in calculating child support 9 obligations when gross monthly income exceeds the maximum amount on the basic 10 child support schedule. Cf. Colo. Rev. Stat. § 14-10-115(7)(E) (2016) (“The judge 11 may use discretion to determine child support in circumstances where combined 12 adjusted gross income exceeds the uppermost levels of the schedule of basic child 13 support obligations[.]”); see also Meyer, supra, at 500 n.68 (noting that “New Mexico 14 does not have any high income instruction”). In the absence of direction from our 15 Legislature with respect to the calculation of child support obligations when the 16 parties’ combined gross monthly income exceeds $30,000, we presume that a district 17 court retains broad discretion.3 See Peterson v. Peterson, 1982-NMSC-098, ¶ 9, 98 3 18 Relevant legal scholarship indicates that enacted child support guidelines 19 provide a presumptive minimum amount of child support in high-income scenarios. 20 See Laura W. Morgan, The High-Income Parent, Child Support Guidelines 19 1 N.M. 744, 652 P.2d 1195 (“Child support determinations are an area of the law in 2 which trial court are allowed broad discretion.”). As such, if the parties’ combined 3 gross monthly income exceeds $30,000, the district court must determine the basic 4 monthly support after considering 5 6 7 8 9 10 11 12 [(1)] the total financial resources of both parents, including their monetary obligations, income, and net worth; [(2)] the life-style the children would be enjoying if the father and the mother were together and the non-custodial parent had his [or her] present income level; and [(3)] whether the income, surrounding financial circumstances, and station in life demonstrated an ability by the father [or mother] to provide additional advantages to [their] children above their actual needs. 13 Padilla v. Montano, 1993-NMCA-127, ¶ 36, 116 N.M. 398, 862 P.2d 1257 (citing 14 Spingola, 1978-NMSC-045, ¶ 24). 15 {33} After calculating the basic monthly support, whether using the basic child 16 support schedule or otherwise, the district court must continue to apply Worksheet 17 B of Section 40-4-11.1 to determine (1) the amount transferable from the obligor to 18 the obligee and (2) any reduction of this amount based upon the obligee’s 19 contribution to health and dental premiums, work-related child care, and 20 21 22 23 24 25 Interpretation & Application § 8.07 (2016) (“[W]here the guidelines do not contain an express formula, some states use a presumption that the highest amount provided for in the guidelines is the correct amount. . . . [T]hese states allow deviation. Thus, a court must first presumptively determine support as the highest amount provided in the guidelines, but the court may deviate upward from the presumed amount based on the specific needs of the child[.]” (emphasis added)). 20 1 extraordinary costs including, but not limited to, extraordinary medical, dental, and 2 counseling costs, extraordinary educational expenses, and transportation and 3 communication expenses necessary to implement custodial arrangements. Section 404 4-11.1(H), (I), (K). The previously determined percentage of combined income 5 figures prominently in this series of calculations. See § 40-4-11.1(K) (applying the 6 percentage of combined income to determine each party’s share of the basic monthly 7 support and each party’s share of additional payments and expenses). 8 {34} Numerous precedential opinions hold that a district court’s failure to calculate 9 gross income as per Section 40-4-11.1(A) and Section 40-4-11.1(K) is error. For 10 example, in Boutz, the obligor’s gross income included dividend earnings from 11 investments that fluctuated from year to year. 1999-NMCA-131, ¶ 9. At trial, the 12 district court rejected evidence indicating the amount of dividend earnings in the first 13 half of 1996 and instead used dividend earnings from 1995. Id. This Court concluded 14 that the use of 1995 dividend earnings was error. Id. ¶ 10. In so holding, we noted that 15 “[t]he [district] court did not explain its . . . reliance on what was arguably stale 16 information” and that the error was compounded by the district court’s use of 1996 17 income calculations for the obligee. Id. ¶¶ 9-10; see also id. ¶ 10 (“Calculating [the 18 parties’] dividend earnings by different methods violates one of the express goals of 19 the statute: making awards more equitable[.]” (alteration, internal quotation marks, 21 1 and citation omitted)). Similarly, in Klinksiek, the district court excluded rental 2 income from the obligee’s gross income. 2005-NMCA-008, ¶ 2. This Court reversed, 3 holding that Section 40-4-11.1(C)(2) requires calculation of “income from any 4 source.” Klinksiek, 2005-NMCA-008, ¶¶ 7, 12. Additionally, in Tedford v. Gregory, 5 the petitioner filed for retroactive child support from her alleged natural father. 