2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-11 - Determination of award of child support; disregard of welfare payments; notice to withhold income.

In any proceeding before a court in which the court has the duty or authority to determine liability of a parent for the support of minor children or the amount of that support, the court:

A. shall make a specific determination and finding of the amount of support to be paid by a parent to provide properly for the care, maintenance and education of the minor children, considering the financial resources of the parent;

B. shall not consider present or future welfare financial assistance payments to or on behalf of the children in making its determination under Subsection A of this section; and

C. for good cause may order the parent liable for support of a minor child to assign to the person or public office entitled to receive the child support that portion of the parent's periodic income or other periodic entitlements to money. The assignment of that portion of the parent's periodic income or other periodic entitlements to money may be ordered by the court by the issuance of a notice to withhold income against the income of the parent. The procedures for the issuance of the notice to withhold income, the content of the notice to withhold income, the duties of the parent liable for child support and the duties of the employer responsible for withholding income shall be the same as provided for in the Support Enforcement Act [40-4A-1 to 40-4A-20 NMSA 1978], except that delinquency in payment under an order for support need not be a pre-existing condition to effectuate the procedures of the Support Enforcement Act for purpose of withholding income under this section.

History: 1978 Comp., § 40-4-11, enacted by Laws 1988, ch. 87, § 3.

Repeals and reenactments. — Laws 1988, ch. 87, § 3 repealed former 40-4-11 NMSA 1978, as amended by Laws 1987, ch. 340, § 1, and enacted a new section, effective March 8, 1988.

Cross references. — For the Parental Responsibility Act, see 40-5A-1 NMSA 1978 et seq.

Compiler's notes. — Laws 1988, ch. 87, § 1 amended 40-4-11 NMSA 1978 as amended by Laws 1987, ch. 340, § 1, and Laws 1988, ch. 87, § 3 repealed and reenacted the same section, both effective March 8, 1988. Pursuant to instructions of the New Mexico compilation commission, both versions of the section have been set out. The notes below are applicable to both versions of this section.

In Leeder v. Leeder, 118 N.M. 603, 884 P.2d 494 (Ct. App. 1994), the court discussed the interpretation of these two sections and concluded that reading the second version of this section, Subsection A of 40-4-11.1 and 40-4-11.2 NMSA 1978 together, the guidelines are presumed to provide the proper amount of child support and that the second version of this section is ordinarily satisfied if the court sets forth the computations made under the guidelines. The second version of this section requires additional findings only when the children's needs for care, maintenance, and education, in light of the parents' financial resources, justify a departure from the guidelines. Although under this interpretation there is substantial overlap in what is required by Subsection A of the second version of this section, Subsection A of 40-4-11.1 and 40-4-11.2 NMSA 1978, there is no way to avoid the overlap without distorting the meaning of the statutory language for no discernible purpose. Statutes which relate to the same subject matter should, if possible, be construed to give effect to every provision of each.

Recreational expenses. — The requirement for including recreational expenses is implicit in the statutory provision governing joint custody. Section 40-4-9.1(J)(4)(e) NMSA 1978 states that when joint custody is awarded, "whatever recreational activities the child participated in during the marriage should continue with the child's agreement, regardless of which of the parents has physical custody." This provision represents a legislative recognition of the importance of recreational activities to children. But the importance of an activity is not in itself a reason for separate inclusion of the expense for that activity in the child support guidelines. All ordinary expenses are presumably taken into consideration in establishing the guidelines for basic child support. The child support awarded under the guidelines should be adequate to feed and shelter the children, and to provide for recreational activities. Rosen v. Lantis, 1997-NMCA-033, 123 N.M. 231, 938 P.2d 729.

Provisions of section are mandatory and require that evidence of the father's current financial resources be fully considered by the court and a finding be made based on that evidence. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958; Blake v. Blake, 1985-NMCA-009, 102 N.M. 354, 695 P.2d 838.

