2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-7 - Proceedings; spousal support; support of children; division of property.

A. In any proceeding for the dissolution of marriage, division of property, disposition of children or spousal support, the court may make and enforce by attachment or otherwise an order to restrain the use or disposition of the property of either party or for the control of the children or to provide for the support of either party during the pendency of the proceeding, as in its discretion may seem just and proper. The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his case.

B. On final hearing, the court:

(1) may allow either party such a reasonable portion of the spouse's property or such a reasonable sum of money to be paid by either spouse either in a single sum or in installments, as spousal support as under the circumstances of the case may seem just and proper, including a court award of:

(a) rehabilitative spousal support that provides the receiving spouse with education, training, work experience or other forms of rehabilitation that increases the receiving spouse's ability to earn income and become self-supporting. The court may include a specific rehabilitation plan with its award of rehabilitative spousal support and may condition continuation of the support upon compliance with that plan;

(b) transitional spousal support to supplement the income of the receiving spouse for a limited period of time; provided that the period shall be clearly stated in the court's final order;

(c) spousal support for an indefinite duration;

(d) a single sum to be paid in one or more installments that specifies definite amounts, subject only to the death of the receiving spouse; or

(e) a single sum to be paid in one or more installments that specifies definite amounts, not subject to any contingencies, including the death of the receiving spouse;

(2) may:

(a) modify and change any order in respect to spousal support awarded pursuant to the provisions of Subparagraph (a), (b) or (c) of Paragraph (1) of this subsection whenever the circumstances render such change proper; or

(b) designate spousal support awarded pursuant to the provisions of Subparagraph (a) or (b) of Paragraph (1) of this subsection as nonmodifiable with respect to the amount or duration of the support payments;

(3) may set apart out of the property or income of the respective parties such portion for the maintenance and education of:

(a) their unemancipated minor children as may seem just and proper; or

(b) their children until the children's graduation from high school if the children are emancipated only by age, are under nineteen and are attending high school; and

(4) may make such an order for the guardianship, care, custody, maintenance and education of the minor children, or with reference to the control of the property of the respective parties to the proceeding, or with reference to the control of the property decreed or fund created by the court for the maintenance and education of the minor children, as may seem just and proper.

C. The court may order and enforce the payment of support for the maintenance and education after high school of emancipated children of the marriage pursuant to a written agreement between the parties.

D. An award of spousal support made pursuant to the provisions of Subparagraph (a), (b), (c) or (d) of Paragraph (1) of Subsection B of this section shall terminate upon the death of the receiving spouse, unless the court order of spousal support provides otherwise.

E. When making determinations concerning spousal support to be awarded pursuant to the provisions of Paragraph (1) or (2) of Subsection B of this section, the court shall consider:

(1) the age and health of and the means of support for the respective spouses;

(2) the current and future earnings and the earning capacity of the respective spouses;

(3) the good-faith efforts of the respective spouses to maintain employment or to become self-supporting;

(4) the reasonable needs of the respective spouses, including:

(a) the standard of living of the respective spouses during the term of the marriage;

(b) the maintenance of medical insurance for the respective spouses; and

(c) the appropriateness of life insurance, including its availability and cost, insuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying spouse to be in lieu of further support;

(5) the duration of the marriage;

(6) the amount of the property awarded or confirmed to the respective spouses;

(7) the type and nature of the respective spouses' assets; provided that potential proceeds from the sale of property by either spouse shall not be considered by the court, unless required by exceptional circumstances and the need to be fair to the parties;

(8) the type and nature of the respective spouses' liabilities;

(9) income produced by property owned by the respective spouses; and

(10) agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation.

F. The court shall retain jurisdiction over proceedings involving periodic spousal support payments when the parties have been married for twenty years or more prior to the dissolution of the marriage, unless the court order or decree specifically provides that no spousal support shall be awarded.

G. The court may modify and change any order or agreement merged into an order in respect to the guardianship, care, custody, maintenance or education of the children whenever circumstances render such change proper. The district court shall have exclusive jurisdiction of all matters pertaining to the guardianship, care, custody, maintenance and education of the children until the parents' obligation of support for their children terminates. The district court shall also have exclusive, continuing jurisdiction with reference to the property decreed or funds created for the children's maintenance and education.

History: Laws 1901, ch. 62, § 27; Code 1915, § 2778; C.S. 1929, § 68-506; 1941 Comp., § 25-706; Laws 1943, ch. 46, § 1; 1953 Comp., § 22-7-6; Laws 1973, ch. 319, § 7; 1993, ch. 144, § 1; 1997, ch. 56, § 1.

Cross references. — For provisions pertaining to a supervised visitation program, see 40-12-5.1 NMSA 1978.

For determination of award of child support, see 40-4-11 NMSA 1978.

For mandatory Medical Support Act, see 40-4C-1 to 40-4C-14 NMSA 1978.

The 1997 amendment, effective June 20, 1997, added Subparagraphs B(3)(a) and B(3)(b) and made related stylistic changes; added Subsection C and redesignated former Subsections C through F as D through G; and in Subsection G, substituted "until the parents' obligation of support for their children terminates" for "so long as the children remain minors".

The 1993 amendment, effective July 1, 1993, in Subsection A, substituted "spousal support" for "alimony" in the first sentence; in Subsection B, rewrote Paragraphs (1) and (2); added present Subsections C through E, redesignating former Subsection C as Subsection F; in Subsection F, rewrote the second sentence as the present third and fourth sentences and deleted the former third sentence, which concerned the disposition of funds remaining when the children reach the age of majority; and made stylistic changes in the second sentence of subsection A and in Paragraph (3) of Subsection B.

I. GENERAL CONSIDERATION.

Inherent powers of court. — A New Mexico district court has the power to sanction a parent for misconduct that occurred before a South Dakota court where the parent pursued an action in the South Dakota court in an attempt to improperly gain custody of a child, while concealing the New Mexico proceedings from the South Dakota court and for wilful disobedience of a court order for failing to return the child after the South Dakota visitation, as mediated by the parties under an order of the New Mexico district court. Seipert v. Johnson, 2003-NMCA-119, 134 N.M. 394, 77 P.3d 298, cert. denied, 2003-NMCERT-009, 134 N.M. 374, 77 P.3d 278.

Construing divorce decrees. — Divorce decrees are to be construed as other written instruments. A district court determination that a written instrument is unambiguous as a matter of law is therefore not binding on the appellate court which may consider the legal effect of the document itself. Schueller v. Schueller, 1994-NMCA-014, 117 N.M. 197, 870 P.2d 159.

This section does not apply to annulment actions. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.

This section has no reference to actions to annul an invalid marriage. Prince v. Freeman, 1941-NMSC-006, 45 N.M. 143, 112 P.2d 821.

This section does not apply to a nonmodifiable lump sum alimony agreement. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.

Conflict between decree and statute. — Where there is a conflict between provisions of the divorce decree and a statute of the state of New Mexico, the statute is controlling. Scanlon v. Scanlon, 1955-NMSC-035, 60 N.M. 43, 287 P.2d 238.

"Either party" as used in Subsection A of this section can logically only refer to the parties to the underlying domestic relations proceeding, that is, husband and wife. Garcia v. Jeantette, 2004-NMCA-004, 134 N.M. 776, 82 P.3d 947.

Exclusive jurisdiction not indefinite jurisdiction. — A court acquires exclusive jurisdiction over the property involved for purposes of a division of the property, or a modification of the decree as to payments for alimony, maintenance and education of the minor children, but this does not mean that such court may retain such jurisdiction indefinitely or that another court of concurrent jurisdiction may not acquire jurisdiction over the property at a time when the proceeding is apparently settled. Ortiz v. Gonzales, 1958-NMSC-109, 64 N.M. 445, 329 P.2d 1027.

Finality of judgment not destroyed by reservation of continuing jurisdiction. — A reservation of continuing jurisdiction by the trial court in divorce proceedings does not destroy the finality of a final judgment, once the judgment is entered. Like any other final award or decision, they are subject to attack only upon a showing of relief provided for under Rules 59 and 60(b), N.M.R. Civ. P. (now 1-059 and 1-060 NMRA). Smith v. Smith, 1982-NMSC-088, 98 N.M. 468, 649 P.2d 1381.

Doctrine of res judicata does not preclude decision from first court. — Where the New Mexico district court entered its final decree and custody award on April 10, more than a week before the Colorado district court entered its decision that the former court lacked jurisdiction, the New Mexico district court could not be precluded by the doctrine of res judicata from entering a decision in the matter. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.

Jurisdiction of federal courts in bankruptcy proceedings. — Although the Bankruptcy Act of 1978 greatly expanded the jurisdiction of federal courts, jurisdiction over such matters as marriage, divorce, child custody, alimony and child support, remains in state courts. Dirks v. Dirks, 15 Bankr. 775 (Bankr. D.N.M. 1981).

Despite the fact that federal courts do not have jurisdiction to determine domestic relations matters, congress did intend that the bankruptcy courts should be able to determine whether characterizations of alimony or support made by state courts meet the meaning of such terms as they arise in the bankruptcy context. Dirks v. Dirks, 15 Bankr. 775 (Bankr. D.N.M. 1981).

Alimony, child support and maintenance nondischargeable in bankruptcy. — Amounts due a former spouse of the debtor constituting alimony, child support or maintenance are nondischargeable debts so long as such sums are payable directly to the former spouse and actually represent alimony, child support or maintenance. Lekvold v. Henderson, 18 Bankr. 663 (Bankr. D.N.M. 1982).