19986 NMCA-067, ¶ 1, 125 N.M. 206, 959 P.2d 540. The district court awarded petitioner 7 $50,000 but failed to explain how it calculated that amount. Id. ¶ 32. This Court 8 reversed, holding that “the [district] court should first determine both the mother’s 9 and the father’s income during the applicable time periods [and s]uch findings should 10 be made before applying any deviation from the standard child support guidelines.” 11 Id. ¶¶ 31, 34. 12 {35} In summary, Klinksiek and Boutz hold that a district court may not deviate from 13 Section 40-4-11.1 in calculating the parties’ gross incomes. Klinksiek, 2005-NMCA14 008, ¶ 7; Boutz, 1999-NMCA-131, ¶ 10. Boutz additionally implies that the district 15 court must, to the degree possible, calculate the parties’ gross incomes during the 16 same time period. 1999-NMCA-131, ¶ 10. Clark and Boutz outlined the intersection 17 between gross income and income taxes in the child support context. Clark, 201418 NMCA-030, ¶ 12; Boutz, 1999-NMCA-131, ¶ 25. And Tedford clarified that gross 19 income must be calculated prior to any allowable deviations from the child support 22 1 guidelines. 1998-NMCA-067, ¶ 31. These holdings, along with the plain language of 2 the relevant statutes, guide our analysis of the present case. 3 B. Deviation From the Child Support Guidelines 4 Section 40-4-11.2 provides that “[a]ny deviation from the child support {36} 5 guideline amounts set forth in Section 40-4-11.1 . . . shall be supported by a written 6 finding in the decree, judgment or order of child support that application of the 7 guidelines would be unjust or inappropriate.” (Emphasis added.) As we have already 8 clarified, it is error to deviate from the child support guidelines in calculating the 9 parties’ gross incomes except as authorized by statute or appellate case law. However, 10 it is also error to deviate from the child support guidelines in any manner without 11 providing written justification for such deviation. See § 40-4-11.2; Tedford, 199812 NMCA-067, ¶ 33 (“[W]e conclude that the trial court erred . . . in failing to specify 13 the reasons for the trial court’s decision in deviating from the child support 14 guidelines.”). As indicated in Section 40-4-11.2, acceptable reasons for deviation 15 include circumstances in which “application of the guidelines would be unjust or 16 inappropriate” as indicated by “substantial hardship in the obligor, obligee or subject 17 children[.]” 23 1 C. Modification of Child Support Obligations 2 A district court may modify a child support obligation upon a showing of {37} 3 material and substantial circumstances subsequent to the adjudication of the pre4 existing child support order. Section 40-4-11.4(A). As indicated by our Supreme 5 Court in Spingola, a petitioner must demonstrate a substantial change in 6 circumstances affecting the welfare of the children to justify a modification. See 7 1978-NMSC-045, ¶ 16 (“The issue before the trial court on a petition to modify the 8 amount of child support is whether there has been a showing of a change in 9 circumstances. The change must be substantial, materially affecting the existing 10 welfare of the child, and must have occurred since the prior adjudication where child 11 support was originally awarded.”). This requirement is referred to as “the traditional 12 changed circumstances requirement” and governs the vast majority of child support 13 modification determinations. Perkins, 1990-NMCA-089, ¶ 4. 14 {38} However, in 1990, our Legislature enacted Section 40-4-11.4, which provided 15 “a court may modify a child support obligation without showing material and 16 substantial change in circumstances if application of the child support guidelines in 17 Section 40-4-11.1 . . . would result in a deviation upward or downward of more than 18 twenty percent of the existing child support obligation.” (Emphasis added.) This 19 Court limited Section 40-4-11.4 (1990), at least impliedly, in Perkins, which held that 24 1 “a showing of a substantial change in circumstances is still required before the trial 2 court can modify a parent’s child support obligation.” 1990-NMCA-089, ¶ 3. After 3 Perkins, our Legislature amended Section 40-4-11.4 to provide that “[t]here shall be 4 a presumption of material and substantial changes in circumstances if application of 5 the child support guidelines in Section 40-4-11.1 . . . would result in a deviation 6 upward or downward of more than twenty percent of the existing child support 7 obligation[.]” Section 40-4-11.4(A) (1991). This Court has subsequently viewed 8 Section 40-4-11.4 to supersede Perkins and to abrogate the traditional changed 9 circumstances doctrine under the circumstances contemplated. See Boutz, 199910 NMCA-131, ¶ 2 (concluding that a proposed increase of more than twenty percent in 11 the father’s child support obligation constituted a change in circumstances “sufficient 12 in an amount to justify a court-ordered modification of child support”). 