Pacheco v. Pacheco
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 PATSY M. PACHECO, 3 Petitioner-Appellee, 4 v. NO. 34,646 5 WIL B. PACHECO, 6 Respondent-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Gerard J. Lavelle, District Judge 9 Loretta Lopez 10 Albuquerque, NM 11 for Appellee 12 Carter & Valle Law Firm, P.C. 13 Linda L. Ellison 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Chief Judge. 18 {1} Appellant, Wil Pacheco, appeals from the district court’s minute order 19 modifying spousal support, as well as from the district court’s memorandum order 1 awarding attorney fees to Appellee, Patsy Pacheco. This Court issued a calendar 2 notice proposing summary affirmance. Appellant has filed a memorandum in 3 opposition to this Court’s notice of proposed disposition, which we have duly 4 considered. Unpersuaded, we affirm. 5 {2} Appellant, originally ordered in 2009 to pay Appellee $2000 per month in 6 modifiable spousal support, moved in 2014 to terminate spousal support, or in the 7 alternative, to decrease the amount of spousal support he owed, on the basis of his 8 changed circumstances. [CN 2] Specifically, these changed circumstances included 9 the closure of his dental practice—and concomitant reduction in income—and his 10 deteriorating health. [CN 2] The district court, finding that Appellant met his burden 11 in showing a change in circumstances, and after taking testimony and evidence on the 12 respective parties’ budgets, reduced the amount of spousal support to $1200 per 13 month. [CN 2] 14 {3} On appeal, Appellant contends that the reduction in spousal support to $1200 15 per month constituted an abuse of discretion on the part of the district court. [CN 3; 16 DS 5-6] In our calendar notice, we noted that Appellant had not even attempted to 17 demonstrate that the district court’s reduction of his required spousal support from 18 $2000 to $1200 was “contrary to all reason.” [CN 4] Consequently, we proposed to 2 1 conclude that Appellant had not met his burden on appeal. [CN 4] See Corona v. 2 Corona, 2014-NMCA-071, ¶ 26, 329 P.3d 701 (“The appellate court presumes that 3 the district court is correct, and the burden is on the appellant to clearly demonstrate 4 that the district court erred.”). Appellant’s memorandum in opposition does not point 5 to any specific errors in fact or in law in our calendar notice. See Hennessy v. Duryea, 6 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly 7 held that, in summary calendar cases, the burden is on the party opposing the 8 proposed disposition to clearly point out errors in fact or law.”). 9 {4} Instead, in response to our suggestion that he had not—through the bare 10 recitation of facts tracking his proposed findings of fact—sufficiently attacked the 11 district court’s findings of fact [CN 4], Appellant now contends that the district court 12 erred in determining the amount of his income [MIO 3]. Specifically, Appellant states 13 that the district court abused its discretion in not deducting from his income an 14 automatic monthly $300 student loan payment for his “adult child.” [MIO 3] 15 However, Appellant does not provide any authority in support of his contention that 16 this decision was an abuse of discretion. Therefore, we are not convinced that the 17 district court erred with respect to this issue. See Curry v. Great Nw. Ins. Co., 2014- 3 1 NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an 2 argument, we may assume no such authority exists.”). 3 {5} We note that Appellant, in his memorandum in opposition, states that 4 “[b]riefing is where an appellant can set forth with specific detail how the [district] 5 [c]ourt’s findings were an abuse of discretion.” [MIO 3] To the extent that Appellant 6 is saving or holding back information bearing on the issues raised in his docketing 7 statement for use in his brief-in-chief, Appellant misapprehends this Court’s rules 8 regarding cases placed on the summary calendar. See Rule 2-210 NMRA (outlining 9 this Court’s calendaring procedure); see also State ex rel. State Highway & Transp. 