If decree is clear and unambiguous, neither pleadings, findings nor matters dehors the record may be used to change its meaning or even to construe it. Chavez v. Chavez, 1971-NMSC-062, 82 N.M. 624, 485 P.2d 735.

Modification of divorce decree is not required except upon a showing of material change of circumstances, but upon a showing of such change of circumstances or new facts it may be done. Tuttle v. Tuttle, 1959-NMSC-063, 66 N.M. 134, 343 P.2d 838.

Attempt to convert divorce suit into action for debt unauthorized. — The attempt of an attorney to convert a divorce suit into an action by him against the wife for debt was wholly unauthorized, and the resulting judgment rendered against her is void. Lloyd v. Lloyd, 1956-NMSC-007, 60 N.M. 441, 292 P.2d 121.

Trial court may order the husband in a divorce action to make a suitable allowance to the wife to the end her case may be adequately presented, but this does not give her attorney the right to recover a judgment against the husband in an independent action. Lloyd v. Lloyd, 1956-NMSC-007, 60 N.M. 441, 292 P.2d 121.

Language of section became part of agreement and decree. — The language from this section as it existed at the time the separation agreement was made became a part of the agreement when it became a part of the decree of divorce, even though the parties may not have had knowledge of the existence of the statute. Scanlon v. Scanlon, 1955-NMSC-035, 60 N.M. 43, 287 P.2d 238.

No presumption that separation agreements fraudulent. — While it is true that if a fiduciary relationship is shown and that as a result of confidence reposed by the one, dominion and influence resulting from such confidence can be exercised by the other, fraud and undue influence may be presumed to exist when an advantage is gained by the dominant party at the expense of the confiding party; nevertheless, the modern trend holds that when a husband and wife have separated or are about to separate and seek by agreement to settle their respective rights and obligations, they deal at arm's length. There is no presumption that separation agreements are fraudulent, and that one who asserts the invalidity of such agreement has the burden of proving that it is tainted by fraud, duress or overreaching. Unser v. Unser, 1974-NMSC-063, 86 N.M. 648, 526 P.2d 790.

Separation agreement subject to change by court. — A separation agreement in New Mexico, though binding upon the parties during such time as they are separated as husband and wife, when submitted in a divorce case for consideration of the court, is subject to such action as the court in its discretion may take, and the court may disregard any previous agreement for support and make such award as in the discretion of the court may seem just and fair. Scanlon v. Scanlon, 1955-NMSC-035, 60 N.M. 43, 287 P.2d 238.

Authority to modify child custody or support order. — Trial courts, in proceedings for dissolution of a marriage, have the power and authority to execute, modify or vacate any order involving the guardianship, care, custody, maintenance and education of minor children. Rhinehart v. Nowlin, 1990-NMCA-136, 111 N.M. 319, 805 P.2d 88.

Court had discretion to fashion installment payment plan. — In a contempt counterclaim by the wife, the trial court had the 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.

Judgment final despite continuing jurisdiction of court. — The court's reservation of continuing jurisdiction over the parties to modify such matters as alimony, support or custody does not destroy the finality of a judgment. Thornton v. Gamble, 1984-NMCA-093, 101 N.M. 764, 688 P.2d 1268.

Awarding of alimony or child support rests within sound discretion of court. Muckleroy v. Muckleroy, 1972-NMSC-051, 84 N.M. 14, 498 P.2d 1357; Hurley v. Hurley, 1980-NMSC-067, 94 N.M. 641, 615 P.2d 256.

The decision to grant or deny alimony is within the sound discretion of the trial court, and its decision will be altered only upon a showing of an abuse of that discretion. Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133, 637 P.2d 564.

Power to grant alimony and attorney fees. — District court has jurisdiction and power to grant the wife temporary allowance and solicitors' fees, and to enforce payment of them against the husband or his property in the absence of sufficient separate estate belonging to the wife, or to charge them against any common property belonging to both husband and wife, whether such property is in the control of the husband or wife; and where the wife has ample estate of her own she may charge it with necessary solicitors' fees to enable her to prosecute or defend a divorce action to which she is a party, which the court will allow when they are necessary and reasonable. Lamy v. Catron, 1890-NMSC-003, 5 N.M. 373, 23 P. 773 (decided under former law).

Adjustment of property division on remand. — Where, although the wife requested alimony, the trial court found she had failed to show need, and that finding was not challenged on appeal, on remand, the court in its discretion was limited to reconsidering the fairness and equity of the balance of the property division, and making whatever adjustments were necessary to achieve a fair and equitable division and disposition of the parties' property and other interests. Bayer v. Bayer, 1990-NMCA-106, 110 N.M. 782, 800 P.2d 216.

Supreme court has inherent power to make allowance of counsel's fees on appeal of $750 to wife, taxed as costs to defendant-husband, when on appeal the court finds an error in the judgment of the trial court in a suit brought by wife to divide property. Jones v. Jones, 1960-NMSC-106, 67 N.M. 415, 356 P.2d 231.

An award of attorney's fees was appropriate. — Award of $2,500 in attorney fees to petitioner was warranted on appeal. Rhinehart v. Nowlin, 1990-NMCA-136, 111 N.M. 319, 805 P.2d 88.

Evidence of economic disparity. — The evidence of economic disparity between husband and wife supported the trial court's award of $20,000 in attorney's fees to the wife. Monsanto v. Monsanto, 1995-NMCA-048, 119 N.M. 678, 894 P.2d 1034.

An award of attorney's fees to the mother was appropriate since the trial court considered the economic disparity between the parties, and considered the father's financial circumstances in reaching its findings regarding his gross monthly income and in allowing him to make installment payments on the award. Alverson v. Harris, 1997-NMCA-024, 123 N.M. 153, 935 P.2d 1165.

An award of attorneys' fees was inappropriate since the matter of attorneys' fees had been covered by the original decree, and the present effort to set aside that decree on ill-founded grounds had been unsuccessful. Unser v. Unser, 1974-NMSC-063, 86 N.M. 648, 526 P.2d 790.

Judgment for attorney's fees, costs and travel expenses was a personal judgment against the husband, and in order to enter such a judgment the trial court must have had personal jurisdiction over the husband for that purpose. Since none of these items are included in the long-arm statute by virtue of which the court had jurisdiction over the nonresident husband to decree a divorce on the issue of custody jurisdiction, the judgment as to attorney's fees, costs and travel expenses was beyond the jurisdiction of the court and was null and void in that respect. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.

Excessive attorneys' fees. — In a contested divorce action in which more than one full day was spent in trying the case, which necessitated considerable preparation by appellee's counsel, the court does not feel that an award of $500 for attorneys' fees is so excessive as to require reversal as being an abuse of discretion by the trial court. Moore v. Moore, 1963-NMSC-047, 71 N.M. 495, 379 P.2d 784.

A fee fixed by trial court is a finding not to be disturbed unless patently erroneous as reflecting an abuse of discretion; the reasons which would call for a disturbance of the amount so fixed by a trial court must be very persuasive since the trial court which fixes the fee supposedly has a superior knowledge of the actual services rendered and the charges usually prevailing in the particular locality for such services. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Since fees may be allowed by court husband not liable in independent suit. — Where counsel and suit fees may be allowed by court, the husband is not liable in an independent suit by the wife's attorney for necessary disbursements in the case. LaFollette v. Romero, 1931-NMSC-037, 35 N.M. 509, 2 P.2d 310.

Section broad enough to authorize order to pay appeal costs. — Where decree of divorce has been granted a husband, and the wife appeals, the husband's appeal from an order requiring him to pay the costs of her appeal will be denied, this section being sufficiently broad to authorize such order. Oldham v. Oldham, 1922-NMSC-050, 28 N.M. 163, 208 P. 886, aff'd, 1923-NMSC-064, 28 N.M. 619, 216 P. 497.

Attorney fees at appellate level. — Where husband appeals from a judgment concerning alimony award and where court finds a need for the wife to receive assistance with her lawyer's fees at the appellate level, this section is applicable to provide for an award for attorney's fees incurred on appeal. Miller v. Miller, 1981-NMSC-078, 96 N.M. 497, 632 P.2d 732.

Award reversed absent findings to support it. — Award of costs to father in the amount of $3,000 was reversed, where there were no findings on the factors necessary to support the award. Newhouse v. Chavez, 1988-NMCA-110, 108 N.M. 319, 772 P.2d 353, cert. denied, 108 N.M. 197, 769 P.2d 731 (1989).

Considerations in awarding attorney fees. — While the award of attorney fees to one spouse is discretionary, the trial court should consider the relative financial status of the parties and the ability of the parties to employ and pay counsel. Foutz v. Foutz, 1990-NMCA-093, 110 N.M. 642, 798 P.2d 592.

When denying award is error. — Where a party lacks sufficient funds to pay attorney fees for representation incident to dissolution of marriage or rights incident thereto, and the financial situation of the parties is disparate, it is error to deny an award of reasonable attorney's fees. Sheets v. Sheets, 1987-NMCA-128, 106 N.M. 451, 744 P.2d 924.

II. DIVISION OF PROPERTY.

A. IN GENERAL.

Stock options. — Unvested stock options that provided a spouse with a valuable right in a contingent benefit were community property. Garcia v. Mayer, 1996-NMCA-61, 122 N.M. 57, 920 P.2d 522.

Irrevocable trust. — When an irrevocable trust is set up for the benefit of third parties and neither spouse is a trustee or has a beneficial interest, a trial court may not dispose of it, even if one or both of the spouses created or funded the trust. Vanderlugt v. Vanderlugt, 2018-NMCA-073.