13 {39} We conclude that Boutz is consistent with the legislative intent embodied in 14 Section 40-4-11.4. “[T]he Legislature, as the policy-making branch of government, 15 can alter or abrogate the common law[.]” City of Albuquerque v. N.M. Pub. 16 Regulation Comm’n, 2003-NMSC-028, ¶ 16, 134 N.M. 472, 79 P.3d 297. Our 17 Legislature has twice enacted legislation designed to limit the application of the 18 traditional changed circumstances requirement in favor of determining a petitioner’s 19 entitlement to a modification based upon “a deviation upward or downward of more 25 1 than twenty percent of the existing child support obligation[.]” Compare § 40-4-11.4 2 (1990), with § 40-4-11.4 (1991); see also Rhinehart v. Nowlin, 1990-NMCA-136, 3 ¶ 56, 111 N.M. 319, 805 P.2d 88 (Hartz, J., concurring in part and dissenting in part) 4 (“If the [L]egislature has spoken on a matter of public policy, the judiciary should 5 respect that policy in matters of statutory interpretation and common-law 6 jurisprudence.”). As such, we reiterate that, in cases in which application of the 7 parties’ updated financial information to the child support guidelines results in a 8 deviation upward or downward of more than twenty percent of the existing child 9 support obligation, the party seeking modification is entitled to a presumption of 10 material and substantial changes in circumstances justifying a modification. 11 {40} Of course, legal presumptions are generally rebuttable, and we agree with 12 Respondent that the Spingola factors provide analytical support for denying a motion 13 to modify child support even when application of Section 40-4-11.4(A) results in a 14 presumption of material and substantial changes in circumstances justifying a 15 modification. See Spingola, 1978-NMSC-045, ¶ 24 (providing considerations 16 relevant to determinations of child support obligations, including “what life-style the 17 children would be enjoying if the father and mother were not divorced and the non18 custodial parent had [their] level of income” and the “ability of [a parent] to furnish 19 additional advantages to his [or her] children above their actual needs”). For example, 26 1 if the updated financial information resulted in the obligor’s child support obligation 2 increasing by twenty percent, but the obligee failed to offer any additional evidence 3 justifying modification, the statutory presumption could be rebutted. 4 {41} However, Spingola also outlined principles that govern the use of judicial 5 discretion on a motion to modify child support. These principles include “judicious 6 consideration, honesty, common sense, and regular procedure for arriving at an 7 equitable solution for all[.]” Id. ¶ 20 (emphasis added). This language indicates that 8 determinations of child support obligations are intended to be equitable as between 9 the parties. See DeTevis v. Aragon, 1986-NMCA-105, ¶ 26, 104 N.M. 793, 727 P.2d 10 558 (holding that issues of child support are subject to “a fair balancing of the 11 equities in light of the best interests and welfare of the children”); see also § 40-412 11.2 (allowing deviation from the child support guidelines if application “would be 13 unjust or inappropriate”). 14 {42} In summary, the child support guidelines limit the need for judicial discretion 15 in the vast majority of child support determinations. However, Section 40-4-11.4 16 requires that the district court use discretion when faced with a statutory presumption 17 of material and substantial changes in circumstances. Spingola limits this discretion. 18 A child support determination must “arriv[e] at an equitable solution for all[.]” 19 Spingola, 1978-NMSC-045, ¶ 20. Therefore, when faced with a presumption of 27 1 material and substantial changes in circumstances arising under Section 40-4-11.4, 2 a district court does not have discretion to deny modification of the existing child 3 support obligation if doing so would perpetuate inequities as between the parties. 4 THE DISTRICT COURT PROCEEDINGS AND RULING 5 A. The Basic Child Support Amount 6 Although the issue is not expressly raised on appeal, the district court’s {43} 7 calculation of $10,707 as the basic amount of child support appears legally sound 8 under the circumstances. Both parties testified at trial that the children are well9 provided for. Petitioner testified that she “did not need more than [the adjusted 10 amount of] $4,872” to provide for the children. In cases in which the parties’ 11 combined gross monthly income exceeds $30,000, the district court has discretion to 12 calculate the appropriate basic child support amount, including by reference to the 13 historical formula as occurred here. Peterson, 1982-NMSC-098, ¶ 9 (“Child support 14 determinations are an area of the law in which trial court are allowed broad 15 discretion.”). 