Finding required as to proper amount payable, or basis for denial. — When an issue is directly raised involving a demand for payment of child support, it is error to refuse to adopt a finding as to the amount of child support properly payable from the noncustodial parent to the custodial parent, or to refuse to adopt a finding indicating the basis for denial of the request for child support. DeTevis v. Aragon, 1986-NMCA-105, 104 N.M. 793, 727 P.2d 558.

Total financial resources of both parents considered. — In providing for the welfare of a child of divorced parents the trial court should consider the total financial resources of both parents, including their monetary obligations, income and net worth. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Effect of number of children. — Although the number of children involved is a factor for consideration in the amount of a child support award, experience indicates that the support level for one child must be considerably higher than that necessary for the additional children. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Children's ages considered. — In determining amounts of child support payments, the court must look at the ages, physical condition and health of the parents and the children. It must consider whether the children have advanced into an age bracket where the expenses of caring for and maintaining them are substantially greater. Likewise the attainment of majority by a child will affect the amount of support to be paid. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Educational needs considered. — One of the paramount concerns of the courts in child support cases is that a high level of education and training be afforded children, and the finest education that the parents can reasonably afford should be the criterion. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Additional advantages to children above their actual needs. — Where the income, surrounding financial circumstances and station in life of the father demonstrate an ability on his part to furnish additional advantages to his children above their actual needs, the trial court should provide such advantages within reason. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Specific findings by the court. — The child support guidelines are presumed to provide the proper amount of child support and Subsection A is ordinarily satisfied if the court sets forth the computations made under the guidelines. Additional findings are required only when the children's needs for care, maintenance, and education, in light of the parents' financial resources, justify a departure from the guidelines. Leeder v. Leeder, 1994-NMCA-105, 118 N.M. 603, 884 P.2d 494.

Undivided support award directed at more than one child is presumed to continue in force for the full amount until the youngest child reaches majority. Britton v. Britton, 1983-NMSC-084, 100 N.M. 424, 671 P.2d 1135.

Court may not on own motion reduce support. — Where there is no evidence before the trial court as to the salaries or financial resources of the husband or the wife in an action to collect delinquent child support, the court may not on its own motion reduce the support payments. Pitcher v. Pitcher, 1978-NMSC-029, 91 N.M. 504, 576 P.2d 1135.

Principal issue on request for increased child support is whether husband's circumstances have so changed as to warrant the increase requested. In order to determine whether such a change has occurred, it is necessary to examine into and consider his prior circumstances. Horcasitas v. House, 1965-NMSC-074, 75 N.M. 317, 404 P.2d 140.

Trial court erred in refusing to consider community earnings of husband's new wife in determining whether the husband's child support obligations should be increased. DeTevis v. Aragon, 1986-NMCA-105, 104 N.M. 793, 727 P.2d 558.

Biological father cannot relinquish duties. — In the absence of a formal adoption under the Adoption Act, the biological father cannot voluntarily effect a relinquishment of his parental obligation to pay child support. Poncho v. Bowdoin, 2006-NMCA-013, 138 N.M. 857, 126 P.3d 1221.

Equitable adoption. — Doctrine of equitable adoption cannot be asserted by biological father to avoid payment of child support. Poncho v. Bowdoin, 2006-NMCA-013, 138 N.M. 857, 126 P.3d 1221.

Law reviews. — For article, "Child Support Enforcement: The New Mexico Experience," see 9 N.M.L. Rev. 25 (1978-79).

For note, "Guidelines for Modification of Child Support Awards: Spingola v. Spingola," see 9 N.M.L. Rev. 201 (1978-79).

For annual survey of domestic relations law in New Mexico, see 18 N.M.L. Rev. 371 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 59 Am. Jur. 2d Parent and Child §§ 41 to 74.

Parent's obligation to support adult child, 1 A.L.R.2d 910, 48 A.L.R.4th 919.

Support provisions of judicial decree or order as limit of father's liability for expenses of child, 7 A.L.R.2d 491.

Father's duty under divorce or separation decree to support child as affected by the latter's induction into military service, 20 A.L.R.2d 1414.