Where husband, prior to his marriage to wife, created an irrevocable life insurance trust for the benefit of his children, and where neither spouse was a trustee or had a beneficial interest in the trust, the district court erred in determining that there was a community lien interest in the corpus of the irrevocable trust, because the trust was not owned or controlled by either spouse, husband was not able to access the assets of the trust, was not a beneficiary or a trustee and did not have a property interest in the trust, and wife was also not a beneficiary or a trustee and had no property interest in the trust. Vanderlugt v. Vanderlugt, 2018-NMCA-073.

The district court did not err in limiting discovery into business interests. — In dissolution of marriage proceedings, where husband claimed that the district court erred in restricting husband's discovery into wife's business interests, the district court did not abuse its discretion in limiting discovery where all relevant financial information was already produced by wife. Vanderlugt v. Vanderlugt, 2018-NMCA-073.

Expiration of statutory time. — A final decree of dissolution of marriage, which incorporates a property settlement agreement entered into by the parties, may not be modified under N.M.R. Civ.P. 60(b), NMSA 1978 (now Rule 1-060B NMRA) after the expiration of the statutory time for doing so. Wehrle v. Robison, 1979-NMSC-016, 92 N.M. 485, 590 P.2d 633.

Forfeiture unenforceable. — Where a marital settlement agreement provided that the marital residence was awarded to the petitioner, that the petitioner was required to pay the mortgage on the residence, that if the respondent cured the petitioner's failure to pay the mortgage, the respondent could take title to the residence, and that the petitioner had the right to redeem the residence by paying the delinquent amounts to the respondent within thirty days; the agreement did not contain any express language regarding the method of making the redemption payment; the parties had not established a pattern for making the redemption payment; the forfeiture clause did not expressly require actual receipt of the redemption payment by the last day of the redemption period and it did not prohibit payment by mail; the petitioner mailed the redemption payment to the respondent on the last day of the redemption period; the redemption payment was delivered to the respondent after the expiration of the redemption period; the marital residence constituted the major portion of the petitioner's share of the marital assets; there was no indication that the petitioner's failure to pay the mortgage caused the respondent to suffer any prejudice to the respondent's credit; and the parties contemplated that the petitioner would move out of New Mexico after the divorce, the agreement did not contain the clear and unequivocal language required before a forfeiture will be enforced and the mailing of the redemption payment on the last day of the redemption period to the respondent constituted a timely redemption payment. Cortez v. Cortez, 2009-NMSC-008, 145 N.M. 642, 203 P.3d 857, rev'g 2007-NMCA-154, 143 N.M. 66, 172 P.3d 615.

Payment by mail. — Depositing a check in the mail on the due date does not constitute payment on that date where the terms of the stipulated judgment did not authorize payment by mail and there was no course of dealing between the parties reflecting an agreement that depositing the payment in the mail constituted payment. Cortez v. Cortez, 2007-NMCA-154, 143 N.M. 66, 172 P.3d 615, cert. granted, 2007-NMCERT-011, rev'd, 2009-NMSC-008, 145 N.M. 642, 203 P.3d 857.

Standard of review. — The district court's decisions in making an equitable division of community property and debts are reviewed for abuses of discretion, but the threshold question of whether a particular asset is community property is a question of law to be reviewed de novo. Arnold v. Arnold, 2003-NMCA-114, 134 N.M. 381, 77 P.3d 285.

Jurisdiction over community personalty located on Indian reservation. — A district court has jurisdiction to determine the disposition of community personal property located on an Indian reservation when one of the parties is an Indian, but has submitted to the jurisdiction of the court to dissolve his marriage. Lonewolf v. Lonewolf, 1982-NMSC-152, 99 N.M. 300, 657 P.2d 627, appeal dismissed, 467 U.S. 1223, 104 S. Ct. 2672, 81 L. Ed. 2d 869 (1984).

Reviewing court indulges in all inferences in favor of successful party. — In determining whether trial court's findings of fact in dispute over division of property are supported by substantial evidence, reviewing court resolves all disputed facts and indulges in all reasonable inferences in favor of the successful party and disregards inferences to the contrary. Lahr v. Lahr, 1970-NMSC-165, 82 N.M. 223, 478 P.2d 551.

Court should consider tax consequences when deciding a property settlement upon dissolution of marriage. Cunningham v. Cunningham, 1981-NMSC-087, 96 N.M. 529, 632 P.2d 1167; Schueller v. Schueller, 1994-NMCA-014, 117 N.M. 197, 870 P.2d 159.

It is the duty of court to divide equally property of community. Michelson v. Michelson, 1974-NMSC-022, 86 N.M. 107, 520 P.2d 263; Fitzgerald v. Fitzgerald, 1962-NMSC-028, 70 N.M. 11, 369 P.2d 398; Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133, 637 P.2d 564.

Burden to show property was separate. — The burden was on appellant to show what portion of the property before the court resulted from his separate property. Krattiger v. Krattiger, 1969-NMSC-170, 81 N.M. 59, 463 P.2d 35.

Authority to apportion or set apart property. — This section does not authorize the court to apportion the community property between the spouses in its discretion, but authorized the court to set apart out of the property such portion of the property of the parties as may be required for the support, maintenance and education of the children, and to set apart such part of the husband's property as alimony as may be necessary for the support and maintenance of the wife. Beals v. Ares, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.

Award of property to wife. — In a divorce action, the court has the right to award to the wife a suitable portion of the common property of the community, or the separate property of the husband. Oberg v. Oberg, 1931-NMSC-051, 35 N.M. 601, 4 P.2d 918; Hodges v. Hodges, 1916-NMSC-064, 22 N.M. 192, 159 P. 1007.

Property takes status as community or separate at time and by manner of acquisition. — Property acquired in New Mexico takes its status as community or separate property at the time and by the manner of its acquisition; and if a part of the purchase money is later paid by other funds than those of the owner of the property, whether of the community or an individual spouse, the owner is indebted to the source of such funds in that amount, but such payment does not effect the title of the purchaser. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Wife's share of separate property. — The wife's rights to share in the husband's separate property invested in New Mexico, but which was accumulated from his earnings during their marriage while domiciled in a noncommunity property state, necessitates the characterization of the property as separate, to be made under the applicable laws of the noncommunity property state. Hughes v. Hughes, 1978-NMSC-002, 91 N.M. 339, 573 P.2d 1194.

Determining interest in property. — The general conflict of laws rule by which an interest in property takes its character at the time and in the manner of its acquisition has not been superseded by the Community Property Act. Blackwell v. Lurie, 2003-NMCA-082, 134 N.M. 1, 71 P.3d 509, cert. denied, 134 N.M. 123, 73 P.3d 826.

If any doubt court may hold property as community. — When entertaining an ultimate doubt as to whether property is separate or community, the trial court may resolve the doubt by holding the property to be community, if acquired after marriage and the trial court may, subject to review, set over real estate to the wife in lieu of alimony. Loveridge v. Loveridge, 1948-NMSC-044, 52 N.M. 353, 198 P.2d 444.

Community property becomes separate property when divided by divorce. — When community property is divided incident to divorce, the property which previously was community estate, becomes thenceforth separate property of the respective parties. Harper v. Harper, 1950-NMSC-024, 54 N.M. 194, 217 P.2d 857.

Judgment creditor may look to community property for satisfaction of judgment. — Either party to a divorce action may bring in third parties who claim an interest in the property alleged to be community, or third parties themselves may intervene and have their rights therein determined. Greathouse v. Greathouse, 1958-NMSC-032, 64 N.M. 21, 322 P.2d 1075.

When creditor intervenes in divorce proceeding to assert interest in property, the court in the interest of protecting the children may not negative or disregard legal obligations, or relieve property from a valid claim presented against it. Malcolm v. Malcolm, 1965-NMSC-138, 75 N.M. 566, 408 P.2d 143.

Predivorce creditor unaffected by marital settlement agreement. — While a marital settlement agreement affects the rights and liabilities of husband and wife between themselves, it has no effect upon the rights of a predivorce creditor who was not a party to the agreement; therefore, a wife who joined her husband on a share-draft account and open-end account remains obligated under the terms of those contracts. N.M. Educators Fed. Credit Union v. Woods, 1984-NMSC-101, 102 N.M. 16, 690 P.2d 1010.

Apportioning assets and liabilities between parties. — In apportioning a husband and wife's assets and liabilities, the trial court must attempt to perform an allocation that is fair under all the circumstances. Fernandez v. Fernandez, 1991-NMCA-001, 111 N.M. 442, 806 P.2d 582.

The court's power to apportion assets in an equitable manner should also include the ability to give effect to the parties' intentions, whether or not the parties strictly comply with the community property or debt statutes. Fernandez v. Fernandez, 1991-NMCA-001, 111 N.M. 442, 806 P.2d 582.

Social Security benefits. — Social Security benefits are considered separate property and cannot be used to set off an equal distribution of community property upon divorce. English v. English, 1994-NMCA-090, 118 N.M. 170, 879 P.2d 802, cert. denied, 118 N.M. 256, 880 P.2d 867.

Separate property value enhanced due to community labor. — The community is entitled to a lien against the separate property of a spouse for the enhanced value of such property attributable to community labor during marriage. Smith v. Smith, 1992-NMCA-080, 114 N.M. 276, 837 P.2d 869.

Where there has been an increase during marriage in the value of a business held as the separate property of a spouse, due in part to community efforts and labor, any undercompensation of one or both spouses employed by the business is a factor which may properly be considered in determining whether a community lien should be imposed against such property; ascertaining the amount of comparable wages for the value of community labor performed on behalf of such business is an appropriate method of determining whether the value of such labor has been fairly compensated. Smith v. Smith, 1992-NMCA-080, 114 N.M. 276, 837 P.2d 869.