16 B. Spingola Analysis 17 In light of the testimony described immediately above, a Spingola analysis does {44} 18 not trigger a modification of the 2010 decree as a matter of law. We therefore 28 1 disagree with Petitioner’s argument that Respondent’s “enhanced financial position” 2 necessarily requires modification of the 2010 decree. 3 {45} Spingola holds that a “dramatic increase” in the obligor’s income may imply 4 a substantial change in circumstances and trigger a modification of child support. 5 1978-NMSC-045, ¶¶ 13-14. In so concluding, our Supreme Court noted that “[i]t is 6 ridiculous to assume that the welfare of the children would not have improved 7 considerably . . . [if] the father’s income had doubled.” Id. ¶ 13. However, in 8 Spingola, the father’s gross annual income increased from $42,000 to $87,000 over 9 a period of three years. Id. ¶ 3. This increase in income resulted in a potential increase 10 in the father’s monthly child support obligation from $1,000 to $3,000. Id. 11 {46} Neither the level of income nor the proposed modification of the existing child 12 support obligation in Spingola is analogous to the present case. In 1978, an additional 13 $2,000 per month in child support certainly would have positively impacted the 14 welfare of the parties’ three children. This potential for positive impact is emphasized 15 in the second and third Spingola factors that direct district courts to consider the 16 “welfare” of the children in the context of (1) “what life-style the children would be 17 enjoying if the father and mother were not divorced and the [father] had his present 18 level of income” and whether (2) “the father demonstrates an ability . . . to furnish 19 additional advantages to his children above their actual needs[.]” Id. ¶ 24. We are, 29 1 however, unable to conclude that these factors weigh against Respondent in this case. 2 Respondent’s gross income appears to have increased substantially from the $750,000 3 calculated for purposes of the 2010 decree. But Respondent provides child support, 4 after adjustments, of $4,872 each month for his two children. Petitioner testified at 5 trial that her children “have far more privilege than the majority of children.” Both 6 she and Respondent testified as to the luxuries afforded to the children with respect 7 to housing, education, travel, vehicles, and other material possessions. In Spingola, 8 the father argued at trial and on appeal that his obligation to support his children 9 extended only to “necessities.” Id. ¶ 21. That is not the case here. Instead, we 10 conclude that a Spingola analysis does not favor Petitioner’s position on appeal under 11 the circumstances of this case. Cf. Downing v. Downing, 45 S.W.3d 449, 456 (Ky. 12 2001) (“[N]o child, no matter how wealthy the parents, needs to be provided more 13 than three ponies.”). 14 C. Calculation of Gross Income 15 Although the district court has discretion to determine $10,707 as the basic {47} 16 child support amount, our review of the proceedings and record evidence reveals that 17 the district court improperly deviated from the child support guidelines in its 18 calculation of the parties’ gross incomes for 2011. This miscalculation, which 19 potentially deprived Petitioner of the “presumption of material and substantial 30 1 changes in circumstances” provided by Section 40-4-11.4, constitutes an abuse of 2 discretion requiring reversal and remand. 3 {48} We discern three distinct issues with the district court’s calculation of the 4 parties’ gross incomes: (1) the subtraction of taxes paid from Respondent’s gross 5 income; (2) the use of a ten-year average to calculate Respondent’s gross income; and 6 (3) the failure to calculate Petitioner’s current income. We discuss each issue in turn. 7 1. After Tax Income (Respondent) 8 Gross income is calculated using pre-tax income. See § 40-4-11.1(K) (“Gross {49} 9 Monthly Income: Includes all income[.]”); Boutz, 1999-NMCA-131, ¶ 25 (“We can 10 discern no clear intent in the statute to consider hypothetical tax consequences of 11 reported income before it is inserted into the child support tables.”). However, in its 12 May 2, 2014 oral ruling, the district court expressly indicated that the 2010 decree 13 was based upon Respondent’s income after deduction of tax payments. For 2011, the 14 district court gave no indication whether gross income was calculated pre- or post-tax 15 in the present case, but it stated that it was “looking at the numbers that were 16 calculated based on the method that was recently approved [in] Clark[.]” As 17 discussed above, Clark held that funds distributed to a shareholder constitute gross 18 income unless they are used to “offset the payment [of] income taxes resulting from 19 any K-1 allocations.” 