Contract to support, maintain, or educate a child as within provision of statute of frauds relating to contracts not to be performed within a year, 49 A.L.R.2d 1293.

Education as element in allowance for benefit of child in decree of divorce or separation, 56 A.L.R.2d 1207.

Marriage of minor child as terminating support provisions in divorce or similar decree, 58 A.L.R.2d 355.

Father's liability for support of child furnished after entry of decree of divorce not providing for support, 69 A.L.R.2d 203, 91 A.L.R.3d 530.

Opening or modification of divorce decree as to custody or support of child not provided for in the decree, 71 A.L.R.2d 1370.

Right of wife to allowance for expense money in action by or against husband, without divorce, for child custody, 82 A.L.R.2d 1088.

What law governs validity and enforceability of contract made for support of illegitimate child, 87 A.L.R.2d 1306.

Change in financial condition or needs of parents or children as ground for modification of decree for child support payments, 89 A.L.R.2d 7.

Violation of custody or visitation provision of agreement or decree as affecting child support payment provision, and vice versa, 95 A.L.R.2d 118.

Court's establishment of trust to secure alimony or child support in divorce proceedings, 3 A.L.R.3d 1170.

Statutory family allowance to minor children as affected by previous agreement or judgment for their support, 6 A.L.R.3d 1387.

Power of court which denied divorce, legal separation or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.

What voluntary acts of child, other than marriage or entry into military service, terminate parent's obligation to support, 32 A.L.R.3d 1055.

Income of child from other source as excusing parent's compliance with support provisions of divorce decree, 39 A.L.R.3d 1292.

Right to credit on accrued support payments for time child is in father's custody or for other voluntary expenditures, 47 A.L.R.3d 1031.

Retrospective increase in allowance for alimony, separate maintenance, or support, 52 A.L.R.3d 156.

Provision in divorce decree that one party obtain or maintain life insurance for benefit of child, 59 A.L.R.3d 9.

Liability of parent for support of child institutionalized by juvenile court, 59 A.L.R.3d 636.

Effect in subsequent proceedings of paternity findings or implications in divorce decree or in support or custody order made incidental, 78 A.L.R.3d 846.

Propriety of decree in proceeding between divorced parents to determine mother's duty to pay support for children in custody of father, 98 A.L.R.3d 1146.

Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child's college education, 99 A.L.R.3d 322.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree, 100 A.L.R.3d 1129.

Visitation rights of persons other than natural parents or grandparents, 1 A.L.R.4th 1270.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 A.L.R.4th 830.

Effect of remarriage of spouses to each other on child custody and support provisions of prior divorce decree, 26 A.L.R.4th 325.

Excessiveness or adequacy of money awarded as child support, 27 A.L.R.4th 864.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined, 27 A.L.R.4th 1038.

What constitutes "extraordinary" or similar medical or dental expenses for purposes of divorce decree requiring one parent to pay such expenses for child in custody of other parent, 39 A.L.R.4th 502.

Stepparent's postdivorce duty to support stepchild, 44 A.L.R.4th 520.

Postmajority disability as reviving parental duty to support child, 48 A.L.R.4th 919.

Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.

Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.

Divorce and separation: attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 A.L.R.4th 173.

Death of obligor parent as affecting decree for support of child, 14 A.L.R.5th 557.

Loss of income due to incarceration as affecting child support obligation, 27 A.L.R.5th 540.

What voluntary acts of child, other than marriage or entry into military service, terminate parent's obligation to support, 55 A.L.R.5th 557.

Application of child-support guidelines to cases of joint-, split-, or similar shared-custody arrangements, 57 A.L.R.5th 389.

Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.

Consideration of obligor's personal-injury recovery or settlement in fixing alimony or child support, 59 A.L.R.5th 489.

Right to credit on child support arrearages for time parties resided together after separation or divorce, 104 A.L.R.5th 605.

Validity, construction, and application of Child Support Recovery Act of 1992 (18 USCA § 228), 147 A.L.R. Fed. 1