Apportioning income between personal efforts and separate property. — In apportioning assets between a spouse's separate estate and the community, each case must be determined with reference to its surrounding facts and circumstances to determine what amount of the income is due to personal efforts of the spouses and what is attributable to the separate property employed; dependent upon the nature of the business and the risks involved, it must be reckoned what would be a fair return on the capital investment as well as determined what would be a fair allowance for the personal services rendered. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Apportionment does not require mathematical exactness but all circumstances considered. — It is impossible to lay down hard and fast guidelines in apportioning assets between the separate estate of a conjugal partner and the community; the surrounding circumstances must be carefully considered as each case will depend upon its own facts, and the ultimate answer will call into play the nicest and most profound judgment of the trial court. Mathematical exactness is not expected or required, but substantial justice can be accomplished by the exercise of reason and judgment in all such cases. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Even if the dollar amount of the property distribution is unequal, there is no requirement that each party receive exactly the same dollar value as long as the community property is equally apportioned by a method of division best suited under the circumstances. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749; Cunningham v. Cunningham, 1981-NMSC-087, 96 N.M. 529, 632 P.2d 1167.

Community lien not disturbed. — Where the only separate funds of the husband used in the family home was the sum paid for the lot upon which it was constructed, and the evidence showed that the parties expended a considerable sum on the home after its completion (although whether community or separate funds were used for that purpose was unclear), that a few mortgage payments were made from community funds, that refinancing of the mortgage was accomplished by a note and mortgage signed by both the husband and wife and that the community credit was pledged thereby, and that both parties expended considerable time and effort in making improvements, and there was no attempt to trace the separate funds of the husband into the expenditures for the home after completion, the trial court's conclusion that the community had a lien of one half of the difference between the original land price and the mortgage balance attributable to community expenditures of time, effort and money (as opposed to normal appreciations) would not be disturbed. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Community does not acquire interest in corporation. — Where the husband was paid for his services to a corporation in which he owned a one-half interest which salary of course belonged to the community, and there was no proof in the record that the salary was not adequate or reasonable under the circumstances, having started at $7,500 in 1964 when he returned from college and increased to $35,000 in 1972, the trial court erred in concluding that the community had acquired an interest in the corporation. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Modification of judgment. — The only way an unmodifiable judgment of property settlement may be modified or set aside is by appeal or pursuant to a motion for relief from judgment. Russell v. Russell, 1987-NMCA-085, 106 N.M. 133, 740 P.2d 127.

Wife's interest in community property not forfeited by adultery. — This section does not forfeit the wife's interest in the community property by her adultery, and her rights therein are not affected by any of her wrongs. Beals v. Ares, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.

First wife estopped against claiming husband's property in second divorce. — Where San Miguel court granted divorce decree in February, 1949, retaining jurisdiction of case upon settlement of community property, and husband remarried in August, 1949, and husband and first wife entered into agreement in September, 1949, disposing of undivided interest in hotel, and second wife subsequently filed for and obtained a divorce in Bernalillo court in November, 1950; the fact that first wife's motion for a hearing in the San Miguel court for further proof concerning community property was not made until six months after the divorce decree in second court, and over two years after divorce in first court, she was estopped as against the second wife to claim the agreement was not a transmutation of community property into separate property liable for husband's independent obligations; and until the San Miguel court took some affirmative action, such as a review of the September agreement to determine the equities of the parties therein, the second court could acquire jurisdiction over the sole and separate property of the husband. Ortiz v. Gonzales, 1958-NMSC-109, 64 N.M. 445, 329 P.2d 1027.

Providing for husband's share where house left to wife. — Where the net effect of leaving the home to the wife until she remarries or dies or decides to sell it is to divest the husband of his equity in the property, the trial court should order the house sold and the net proceeds distributed to the parties within a reasonable time, or make such other disposition of the home as will result in the husband receiving, within a reasonable time, his share of the value of the home. Chrane v. Chrane, 1982-NMSC-089, 98 N.M. 471, 649 P.2d 1384.

Modification of original property division. — Apart from the exceptions to the general rule contained in this section and Rule 60(b), N.M.R. Civ. P., once the time has lapsed within which an appeal may be taken from a divorce decree, a court cannot change the original division of the property as an exercise of its continuing jurisdiction. Higginbotham v. Higginbotham, 1979-NMSC-003, 92 N.M. 412, 589 P.2d 196.

Property division not supported where court did not pass on question of property. — In divorce proceeding where the court was neither requested nor did it pass upon any question of the property rights of the parties, neither can the action of the trial court in adjudicating the right to community property be supported as an exercise of its continuing jurisdiction under this section. Zarges v. Zarges, 1968-NMSC-151, 79 N.M. 494, 445 P.2d 97.

B. VALUATION.

Opinion of owner as to value. — In divorce proceedings, an owner is entitled to give opinion as to value of community property. Lahr v. Lahr, 1970-NMSC-165, 82 N.M. 223, 478 P.2d 551.

Prior to enactment of rules of evidence, where spouse did not testify as to value of certain community property in divorce action, an accountant's deposition statements as to what were claimed to be the spouse's personal opinion as that value were improperly admitted, because even if those values were those of the defendant, the accountant's deposition testimony was hearsay, being the testimony of a witness as to out-of-court statements of a declarant who was not a witness as to that specific subject matter. Lahr v. Lahr, 1970-NMSC-165, 82 N.M. 223, 478 P.2d 551.

Court to accept valuation of property by one spouse. — Where the only admissible evidence as to the value of certain community property was the valuation of one spouse, the trial court was required to accept this valuation in making its allocation of the community property since there was no direct evidence of spouse's lack of veracity or bad moral character, testimony contained no inherent improbabilities, nor was it surrounded by suspicious circumstances, so that legitimate inferences could be drawn therefrom to cast doubt on the accuracy of that testimony. Lahr v. Lahr, 1970-NMSC-165, 82 N.M. 223, 478 P.2d 551.

Apportionment of separate property. — Apportionment is appropriate whenever community labor or community funds have enhanced the value of separate property. No one method of apportionment is favored above all others. The trial court may use whatever method will achieve substantial justice and is supported by substantial evidence in the record. Trego v. Scott, 1998-NMCA-080, 125 N.M. 323, 961 P.2d 168, cert. denied, 125 N.M. 322, 961 P.2d 167.

Review of value of community property. — Where supreme court examined the record and found substantial support for the value of certain community property fixed by the court, as well as for the amount offered by the appellee, both in appellee's testimony and that of an expert appraiser who testified on her behalf, it would not disturb the court's findings. Krattiger v. Krattiger, 1969-NMSC-170, 81 N.M. 59, 463 P.2d 35.

Determination of present value of profit-sharing plan as community asset. — Where evidence failed to show an ascertainable future benefit from which the trial court could make a determination of the present value of a noncontributory profit-sharing plan, the court correctly used the undiscounted current, actual value of the plan at the date of the divorce in determining its division as a community asset upon divorce. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749.

Value of community interest in separate property. — A method of apportionment to give the separate property owner a fair return on the owner's investment is to determine the value of the separate property at the date of marriage, add interest that a well-secured, long-term investment would have earned to the pre-marriage value of the separate property, the resulting sum is the separate property interest, determine the fair market value of the separate property as of the date of divorce, and apportion the fair market value of the separate property as of the date of divorce by giving the separate property owner an interest equal to the separate property interest and giving the community the balance of the fair market value. Dorbin v. Dorbin, 1986-NMCA-114, 105 N.M. 263, 731 P.2d 959; Trego v. Scott, 1998-NMCA-080, 125 N.M. 323, 961 P.2d 168, cert. denied 125 N.M. 322, 961 P.2d 167.

Apportionment of separate and community interests. — In the apportionment of separate and community interests in separate property that has been enhanced by community efforts, the court may consider fair market value or equity and use a rate of return on the fair market value or on the equity, in its discretion, recognizing that the two rates would be different and considering appropriate data to determine what the applicable percentage would be. Trego v. Scott, 1998-NMCA-080, 125 N.M. 323, 961 P.2d 168, cert. denied 125 N.M. 322, 961 P.2d 167.

C. RETIREMENT BENEFITS.

Contingent retirement benefits. — A spouse's entitlement to half of the community interest in a pension plan earned during coverture does not rest upon whether the employee's interest was vested at the time of divorce, but whether the employee's rights in the pension constitute a property interest or right obtained with community funds or labor, while rights to benefits under the retirement plan may never vest or mature due to circumstances and unforeseeable occurrences, the spouse is entitled to have the spouse's portion of the contingent interest valued and divided. Berry v. Meadows, 1986-NMCA-002, 103 N.M. 761, 713 P.2d 1017.

Division of future disability benefits. — To the extent the community contributed, a husband's future federal civil service disability benefits are community property subject to division upon dissolution of a marriage. Hughes v. Hughes, 1981-NMSC-110, 96 N.M. 719, 634 P.2d 1271, superseded by statute, Koppenhaver v. Koppenhaver, 1984-NMCA-017, 101 N.M. 105, 678 P.2d 1180.

Retirement benefits. — The rule for distribution of a nonemployee spouse's interest in a retirement plan, whatever the rule is, should be applied only in the absence of an agreement between the spouses on the subject. Ruggles v. Ruggles, 1993-NMSC-043, 116 N.M. 52, 860 P.2d 182.