2014-NMCA-030, ¶ 12. While Clark justifies certain 31 1 modifications to Respondent’s gross income, we question the degree to which the 2 district court may have done so. Petitioner’s Exhibit One provides various financial 3 data, including: “Respondent’s Cash Received [From All Sources],” “ Total Taxes 4 Paid,” and “After Tax Cash Income.” Petitioner’s Exhibit One differentiates between 5 income received from Respondent’s shareholder interests in Summit Electric and Jury 6 & Associates and from salary. Petitioner’s Exhibit One does not, however, 7 differentiate between taxes paid on shareholder income and salary income. This 8 differentiation is important given the distinction drawn above between the treatment 9 of pass-through income used for payment of income taxes under Clark and the 10 treatment of traditional W-2 earnings. For example, Petitioner’s Exhibit One provides 11 the following data for 2011: $4,219,841 of cash received from all sources; $1,434,478 12 of total taxes paid; and $2,785,363 of after tax cash income. Respondent’s “After Tax 13 Cash Income” results from subtracting $1,434,478 from $4,219,841. However, even 14 applying Clark, this calculation incorrectly applies Section 40-4-11.1(K). “Cash 15 Received [From All Sources]” details Respondent’s 2011 earnings: $2,610,309 from 16 his ownership interest in Summit Electric; $262,929 from his ownership interest in 17 Jury & Associates; $1,014,055 from salary; and $332,548 from other income. The 18 taxes paid on these four amounts are then blended together as “Total Taxes Paid.” 19 This calculation improperly combines income taxes paid on Respondent’s income 32 1 from his ownership interests in Summit Electric and Jury & Associates with income 2 taxes paid on his income received as salary and other income. In short, any taxes paid 3 that are attributable to Respondent’s salary and other income must be incorporated 4 into gross income. 5 2. Multi-Year Averaging (Respondent) 6 Section 40-4-11.1(K) requires that gross income be calculated based on {50} 7 “current income if steady[,]” or, if not steady, by reference to “last year’s income tax 8 return.” As discussed above, other jurisdictions allow multi-year averaging in cases 9 in which the obligor’s income fluctuates. However, we are aware of no other 10 jurisdiction that permits the use of a ten-year average in calculating current income. 11 See Zimin, 837 P.2d at 123 (stating “a ten-year average is generally not a reliable 12 indicator of an obligor parent’s current earning capacity”). In the present case, after 13 stating that it did not have “the numbers for 2013” or “for 2012,” the district court 14 used a ten-year average to calculate Respondent’s gross income, arriving at a total of 15 $813,463 per year for 2011. Unfortunately, we are unable to recreate the district 16 court’s calculation using Petitioner’s Exhibit One. Our ten-year average for the years 17 2002-2011 results in after tax cash income for Respondent of $976,155—a difference 18 of more than $160,000 from the district court’s total of $813,463. This disparity 19 emphasizes the rationale behind requiring the district court to explain deviations from 33 1 the child support guidelines in writing. See Tedford, 1998-NMCA-067, ¶¶ 32-33 2 (describing the failure to “clearly indicate” how it determined the child support award 3 as error). Because we do not have the benefit of briefing on the topic, we decline to 4 expressly decide whether and to what extent multi-year averaging is allowable when 5 calculating a party’s gross income for purposes of determining child support 6 obligations. Absent such a decision, Respondent’s actual gross income for 2011 7 remains unclear. As such, on remand, the district court shall, in light of this opinion 8 and other persuasive sources, make such a determination and clearly indicate in its 9 order the exact calculations used in determining the parties’ gross incomes. 10 3. Current Income (Petitioner) 11 Section 40-4-11.1(C)(1) defines “income” as “actual gross income of a parent {51} 12 if employed to full capacity or potential income if unemployed or underemployed.” 13 This subsection empowers district courts to impute income as needed in order to 14 accurately derive the parties’ gross monthly incomes. See State ex rel. Human Servs. 