10 Dep’t of N.M. v. City of Sunland Park, 2000-NMCA-044, ¶ 15, 129 N.M. 151, 3 P.3d 11 128 (noting that the docketing statement takes the place of full briefing when a case 12 is decided on the Court’s summary calendar), cert. denied, 2014-NMCERT-003, 324 13 P.3d 375. 14 {6} However, regardless of whether Appellant’s income was $5318 per month, as 15 found by the district court [CN 3], or $5018 per month, as alleged by Appellant [DS 16 4; MIO 3], Appellant has not met his burden in demonstrating error in the district 17 court’s decision to reduce the amount of spousal support by $800 per month. 18 “[M]erely identifying the existence of evidence which may have tended to support a 4 1 different outcome does not demonstrate an abuse of discretion.” Camino Real Envtl. 2 Ctr., Inc. v. N.M. Dep’t of the Env’t (In re Camino Real Envtl. Ctr., Inc.), 20103 NMCA-057, ¶ 23, 148 N.M. 776, 242 P.3d 343. This is especially true in light of the 4 fact that Appellant, in the context of his argument that the district court erred in 5 awarding attorney fees to Appellee, asserts not only that he prevailed in his motion 6 by having the spousal support reduced by $800 per month [MIO 4], but also that he 7 was “successful in obtaining the relief he requested[.]” [DS 8]. Therefore, we are not 8 convinced that the district court erred in reducing the spousal support agreement by 9 $800 per month. 10 {7} Appellant also continues to argue that the district court erred in awarding 11 attorney fees to Appellee. [MIO 3-4] In our calendar notice, we suggested that the 12 district court did not err, given its consideration of the four factors under Rule 1-127 13 NMRA, and especially based on its finding of a gross disparity in income between 14 Appellant and Appellee. [CN 6-7] Again, we note that Appellant’s memorandum in 15 opposition does not point to any specific errors in fact or in law in our calendar 16 notice. 17 {8} Instead, Appellant now contends that the district court abused its discretion by 18 imposing a burden on him to make a settlement offer, stating that the district court 5 1 “cited no authority” for its conclusion of law. [MIO 4] On appeal, however, the 2 reviewing court presumes that the district court is correct, and the burden is on the 3 appellant to clearly demonstrate that the district court is incorrect. See Corona, 20144 NMCA-071, ¶ 26. Appellant has provided no authority to support his contention that 5 the district court abused its discretion in its analysis of the Rule 1-127 settlement 6 offer factor. Where a party cites no authority to support an argument, we may assume 7 no such authority exists. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 8 676 P.2d 1329. Appellant has therefore not met his burden on this issue. 9 {9} Finally, Appellant contends that the district court “clearly brought in past 10 issues to bear on the [c]ourt’s perception of . . . Appellant” and that there were 11 “unwarranted extrapolations together with commentary on the record, that would 12 indicate this ruling appears to be a prejudgment on the issue of attorney fees.” [MIO 13 4] We note, however, that this argument was not raised in Appellant’s docketing 14 statement and Appellant did not move to amend the docketing statement to add this 15 issue. See Rule 12-208(F) NMRA (permitting the amendment of the docketing 16 statement based upon good cause shown); State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 17 100 N.M. 193, 668 P.2d 309 (setting out requirements for a successful motion to 18 amend the docketing statement). To the extent that we might construe the addition of 6 1 this argument as a motion to amend the docketing statement, Appellant has failed to 2 demonstrate—through his one sentence reference to prejudgment—that he meets the 3 requirements for granting a motion to amend. Therefore, we are not convinced that 4 we were incorrect in determining that the district court did not err in awarding 5 attorney fees to Appellee. 6 {10} For these reasons, and those in our calendar notice, we affirm. 7 {11} IT IS SO ORDERED. 8 9 _______________________________ MICHAEL E. VIGIL, Chief Judge 10 WE CONCUR: 11 _________________________________ 12 JAMES J. WECHSLER, Judge 13 _________________________________ 14 RODERICK T. KENNEDY, Judge 7
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