The "lump sum" method is the preferable one for satisfying the nonemployee spouse's claim to her community interest in her spouse's retirement plan, and the trial court should have discretion in implementing that method, alone or in combination with other methods, including (in an appropriate case) the "reserved jurisdiction" method, in distributing the nonemployee spouse's interest upon dissolution. Ruggles v. Ruggles, 1993-NMSC-043, 116 N.M. 52, 860 P.2d 182.

Applying retirement penalties. — Absent an express agreement by the parties to the contrary, the only retirement penalties to be imposed against the nonemployee spouse's share of the pension being distributed pursuant to a "pay-as-it-comes in" method are those penalties that were actually applied to calculate the employee spouse's pension benefits, not any hypothetical penalties. Franklin v. Franklin, 1993-NMCA-077, 116 N.M. 11, 859 P.2d 479, cert. denied, 115 N.M. 795, 858 P.2d 1274.

Value of fully vested pension. — When the community interest in a pension is fully vested and matured, the trial court should value the retirement benefits as a whole, including the value of the survivor's benefit provision of the retirement plan, and consider such value in apportioning each party's share of the total retirement benefits. Irwin v. Irwin, 1996-NMCA-007, 121 N.M. 266, 910 P.2d 342.

Effect of timing of receipt of retirement benefits. — Where the parties entered into a marital settlement agreement which provided for the payment of a share of respondent's retirement benefits to petitioner; the marital settlement agreement was silent as to when petitioner was entitled to receive retirement benefits; respondent, who was employed by the United States Post Office, became eligible for retirement under federal retirement law in December 2005; the district court found that the parties knew and anticipated that respondent would be eligible for retirement in December 2005, that if petitioner were entitled to receive retirement benefits only when respondent actually retired, respondent would be in absolute control of when petitioner would receive petitioner's share of the retirement benefits, and that respondent failed to show that there was any discussion, negotiation, or agreement that petitioner would be paid a share of the retirement benefits only when respondent actually retired, the district court's determination that petitioner was entitled to receive a share of retirement benefits beginning in December 2005 was supported by substantial evidence. Garcia v. Garcia, 2010-NMCA-014, 147 N.M. 652, 227 P.3d 621, cert. quashed, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.

Retirement benefits calculation. — Where the parties entered into a marital settlement agreement which provided for the payment of a share of respondent's retirement benefits to petitioner; the parties were divorced in 1994 and respondent became eligible for retirement in 2005; the marital settlement agreement provided for a pay-as-it-comes-in approach to distribution; the marital settlement agreement was ambiguous as to the point in time when petitioner's benefits were to be valued; the marital settlement agreement provided a formula to determine petitioner's share of the retirement benefits; the formula consisted of a fraction, the denominator of which was the total number of months of credited service at respondent's retirement, instead of the total number of months of credited service as of the date of divorce; the marital settlement agreement also provided that respondent was to receive one-half of the community interest in respondent's retirement plan through the date of August 31, 1994, and that respondent was to receive one-half of the community interest in respondent's retirement plan and all of the interest respondent accrued in the retirement plan prior to the party's marriage and subsequent to August 31, 1994, the district court did not err by determining that the benefits payable to petitioner should be calculated based on respondent's average salaries at the time of retirement eligibility, as opposed to at the time of divorce, because the formula was consistent with the time rule which is customarily applied for distribution of benefits in a manner that calls for benefits valuation at the time of retirement eligibility. Garcia v. Garcia, 2010-NMCA-014, 147 N.M. 652, 227 P.3d 621, cert. quashed, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611.

Present value of retirement benefits. — The value of a spouse's vested right in a defined benefit pension plan was correctly determined to be the actuarial present value of the benefit the spouse would be entitled to receive upon the plan's maturity date, taking into account monetary contributions and current pension entitlement accrued during coverture and based on the employee's current salary. Mattox v. Mattox, 1987-NMCA-021, 105 N.M. 479, 734 P.2d 259.

Military retirement benefits are community property for purposes of distribution of property upon divorce. Walentowski v. Walentowski, 1983-NMSC-097, 100 N.M. 484, 672 P.2d 657.

The federal Uniformed Services Former Spouses' Protection Act, which allows each state to determine the marital property status of military retirement benefits, should be given retroactive application to the date of the decision in McCarty v. McCarty, 453 U.S. 210 (June 25, 1980). Walentowski v. Walentowski, 1983-NMSC-097, 100 N.M. 484, 672 P.2d 657.

New principle of law related to military retirement pay not applied retroactively. — Where, upon husband and wife's divorce, the parties entered into a marital settlement agreement (MSA) providing wife with fifty percent of husband's disposable retirement pay which was earned during the term of their marriage, and where, eight years after the divorce, husband waived his retirement pay in order to receive disability-based combat related special compensation, thereby eliminating wife's monthly percentage of husband's retirement pay, the district court's order requiring husband to pay wife what they agreed to in the MSA was inconsistent with the United States supreme court's recent decision in Howell v. Howell, 137 S.Ct. 1400 (2017), which held that a state court's capacity to order reimbursement or indemnification of post-divorce waived retirement pay in an effort to restore past marital settlement agreements or its own past order dividing marital assets is expressly preempted, and therefore, impermissible in New Mexico. Howell, however, establishes a new principle of law by abrogating established New Mexico precedent that protects a wife's interest, awarded by decree, in her husband's military retirement benefits, and retroactive application of Howell would unjustly and inequitably undo significant provisions of marital settlement agreements that were based on New Mexico precedent. Russ v. Russ, 2020-NMCA-008, cert. granted.

Indemnity provision. — Federal law does not prohibit state courts from enforcing indemnity provisions which ensure the payment of a minimum sum to a non-military spouse as the spouse's share of a community pension, provided that veteran's disability benefits are not specified as the source of such payments. Scheidel v. Scheidel, 2000-NMCA-059, 129 N.M. 223, 4 P.3d 670.

Nondisability military retirement pay is separate property of the spouse who is entitled to receive it, and it is not subject to division upon dissolution of marriage. Espinda v. Espinda, 1981-NMSC-098, 96 N.M. 712, 634 P.2d 1264, superseded by statute, Ruggles v. Ruggles, 1993-NMSC-043, 116 N.M. 52, 860 P.2d 182.

Nondisability military retirement pay. — That part of Espinda v. Espinda, 1981-NMSC-098, 96 N.M. 712, 634 P.2d 1264, holding that the character of nondisability military retirement benefits is separate property is superseded to the extent authorized by 10 U.S.C. § 1408. Walentowski v. Walentowski, 1983-NMSC-097, 100 N.M. 484, 672 P.2d 657.

Disposition of retirement or pension benefits. — To dispose of retirement or pension benefits in a divorce proceeding, the trial court should make a determination of the present value of the unmatured pension benefits with a division of assets which includes this amount, or divide the pension on a "pay as it comes in" system. This way, if the community has sufficient assets to cover the value of the pension, an immediate division would make a final disposition; but if the pension is the only valuable asset of the community and the employee spouse could not afford to deliver either goods or property worth the other spouse's interest, then the trial court may award the nonemployee spouse his/her portion as the benefits are paid. Copeland v. Copeland, 1978-NMSC-011, 91 N.M. 409, 575 P.2d 99.

III. RESTRAINING PROPERTY USE.

Restraining order application confers jurisdiction over property. — Application for a restraining order to prevent husband or wife from disposing of community property effectively confers jurisdiction over the property on the court, while mere institution of divorce proceedings will not. Lohbeck v. Lohbeck, 1963-NMSC-071, 72 N.M. 78, 380 P.2d 825.

Order restraining disposition of stock conferred jurisdiction. — Where divorced wife made motion in one division of district court to vacate divorce decree because husband had failed to disclose corporate stock, issuance of order restraining disposition of such stock conferred jurisdiction of the res on the divorce court and subjected stock to the jurisdiction of the court having jurisdiction of the marital status of the parties even though the court did not take actual possession of the res, although execution had issued from another division of district court to be levied on stock to satisfy a judgment against husband. Greathouse v. Greathouse, 1958-NMSC-032, 64 N.M. 21, 322 P.2d 1075.

Transferring community property during pendency of divorce. — Action by husband of transferring certain community property of which he was principal stockholder, during pendency of a divorce action, does not constitute actionable contempt. Lohbeck v. Lohbeck, 1963-NMSC-071, 72 N.M. 78, 380 P.2d 825.

IV. ALLOWING AND MODIFYING ALIMONY.

A. IN GENERAL.

Purpose of alimony. — Alimony is not intended to constitute a penalty imposed upon a husband, but that it is a personal right intended for the purpose of one spouse supporting the other after losing sustenance and the support of coverture, although alimony is not to be condoned when it amounts to one spouse abdicating that spouse's responsibility to support and maintain themselves. Lovato v. Lovato, 1982-NMSC-052, 98 N.M. 11, 644 P.2d 525.

Subsection F of this section is construed to mean what it says. — In cases in which the marriage lasted twenty or more years, the court must retain jurisdiction to consider spousal support when the final decree was silent as to such support. Rhoades v. Rhoades, 2004-NMCA-020, 135 N.M. 122, 85 P.3d 246.

Subsection F provides express authority for a district court to award spousal support. Rhoades v. Rhoades, 2004-NMCA-020, 135 N.M. 122, 85 P.3d 246.

Reduction in spouse's share of military retirement benefits. — Subsection F of this section is read to permit the award of spousal support where the cause for the award develops from financial inequity resulting from a reduction in a spouse's share of military retirement benefits due to an increase in disability benefits. Rhoades v. Rhoades, 2004-NMCA-020, 135 N.M. 122, 85 P.3d 246.