15 Dep’t v. Kelley, 2003-NMCA-050, ¶ 13, 133 N.M. 510, 64 P.3d 537 (“The child 16 support guidelines require the imputation of income to an unemployed or 17 underemployed parent to the level of employment at full capacity.”). In 2010, the 18 district court estimated Petitioner’s earning capacity to be $4,000 per month and 19 continued to impute that amount in the present case. However, the record evidence 34 1 includes Petitioner’s 2011 tax returns. In 2011, Petitioner reported an adjusted gross 2 income of $109,089 on her federal tax returns. Dividing $109,089 by twelve provides 3 a more accurate gross monthly income for Petitioner than the amount imputed for the 4 2010 decree. We can discern no reason for the continued imputation of income when 5 evidence of actual gross income has been provided. Because the district court 6 calculated Respondent’s gross annual income through 2011, Petitioner’s 2011 tax 7 return is the most appropriate source from which to determine Petitioner’s gross 8 income. See Boutz, 1999-NMCA-131, ¶ 10 (holding that the district court must, to the 9 degree possible, calculate the parties’ gross incomes during the same time period). 10 D. Inequities as Between the Parties 11 Because we do not have the benefit of a Rule 11-706 expert on appeal, we are {52} 12 unable to determine to any degree of certainty the extent to which recalculation of the 13 parties’ gross monthly incomes will affect Respondent’s child support obligation. 14 While $10,707 appears to be an appropriate basic child support amount, the district 15 court could reconsider that amount on remand. Nevertheless, because the parties’ 16 gross monthly incomes and the percentage of combined income are non-discretionary 17 determinations, we provide the following model to demonstrate the potential inequity 18 that results from an incorrect calculation of gross income. 35 1 {53} The 2010 decree, which applies Petitioner’s gross annual income of $168,000 2 and Respondent’s annual after-tax cash income of $750,000, operates as follows: 3 Part 1 Basic Support Mother Father Combined 4 1. Gross Monthly Income $14,000 $52,500 $66,500 5 2. 6 Percentage of Combined Income 21% 79% 100% 7 3. Number of Children 8 4. Basic Support from Table $10,707 9 5. 10 Shared Custody Basic Obligation $16,060 11 6. Each Parent’s Share 12 7. 13 2 $3,373 $12,688 Number of 24 Hour Periods with Each Parent 201 164 365 14 8. Percentage with Each Parent 55% 45% 100% 15 9. Amount Retained $1,855 $5,710 16 10. Each Parent’s Obligation $1,518 $6,978 17 11. Amount Transferred $5,460 18 Part 2 Additional Monthly Payments 19 12. Children’s Health and Dental $300 20 13. Work-Related Child Care (NA) 21 14. Additional Expenses (Tuition) 22 Petitioner’s Contribution (21%) 23 24 Respondent’s Actual (Transferred) Obligation $2,500 $588 $4,872 36 1 {54} If we recalculate for 2011 assuming that (1) $10,707 remains the basic child 2 support amount, (2) Respondent’s gross income is calculated using a post-tax three3 year average for the years 2009, 2010, and 2011, which results in a total of 4 $1,344,139,4 and (3) Petitioner’s gross income of $109,089 is determined using her 5 2011 tax returns, the impact on Respondent’s child support obligation is as follows: 6 Part 1 Basic Support Mother Father $9,090 $112,110 8% Combined 7 1. Gross Monthly Income $121,101 8 9 2. Percentage of Combined Income 92% 10 3. Number of Children 11 12 4. Basic Support from Table (static) $10,707 13 14 5. Shared Custody Basic Obligation $16,060 15 6. Each Parent’s Share 16 17 7. 18 2 $1,284 $14,775 Number of 24 Hour Periods with Each Parent 201 164 365 8. Percentage with Each Parent 55% 45% 100% 19 9. Amount Retained $706 $6,648 20 10. Each Parent’s Obligation $578 $8,127 21 11. Amount Transferred $7,549 4 22 The actual three-year average of $1,464,139 is reduced by $120,000 to account 23 for spousal support paid by Respondent. It is not increased in consideration of the 24 district court’s deduction of taxes paid on W-2 earnings as discussed above. 37 1 Part 2 Additional Monthly Payments 2 12. Children’s Health and Dental $300 3 13. Work-Related Child Care (NA) 4 14. Additional Expenses (Tuition) $2,500 5 Petitioner’s Contribution (8%) 6 7 Respondent’s Actual (Transferred) Obligation $224 $7,325 8 The $7,549 basic amount transferred represents a thirty-eight percent increase over 9 Respondent’s basic amount transferred of $5,460 in the 2010 decree. The $7,325 10 actual obligation represents a fifty percent increase over Respondent’s total amount 11 transferred of $4,872 in the 2010 decree. Such increases result in “a presumption of 12 material and substantial changes” as contemplated by Section 40-4-11.4(A). 