2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-19 - Enforcement of decree by attachment, garnishment, execution or contempt proceedings.

Nothing in Sections 40-4-12 through 40-4-19 NMSA 1978 shall prevent a person or persons entitled to benefits of any decree for alimony or support from enforcing the decree by attachment, garnishment, execution or contempt proceedings as is now provided by statute, except that the filing of an affidavit that the defendant has no property within the state subject to execution to satisfy the judgment shall not be a prerequisite to the issuance of a garnishment.

History: 1941 Comp., § 25-724, enacted by Laws 1947, ch. 16, § 9; 1953 Comp., § 22-7-21; Laws 1973, ch. 319, § 12; 1979, ch. 252, § 1.

Cross references. — For execution and foreclosure, see 39-4-1 to 39-4-16 NMSA 1978.

For attachment and garnishment, see 42-9-1 to 42-9-39 NMSA 1978.

Credit for lump sum payments. — An obligor spouse, whose children received a lump sum social security disability payment covering the period from the date of disability to the date of payment, may receive credit toward the support obligation for all of the period covered by the lump-sum payment. Romero v. Romero, 1984-NMCA-049, 101 N.M. 345, 682 P.2d 201.

Child support payments are final judgments when due. — Accrued and unpaid periodic child support installments mandated in a divorce decree are each considered final judgments on the date they become due. Britton v. Britton, 1983-NMSC-084, 100 N.M. 424, 671 P.2d 1135.

Support installments becoming due as absolute and vested right. — Where a decree is rendered for alimony and is made payable in future installments the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, unless by the law of the state in which a judgment for future alimony was rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive installments ordered by the decree to be paid. This principle has also been applied to child support. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Statute of limitations. — Because each monthly child support installment mandated in the final decree is a final judgment, the statute of limitations period found in 37-1-2 NMSA 1978 applies. Britton v. Britton, 1983-NMSC-084, 100 N.M. 424, 671 P.2d 1135.

Execution obtainable without reducing arrearages to judgment. — A creditor spouse may obtain a writ of execution based on a decree for child support without reducing the arrearages to judgment. Gonzalez v. Gonzalez, 1985-NMCA-071, 103 N.M. 157, 703 P.2d 934.

Inability to pay is a good defense in contempt proceeding for noncompliance with an in personam order to pay community debts, but the burden of proving the defense rests upon him who asserts it. Nelson v. Nelson, 1971-NMSC-027, 82 N.M. 324, 481 P.2d 403.

Court's discretion where counterclaim in form of contempt action. — In a suit for a money judgment very little discretion is allowed, the court merely examining the validity of the prior judgment and entering a money judgment, but since the wife counterclaimed against the husband in his change of custody action in the form of a contempt action, as opposed to seeking a money judgment for arrearages, her action invoked the equitable powers of the court in which the trial court has discretion to fashion an installment payment plan of the husband's debt of child support and alimony arrearages. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Person subject to pay dischargeable debt not subject to contempt power. — A person subject to an in personam order to pay a dischargeable debt is not subject to the trial court's contempt power, for to hold otherwise would circumvent the policy behind allowing bankruptcies. Sosaya v. Sosaya, 1977-NMSC-001, 89 N.M. 769, 558 P.2d 38.

Imprisonment for failure to pay alimony or child support rests with the discretion of the trial court, which should use the power of contempt cautiously and sparingly, and the least possible power adequate to compel compliance with the court's order is its proper exercise. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Court obliged to give full force and effect to accrued support. — Since New Mexico gives Missouri divorce decrees full faith and credit, the trial court was obliged to give full force and effect to accrued alimony and child support due under a Missouri decree. The Missouri court granting the divorce had no power to modify accrued alimony and child support, and therefore, the district court in New Mexico had no such power either. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Law reviews. — For comment on Hill v. Matthews, 76 N.M. 474, 416 P.2d 144 (1966), see 7 Nat. Resources J. 129 (1967).

For article, "Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceedings," see 14 N.M.L. Rev. 275 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation §§ 860 to 928.

Husband's default, contempt or other misconduct as affecting modification of decree for support, 6 A.L.R.2d 835.

Allowance in state of decedent's domicile for children's support as enforceable against decedent's real estate, or proceeds thereof in other state, 13 A.L.R.2d 973.

Maintenance of suit by child, independently of statute, against parent for support, 13 A.L.R.2d 1142.

Reciprocal enforcement of duty to support dependents, construction and application of state statutes providing for, 42 A.L.R.2d 768.

Right to maintain action in another state for support and maintenance of defendant's child, parent, or dependent in plaintiff's institution, 67 A.L.R.2d 771.

Husband's death as affecting periodic payment provision of separation agreement, 5 A.L.R.4th 1153.

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

Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.

United States Postal Service as subject to garnishment, 38 A.L.R. Fed. 546.

Construction and application of 42 USCS § 659(a) authorizing garnishment against United States or District of Columbia for enforcement of child support and alimony obligations, 44 A.L.R. Fed. 494.