Effect of bankruptcy court's action. — Where the district court had independent statutory authority on which to award spousal support, a bankruptcy court's factual findings, legal conclusions, and judgment had no preclusive effect. Rhoades v. Rhoades, 2004-NMCA-020, 135 N.M. 122, 85 P.3d 246.

Need is first criteria in determining alimony. Weaver v. Weaver, 1983-NMSC-063, 100 N.M. 165, 667 P.2d 970; Lebeck v. Lebeck, 1994-NMCA-103, 118 N.M. 367, 881 P.2d 727.

Alimony is personal right and not a property right, and as such, it would not continue without end if the circumstances have changed due to the passage of time, and the recipient is able to support herself. McClure v. McClure, 1976-NMSC-042, 90 N.M. 23, 559 P.2d 400; Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

The right of alimony is a continuation of the right to support, and is a personal and not a property right. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345; Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Right to alimony under New Mexico case law is a continuation of the right to support and is personal and not a property right. Cain v. Cain, 1978-NMSC-014, 91 N.M. 423, 575 P.2d 607.

Right to alimony is continuation of right to support. — It is a personal and not a property right. In New Mexico this right is recognized, but it is not an absolute right. The award or denial of alimony rests within the sound discretion of the trial court in making a determination as to what is just and proper under the circumstances. Burnside v. Burnside, 1973-NMSC-091, 85 N.M. 517, 514 P.2d 36.

Purpose of alimony. — Alimony is the support which a court decrees in favor of either party as a substitute for, and in lieu of, the common-law or statutory right to marital support during coverture. Chavez v. Chavez, 1971-NMSC-062, 82 N.M. 624, 485 P.2d 735.

Alimony provisions severable from property settlement provisions. — The provisions of a divorce decree regarding alimony are entirely severable from the provisions as to property settlement. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Appellate court only examines evidence to determine abuse of discretion. — The court in a divorce action is authorized by the statutes to allow the wife such a reasonable portion of the husband's separate property, or such a reasonable sum of money to be paid by the husband, either in a single sum, or in installments, as alimony, as under the circumstances of the case may seem just and proper; and may modify and change any order in respect to alimony allowed the wife, whenever circumstances render such change proper; therefore, on appeal, an appellate court will only examine the evidence to determine whether there was an abuse of discretion in fixing an amount which was contrary to all reason. Michelson v. Michelson, 1974-NMSC-022, 86 N.M. 107, 520 P.2d 263; Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Review of alimony award. — In considering an award of alimony, the supreme court examines the record only to determine if the trial court abused its discretion by fixing an amount that was contrary to all reason. Psomas v. Psomas, 1982-NMSC-154, 99 N.M. 606, 661 P.2d 884; Howard v. Howard, 1983-NMSC-050, 100 N.M. 105, 666 P.2d 1252; overruled in part by Walentowski v. Walentowski, 1983-NMSC-097, 100 N.M. 484, 672 P.2d 657; Gallemore v. Gallemore, 1967-NMSC-225, 78 N.M. 434, 432 P.2d 399; Sloan v. Sloan, 1967-NMSC-080, 77 N.M. 632, 426 P.2d 780; Chrane v. Chrane, 1982-NMSC-089, 98 N.M. 471, 649 P.2d 1384.

Award altered only if abuse of discretion shown. — It is within the sound discretion of the district court to determine whether to award alimony. An alimony award will be altered only upon a showing of an abuse of discretion. Hertz v. Hertz, 1983-NMSC-004, 99 N.M. 320, 657 P.2d 1169.

Factors to consider in awarding temporary or permanent alimony. — When a district court finds that a spouse is entitled to periodic spousal support for normal living expenses, but may become self-sufficient in the future, the court ordinarily should not order that periodic support terminate automatically at a future date when the recipient spouse may become self-sufficient. The proper course is to order such support for an indefinite time, with the payor spouse bearing the burden to move for reduction or termination of support when the recipient spouse has become more self-sufficient. Rabie v. Ogaki, 1993-NMCA-096, 116 N.M. 143, 860 P.2d 785.

Separation contract cutting off support contrary to public policy. — Provisions of a separation contract which would cut the plaintiff off without support from her former spouse in the case of spouse's remarriage though plaintiff remained single, or in the case of spouse's change of occupation, are void as contrary to public policy. Scanlon v. Scanlon, 1955-NMSC-035, 60 N.M. 43, 287 P.2d 238.

Missouri decree entitled to full faith and credit. — A Missouri divorce decree which was a final and proper judgment of the Missouri court concerning alimony, child support and custody fully litigated and agreed to by all parties was entitled to full faith and credit under U.S. Const., art. IV, § 1. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Allowance of alimony as due process violation disfavored. — The contention that an allowance of alimony is in violation of the due process clause of the federal and state constitutions is looked upon with disfavor. Bardin v. Bardin, 1947-NMSC-003, 51 N.M. 2, 177 P.2d 167.

Alimony is not intended as penalty against husband. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Alimony is intended to fulfill husband's obligation to provide support needed by the wife in accordance with the husband's ability to pay. Hurley v. Hurley, 1980-NMSC-067, 94 N.M. 641, 615 P.2d 256.

If alimony issue raised, parties entitled to present evidence. — Where plaintiff contended a need on her part for a continuation of her right to support and defendant denied this need, the issue of alimony was raised, and a proper disposition of this factual issue entitled plaintiff to introduce evidence and be fully heard in support of her contention. The trial court, by disposing of the issue on the basis of the colloquy between it and counsel, denied plaintiff her right. Burnside v. Burnside, 1973-NMSC-091, 85 N.M. 517, 514 P.2d 36.

This section does not authorize award of alimony subsequent to entry of final decree, when that decree did not initially award any alimony, unless the claimant is entitled to relief under Rule 1-059 or 1-060 NMRA. Gruber v. Gruber, 1974-NMSC-055, 86 N.M. 327, 523 P.2d 1353; Benavidez v. Benavidez, 1983-NMSC-032, 99 N.M. 535, 660 P.2d 1017.

Alimony justified even though spouse receives property. — Alimony may be justified even though the wife eventually receives a large amount of property. Mitchell v. Mitchell, 1986-NMCA-028, 104 N.M. 205, 719 P.2d 432, cert. denied, 104 N.M. 84, 717 P.2d 60.

In a separation agreement provisions for alimony are severable from provisions as to property, and where the separation agreement was merged in the decree of divorce and became a part thereof, the provision for alimony is, by reason of the statute authorizing the court to modify provision for alimony at any time, subject to change. Scanlon v. Scanlon, 1955-NMSC-035, 60 N.M. 43, 287 P.2d 238.

Award of wife's share of community property not alimony. — An award to a wife of her share of the community property, the payment of which the court properly secured with a lien on the husband's separate property, was not tantamount to an award of alimony. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749.

Court may order community residence sold where spouse needs immediate, regular income. — Despite a husband's offer to give the wife his share in the community residence in lieu of alimony, the trial court's decision to award alimony and order the sale of the residence is proper where the wife demonstrates a need for immediate, regular income for her necessities. Psomas v. Psomas, 1982-NMSC-154, 99 N.M. 606, 661 P.2d 884, overruled in part by Walentowski v. Walentowski, 1983-NMSC-097, 100 N.M. 484, 672 P.2d 657.

Court may order husband to sign note for wife's residence. — Court may order ex-husband to cosign a note or enforce that order by appointing a special master to sign a note on the husband's behalf subsequent to entry of a marital settlement agreement between parties, in light of a previous order setting out the obligations of the husband regarding a new residence for his ex-wife and children. Wolcott v. Wolcott, 1984-NMCA-089, 101 N.M. 665, 687 P.2d 100.

Settlement contracts which provide for payments in lieu of alimony are subject to inquiry and modification by the trial court. Ferret v. Ferret, 1951-NMSC-076, 55 N.M. 565, 237 P.2d 594.

Defenses available against payment of support. — In a proceeding for the enforcement of a support order, any valid defense against payment may be raised, including the defense of payment from some other source. Mask v. Mask, 1980-NMSC-134, 95 N.M. 229, 620 P.2d 883.

Power to award alimony independent of being guilty. — This section constitutes a clear and unequivocal grant of power to district courts to award the wife, in divorce actions, reasonable alimony, in installments or lump sums, independent of which spouse may have been the guilty party. The power is limited only to the grant of a reasonable sum, as that factor is limited by the facts of the particular case. Redman v. Redman, 1958-NMSC-096, 64 N.M. 339, 328 P.2d 595.

Alimony may be awarded independent of guilt. — District courts are empowered to award to the wife, in divorce actions, reasonable alimony, in installments or lump sum, independent of which spouse may have been the guilty party, and, on appeal in such case, the matter for review was whether the trial court abused its discretion in fixing the amount of the award under the circumstances of the case. Cassan v. Cassan, 1921-NMSC-060, 27 N.M. 256, 199 P. 1010.

Granting alimony where not demanded. — A divorce decree granting the wife as alimony the difference between the value of the community property which she received and the value of the community property which the husband received was affirmed despite the fact that alimony was not demanded in the wife's petition as required by Rule 1-054(c) NMRA in judgment by default, since the essential nature of the decree was an equitable division of the community property of the parties for which the wife had petitioned. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.

Even though not specifically requested, the court may, in an effort to equitably divide the community property, grant an award of alimony. Ridgway v. Ridgway, 1980-NMSC-055, 94 N.M. 345, 610 P.2d 749.

Since divorce decree is silent on any award of alimony to wife, that judgment is res judicata on the question of alimony and precludes a later alimony award. Furthermore, a general reservation of jurisdiction in the decree is ineffective to uphold an award of alimony allowed after the entry of a final decree of divorce. Unser v. Unser, 1974-NMSC-063, 86 N.M. 648, 526 P.2d 790.