13 {55} We understand that these numbers are, to a degree, hypothetical. However, we 14 believe that the impact on Petitioner’s percentage of combined monthly income, 15 which was twenty-one percent in the 2010 decree, requires consideration. This 16 percentage has an obvious effect on each party’s basic child support obligation. It 17 also figures into the additional payments and expenses portion of Worksheet B. The 18 2010 decree required Petitioner to pay twenty-one percent of the costs for the 19 children’s health and dental insurance and private school tuition. If Petitioner’s gross 20 monthly income actually amounts to approximately eight percent of the parties’ 38 1 combined gross monthly income, an order that results in Petitioner’s overpayment is 2 inequitable as between the parties. 3 {56} At oral argument before this Court, Respondent argued that inequities arising 4 from arguably incorrect percentages of combined income are mitigated by informal 5 understandings between the parties. As an example, Respondent implied that 6 increases in the children’s tuition have gone unaccounted for since entry of the 2010 7 decree. This may be the case. However, a motion to modify child support focuses on 8 the period between the previous adjudication and the filing of a motion to modify by 9 either party. Section 40-4-11.4(B)(1) contemplates “an annual exchange of financial 10 information . . . for the year preceding the request [to modify.]” Regardless of 11 practical, but non-judicially recognized or mandated alterations to the 2010 decree, 12 it is the terms of the 2010 decree that are at issue on remand. 13 {57} We recognize that the district court is empowered to deviate from the child 14 support guidelines as provided in Section 40-4-11.2. Because the parties’ combined 15 gross monthly income, by any measure, exceeds $30,000, the district court could 16 make gross income and percentage of combined income calculations exactly as 17 described above and then elect to reduce the basic child support amount as a matter 18 of discretion. However, when faced with a statutory presumption of material and 19 substantial changes in circumstances, the district court does not have discretion to 39 1 deny a motion to modify if doing so would perpetuate an objectively incorrect 2 determination of the parties’ percentage of combined income. 3 {58} On remand, if the district court’s recalculation of the parties’ gross monthly 4 incomes results in a deviation upward or downward of more than twenty percent such 5 that Petitioner is entitled to a statutory presumption of material and substantial 6 changes, the district court shall consider the recalculated percentage of combined 7 income attributable to Petitioner independent of other considerations. If continued 8 enforcement of the 2010 decree would result in inequity between the parties, the 2010 9 decree must be modified. 10 ATTORNEY FEES 11 {59} This Court reviews awards of attorney fees for abuse of discretion. Bustos v. 12 Bustos, 2000-NMCA-040, ¶ 24, 128 N.M. 842, 999 P.2d 1074. Rule 1-127 NMRA 13 governs the award of attorney fees in domestic relations cases and requires 14 consideration of the “disparity of the parties’ resources, prior settlement offers, the 15 total amount of fees and costs expended by each party, and the success on the merits.” 16 Weddington v. Weddington, 2004-NMCA-034, ¶ 27, 135 N.M. 198, 86 P.3d 623. No 17 single factor is dispositive. See id. ¶ 28 (holding that “disparity is only one factor to 18 be considered and disparity cannot support reversal where the other factors weigh in 19 favor of the award of attorney fees”). 40 1 {60} The district court concluded that Respondent was the prevailing party on the 2 merits and awarded attorney fees consistent with that conclusion in the amount of 3 $15,000. The district court additionally concluded that several of the issues raised in 4 Petitioner’s motion to modify lacked merit and awarded Respondent $750 in attorney 5 fees for the cost of defending. The district court’s finding that Respondent prevailed 6 on the merits, when viewed in conjunction with record evidence of settlement offers 7 made by Respondent, could support an award of attorney fees. However, our reversal 8 on the merits undermines the primary rationale underlying the district court’s 9 conclusion. The district court concluded that Respondent was the prevailing party 10 because “[Petitioner] did not get an increase in child support.” This issue is open on 11 remand. See Rabie v. Ogaki, 1993-NMCA-096, ¶ 18, 116 N.M. 143, 860 P.2d 785 12 (holding that “ordinarily the district court should reconsider an award of attorney’s 13 fees and expenses when the judgment is reversed and the matter remanded to that 14 court”). Therefore, we reverse the district court’s award of attorney fees in the 15 amounts of $15,000 and $750. The district court may reconsider the appropriateness 16 of awards of attorney fees to both parties, including appellate attorney fees, on 17 remand. 