Lump sum in lieu of alimony. — It is within the power of the trial court to award and to set over to the wife a lump sum in lieu of alimony out of the husband's interest in the community. Harper v. Harper, 1950-NMSC-024, 54 N.M. 194, 217 P.2d 857.

Continuing jurisdiction. — When Subsection F refers to court's continuing jurisdiction "over proceedings involving periodic spousal support payments," it is referencing the support payment provisions in Subsection B(1)(a), (b), and (c) of this section. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.

Alimony installments as absolute and vested. — 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).

Accrued alimony. — Once a foreign court awards alimony and the installments become due, and where, under the law of that state, accrued, alimony cannot be cancelled; it therefore vests when due. The right to those accrued installments of alimony becomes a fixed property right. The judgment, insofar as the accrued alimony is concerned, becomes a nonmodifiable judgment and is enforceable and entitled to full faith and credit in all states under the U.S. Const., art. IV, § 1. Cain v. Cain, 1978-NMSC-014, 91 N.M. 423, 575 P.2d 607.

Court may disregard original alimony agreement and make own award. — Under Subsection B(2), the court may disregard a stipulated agreement for alimony incorporated in an original divorce decree and make an award that the court deems fair. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Mental health of recipient. — The provision requiring the trial court to consider the health of a spouse seeking spousal support implicitly requires that the court also consider the mental health of a spouse where a prima facie showing has been made concerning the recipient spouse's alleged current mental condition. Martinez v. Martinez, 1997-NMCA-125, 124 N.M. 313, 950 P.2d 286.

B. AMOUNT OF ALIMONY.

No fixed rule by which amount of permanent alimony can be determined, since each case must be decided upon its own relevant facts, in the light of what is fair and reasonable. Sloan v. Sloan, 1967-NMSC-080, 77 N.M. 632, 426 P.2d 780; Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Important factors to consider in determining permanent alimony. — There is no fixed rule by which the amount of permanent alimony can be determined, since each case must be decided upon its relevant facts in the light of what is fair and reasonable; however, some of the important factors to be considered in a determination of the amount of alimony to be awarded are the needs of the wife, her age, health and the means to support herself, the earning capacity and the future earnings of the husband, the duration of the marriage and the amount of property owned by the parties. Michelson v. Michelson, 1974-NMSC-022, 86 N.M. 107, 520 P.2d 263; Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167; Hurley v. Hurley, 1980-NMSC-067, 94 N.M. 641, 615 P.2d 256; Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133, 637 P.2d 564.

Factors to be considered by a district court in determining whether an alimony award is just and proper include the duration of the marriage, the wife's needs, her age, her health, the means she has available to support herself, the husband's earning capacity and the amount of property owned by each of the parties. Hertz v. Hertz, 1983-NMSC-004, 99 N.M. 320, 657 P.2d 1169; Rabie v. Ogaki, 1993-NMCA-096, 116 N.M. 143, 860 P.2d 785.

Circumstances of both spouses considered. — The total circumstances of the supporting spouse as well as those of the recipient spouse must be considered in determining the amount of alimony, in order to avoid hardship on the supporting spouse and not to permit the recipient spouse to abdicate the responsibility for his or her own support and maintenance. Mitchell v. Mitchell, 1986-NMCA-028, 104 N.M. 205, 719 P.2d 432, cert. denied, 104 N.M. 84, 717 P.2d 60.

Factors to be excluded in determining alimony. — A wife is not entitled to alimony in order to afford herself an opportunity to achieve an earning capacity reasonably comparable to that of her husband, nor in order to support herself in a style reasonably comparable to that enjoyed by the parties during the marriage. These are not factors upon which alimony is determined. Hertz v. Hertz, 1983-NMSC-004, 99 N.M. 320, 657 P.2d 1169.

Subchapter-S corporation income. — Distributions from a Subchapter-S corporation that exceed the amount necessary to pay corporate business expenses or the shareholder-spouse's tax obligations are considered income for purposes of calculating family support obligations. All Subchapter-S corporation funds distributed to the shareholder-spouse must be attributed to the shareholder-spouse as income for spousal support purposes unless and until the shareholder-spouse can demonstrate what portion of the corporate distribution was used for business purposes or to offset the payment of income taxes resulting from any K-1 allocations. Clark v. Clark, 2014-NMCA-030, cert. denied, 2013-NMCERT-012.

Where respondent was the sole owner and operator of a Subchapter-S corporation; during the marriage of the parties, respondent received both a regular salary from the corporation as W-2 income and additional cash distributions as non-W-2 income; because the non-W-2 income distributed by the corporation did not match the K-1 allocations from the corporation that were reported on the parties's income tax returns, the district court found that it could not determine how much income respondent actually received from the non-W-2 income distributions, disregarded the non-W-2 income distributions in its calculation of respondent's income, and calculated respondent's income on the W-2 income alone, it was an abuse of discretion for the district court to exclude all of respondent's non-W-2 income for purposes of calculating family support obligations. Clark v. Clark, 2014-NMCA-030, cert. denied, 2013-NMCERT-012.

Duration of spousal support. — Where petitioner did not work outside the home during the parties' marriage; respondent was the owner and operator of a Subchapter-S corporation, which was respondent's separate property; petitioner was 60 years of age and had no known prospects for any future earning capacity; the parties did not introduce any evidence of petitioner's earning capacity and did not anticipate petitioner's return to work as a viable reality; respondent was 66 years of age and due to respondent's age and health, respondent wanted to retire; and the district court awarded petitioner transitional support for an eighteen-month period without any evidence addressing petitioner's' future employability or potential income, the district court abused its discretion when it limited the duration of spousal support to eighteen months. Clark v. Clark, 2014-NMCA-030, cert. denied, 2013-NMCERT-012.

Nature of community assets awarded to be considered in alimony determination. — The trial court must look to the nature of the community assets given to each of the parties upon division in determining alimony. Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133, 637 P.2d 564.

Where the record does not reflect that the trial court considered the contrasting nature of the assets awarded to each party in evaluating the relative needs of the parties and reaching the amount of alimony to be awarded, the appellate court may remand to the trial court for further proceedings to reconsider the award of alimony. Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133, 637 P.2d 564.

Wife may testify on own medical condition. — In divorce and alimony action, trial court did not err in permitting wife to testify as to her present medical condition. Russell v. Russell, 1984-NMSC-010, 101 N.M. 648, 687 P.2d 83.

Proceeds from sale of property generally not considered. — While income (rental, interest, lease, etc.) produced by property may normally be considered in setting alimony, proceeds from selling the property itself should not be considered except in such rare cases where fairness requires. Ellsworth v. Ellsworth, 1981-NMSC-132, 97 N.M. 133, 637 P.2d 564.

Trial court did not abuse its discretion in awarding wife $2,500 in alimony, payable in monthly installments of $125, when granting her a divorce, where husband owned $40,000 tourist court as separate property, and where record showed that whatever money was made from the tourist court operation was due in fact to the work of the wife, and at the time of trial she was making $30 per week as a waitress. Redman v. Redman, 1958-NMSC-096, 64 N.M. 339, 328 P.2d 595.

Award not abuse of discretion. — An award of alimony of $4,000 in a lump sum out of an estate of $8,000, part of which is community property, and out of which sum appellee has to pay attorney fees, costs of the suit and support herself in ill health and destitute circumstances is not an abuse of discretion. Golden v. Golden, 1937-NMSC-021, 41 N.M. 356, 68 P.2d 928.

Award not abuse of discretion. — An award of $75 per month for 12 months to a 31-year-old, able-bodied wife capable of working as she had done before and during her married life is not so little as to be an abuse of discretion by the trial court. Jones v. Jones, 1960-NMSC-106, 67 N.M. 415, 356 P.2d 231.

C. MODIFICATION OF AWARD.

Automatic alimony increases. — It is not proper to include provisions in divorce decrees which provide for automatic alimony increases, whether they are expressed as escalator clauses, in terms of a percentage of a supporting spouse's income, or based upon a sliding-scale formula. Dunning v. Dunning, 1986-NMSC-036, 104 N.M. 295, 720 P.2d 1236.

Reopening support decrees. — The public policy of this state discourages repeated attempts to reopen support decrees. This policy places a burden upon the movant to show not just a substantial factual change, but also that, all things considered, the change justifies a new support order. Placing the burden of persuasion on the moving party implements public policy by making it more difficult to reopen the prior support order and easier to defend it. Cherpelis v. Cherpelis, 1996-NMCA-037, 121 N.M. 500, 914 P.2d 637, cert. denied, 121 N.M. 444, 913 P.2d 251.

Lump sum alimony, once awarded, cannot be modified. Michaluk v. Burke, 1987-NMCA-044, 105 N.M. 670, 735 P.2d 1176.

This section's provision permitting modification does not apply to lump sum awards under Subsection B(1)(d) of this section and Subsection B(1)(e) of this section. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.

Single sum payment. — Where the parties entered into a marital settlement agreement which provided that the husband would pay the wife monthly support in the amount of one-twelfth of $31,375 per year for the years 2005-2009, $39,000 per year for the years 2010-2014, and $23,000 per year for the years 2015-2019, and which provided that the support would end if the wife dies, the spousal support was a single sum and the district court did not have jurisdiction to modify it. Pruyn v. Lam, 2009-NMCA-103, 147 N.M. 39, 216 P.3d 804, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940.