18 {61} The same analysis does not apply to the district court’s February 2, 2015 award 19 of attorney fees arising from Respondent’s post-judgment enforcement actions. On 41 1 September 30, 2014, the district court entered its judgment. Respondent thereafter 2 began efforts to enforce the awards of attorney fees in his favor. Rule 1-069(A) 3 provides that, “[u]pon request of the judgment creditor or a successor in interest, the 4 clerk shall issue a subpoena directing any person with knowledge that will aid in 5 enforcement of or execution on the judgment, including the judgment debtor, to 6 appear before the district court to respond to questions concerning that knowledge.” 7 Respondent filed notice to depose Petitioner in accordance with Rule 1-069 on 8 November 4, 2014. Petitioner did not appear for this scheduled deposition and filed 9 various motions seeking protection from deposition and other enforcement efforts. 10 Respondent filed responses to the motions as well as a motion to compel Petitioner’s 11 deposition. He also appeared in court to litigate these motions. Following a hearing 12 on the merits, the district court denied Petitioner’s motions and awarded Respondent 13 attorney fees in the amount of $1,500. 14 {62} Petitioner argues on appeal that the district court was divested of authority to 15 increase its award of attorney fees because the matter was pending on appeal. 16 Petitioner’s argument presents a question of subject matter jurisdiction, which we 17 review de novo. Weddington, 2004-NMCA-034, ¶ 13. Petitioner does not argue that 18 this award constituted an abuse of discretion by the district court. See State v. 19 Garnenez, 2015-NMCA-022, ¶ 15, 344 P.3d 1054 (“We will not address arguments 42 1 on appeal that were not raised in the brief in chief and have not been properly 2 developed for review.”). 3 {63} Generally speaking, the filing of notice of appeal by either party “divests the 4 district court of jurisdiction and transfers jurisdiction to the appellate court.” Murken 5 v. Solv-Ex Corp., 2006-NMCA-064, ¶ 9, 139 N.M. 625, 136 P.3d 1035. This rule is 6 not absolute. Id. The district court retains jurisdiction “to carry out or enforce the 7 judgment.” Id. (internal quotation marks and citation omitted). Rule 1-069 is solely 8 related to enforcement of a judgment and is collateral to the matters on appeal. See 9 State ex rel. Howell v. Montoya, 1965-NMSC-005, ¶ 11, 74 N.M. 743, 398 P.2d 263 10 (interpreting Rule 69 of the Federal Rules of Civil Procedure and holding that “a new 11 or independent action is not contemplated, but . . . the supplementary proceedings 12 authorized by [Rule 69] is only a continuation of the original case for the purpose of 13 discovery in aid of the enforcement of the judgment” (emphasis added)); see also 14 Kelly Inn No. 102 v. Kapnison, 1992-NMSC-005, ¶ 39, 113 N.M. 231, 824 P.2d 1033 15 (“[I]n collateral matters not involved in the appeal, . . . the trial court retains 16 jurisdiction.”). 17 {64} Because the district court had subject matter jurisdiction over the parties under 18 Rule 1-069, we affirm the February 2, 2015 attorney fee award of $1,500 to 19 Respondent. 43 1 CONCLUSION 2 {65} For the foregoing reasons, we reverse and remand to the district court. On 3 remand, the district court must use a figure for gross income consistent with the 4 evidence offered at trial, and the court must then enter each parties’ gross income into 5 the child support guidelines to determine whether there has been a deviation of more 6 than twenty percent. If not, the court still has to apply the factors in Spingola to 7 determine whether there has been a material and substantial change justifying 8 modification. If there is a deviation of more than twenty percent, the presumption 9 does apply, and the court should first consider whether the non-movant has rebutted 10 that presumption. Even if the presumption is rebutted, the district court must 11 independently consider whether the recalculated percentage of combined income 12 attributed to each party is inequitable such that modification is required. The district 13 court must enter findings and conclusions that transparently supply the court’s 14 underlying basis for its determination whether to grant or deny the motion to modify, 15 so that the parties are clear as to the manner in which the court evaluated the motion 16 to modify. 17 {66} IT IS SO ORDERED. 18 19 ________________________________ JAMES J. WECHSLER, Judge 44 1 WE CONCUR: 2 ________________________________ 3 JONATHAN B. SUTIN, Judge 4 ________________________________ 5 STEPHEN G. FRENCH, Judge 45

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