Estate entitled to unpaid lump sum award. — Where a wife dies before actual receipt to a lump sum alimony award, her estate is entitled to collect it. Michaluk v. Burke, 1987-NMCA-044, 105 N.M. 670, 735 P.2d 1176.

Changes in circumstances of divorced parties may warrant reducing or terminating alimony obligations. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Eligibility for federal benefits not change of circumstances. — Absent findings that the husband was unable to continue to provide alimony, that the wife was no longer in financial need, or that she was capable of self support, the wife's eligibility for or receipt of federal Supplemental Security Income benefits did not amount to a change of circumstances justifying termination of alimony. Sheets v. Sheets, 1987-NMCA-128, 106 N.M. 451, 744 P.2d 924.

Contract for alimony incorporated in divorce decree becomes merged into decree and the decree is subject to modification even when it contains a provision that the agreement cannot be amended without the consent of both parties. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Authority to modify alimony award depends on law of jurisdiction which granted the award. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Due process necessary to modify alimony judgment. — Notice and a fair hearing must be afforded both parties to meet the requirements of due process, and therefore a court cannot modify a judgment when neither party has sought such relief and the issue has not been implicitly or explicitly consented to by the parties. Where the husband did not seek a modification of alimony, and neither party consented to a modification, the trial court's improper modification of future alimony was reversible error. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Alimony awards which provide for automatic increases result in alimony modifications without requiring evidence of changed circumstances and ignore the basic criteria of the recipient's need and the supporting spouse's ability to pay which must be established by the party seeking to demonstrate need. Dunning v. Dunning, 1986-NMSC-036, 104 N.M. 295, 720 P.2d 1236.

Public policy on modification of alimony awards is established by Subsection B(2) which gives the district court the authority to change any order with respect to alimony allowed to either spouse "whenever the circumstances render such change proper." Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Subsection B(2) becomes part of any agreement for alimony and the contract for alimony that is incorporated in a decree becomes merged and thus subject to equitable modification, even when it contains a provision that the agreement cannot be amended without the consent of both parties. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Continuing jurisdiction to modify and enforce. — A court having jurisdiction of a divorce proceeding has continuing jurisdiction to modify and enforce its decrees. Zarges v. Zarges, 1968-NMSC-151, 79 N.M. 494, 445 P.2d 97.

Effect of expiration of obligation. — When the obligation to pay alimony expires, there is no longer any provision for alimony remaining. Under these circumstances, the court has no power to alter or amend alimony. Because however, the wife filed the motion before the alimony expired, the court had jurisdiction to modify the award. Deeds v. Deeds, 1993-NMCA-023, 115 N.M. 192, 848 P.2d 1119.

Since district court reserved jurisdiction to modify alimony provision, it could modify it by increasing, diminishing, or abating it entirely. Mindlin v. Mindlin, 1937-NMSC-012, 41 N.M. 155, 66 P.2d 260; Lord v. Lord, 1932-NMSC-072, 37 N.M. 24, 16 P.2d 933, modified, 1933-NMSC-055, 37 N.M. 454, 24 P.2d 292.

Reservation of alimony. — So long as some alimony is reserved by the trial judge, the trial judge has continuing power to alter or amend the alimony award either upwards or downwards, as changing circumstances warrant. In re Danley, 14 Bankr. 493 (Bankr. D.N.M. 1981).

No authority to make retroactive modification of accrued and vested payments. — The authority to modify an alimony decree does not include the authority to make a retroactive modification of accrued and vested payments, unless the foreign state which entered the alimony decree had authority to do so or had done so prior to the maturity of the payments. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345.

Generally a court cannot retroactively modify a support order that has accrued and become vested. Mask v. Mask, 1980-NMSC-134, 95 N.M. 229, 620 P.2d 883; Chrane v. Chrane, 1982-NMSC-089, 98 N.M. 471, 649 P.2d 1384.

De facto marriage not ground for retroactive modification of alimony. — A "de facto marriage," whatever may be required to constitute such, does not constitute grounds for retroactively modifying or abating accrued alimony payments; however, the district court does have discretion to modify prospectively or terminate an alimony award, if the circumstances so warrant, and since the termination of alimony was largely predicated on its finding of a de facto marriage, the judgment of the trial court was reversed and the cause remanded. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345.

Improper basis for alimony reduction. — Voluntary assumption of excessive financial burdens is not a proper basis for alimony reduction. Russell v. Russell, 1984-NMSC-010, 101 N.M. 648, 687 P.2d 83.

Change in wife's knowledge of husband's retirement plan not changed circumstances. — Where the only change of circumstances with respect to a provision for alimony in a divorce decree is a change in the knowledge of the wife as to the nature of the husband's retirement plan and neither the retirement plan nor the financial condition of the parties has changed at all, the strict test for changed circumstances is not met and the original order may not be modified. Parker v. Parker, 1979-NMSC-037, 92 N.M. 710, 594 P.2d 1166.

Ability of alimony recipient to support self constitutes change. — If the recipient of alimony becomes able to support herself after the passage of a period of time, this constitutes a change in circumstances that has been held to warrant termination of the husband's alimony obligation. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Bankruptcy discharge is changed circumstance. — Where payment by the debtor of debts later discharged in bankruptcy is a significant factor in the initial support award, a bankruptcy discharge is a changed circumstance permitting modification of the award. In re Danley, 14 Bankr. 493 (Bankr. D.N.M. 1981).

Effect of bankruptcy proceedings on debts ordered to be paid in lieu of alimony. Dirks v. Dirks, 15 Bankr. 775 (Bankr. D.N.M. 1981).

No change in alimony payments absent support from recipient's paramour. — Where alimony recipient is not presently receiving any part of her support from a paramour and there is no showing that she will receive any support from him in the future because the couple has separated, no grounds exist for prospective reduction or cancellation of alimony payments. Brister v. Brister, 1979-NMSC-038, 92 N.M. 711, 594 P.2d 1167.

Increase in child support while reducing alimony payments. — Where husband asked for relief from alimony payments due to substantial change in circumstances, trial judge did not err in his unilateral decision to increase child support award in light of reduction in alimony award even though wife did not request modification of future child support payments. Altman v. Altman, 1984-NMCA-060, 101 N.M. 380, 683 P.2d 62.

D. TERMINATION OF ALIMONY.

Remarriage of spouse. — Spousal support designated as non-modifiable under 40-4-7 NMSA 1978 is not subject to the presumption of termination upon the remarriage of the receiving spouse. Galassi v. Galassi, 2009-NMCA-026, 145 N.M. 630, 203 P.3d 161.

Where the plaintiff and the defendant entered into a marital settlement agreement which was approved by the court in the final decree of dissolution of marriage; the agreement provided for the payment of spousal support by the plaintiff to the defendant; the agreement provided that the spousal support would be non-modifiable for five years; neither the agreement nor the final decree of dissolution of marriage mentioned the effect of the defendant's remarriage on the obligation to pay spousal support; the defendant remarried within the five year period; and there were no exceptional circumstances necessitating the continuation of spousal support, the obligation of the plaintiff to pay spousal support to the defendant did not terminate upon the remarriage of the defendant. Galassi v. Galassi, 2009-NMCA-026, 145 N.M. 630, 203 P.3d 161.

Cessation of alimony upon remarriage. — Where the provisions of the decree concerning alimony seem perfectly clear and unambiguous, providing, as they do, that "in the event of her remarriage said payments shall cease," the cessation of alimony did not turn on the status of the remarriage as being valid, and when the event occurred the obligation to pay alimony ceased. Chavez v. Chavez, 1971-NMSC-062, 82 N.M. 624, 485 P.2d 735.

In New Mexico, men are not legally obliged to support the wives of others, and instances in which alimony should be continued after remarriage have been characterized as being "extremely rare and exceptional." Chavez v. Chavez, 1971-NMSC-062, 82 N.M. 624, 485 P.2d 735.

When the wife contracts a subsequent marriage with another, thus creating a duty of support in him, good public policy does not demand that she continue to receive support from her first husband unless she prove exceptional circumstances. Kuert v. Kuert, 1956-NMSC-002, 60 N.M. 432, 292 P.2d 115, superseded by statute, Galassi v. Galassi, 2009-NMCA-026, 145 N.M. 630, 203 P.3d 161.

Alimony ends as of date of remarriage unless conditions extraordinary. — On the application of the divorced husband to abate support payment to the divorced wife on the ground of her remarriage, such application should be granted as of the date of her remarriage unless she proves extraordinary conditions justifying continuance of the former husband's duty to support his former wife after she has become the wife of another man, and the evaluation and effect to be given these conditions rests in the sound discretion of the trial court. Kuert v. Kuert, 1956-NMSC-002, 60 N.M. 432, 292 P.2d 115, superseded by statute, Galassi v. Galassi, 2009-NMCA-026, 145 N.M. 630, 203 P.3d 161.

Proof of remarriage establishes prima facie case for modification. — Proof of his former wife's remarriage establishes the divorced husband's prima facie case for modification of alimony payments coming due subsequent to such remarriage. Kuert v. Kuert, 1956-NMSC-002, 60 N.M. 432, 292 P.2d 115, superseded by statute, Galassi v. Galassi, 2009-NMCA-026, 145 N.M. 630, 203 P.3d 161.

Since divorced wife admitted her remarriage and no proof of such exceptional circumstances as would justify a continuance of the husband's duty to support his ex-wife subsequent to her remarriage, it appeared trial court erred in awarding wife alimony accruing subsequent to her remarriage. Kuert v. Kuert, 1956-NMSC-002, 60 N.M. 432, 292 P.2d 115, superseded by statute, Galassi v. Galassi, 2009-NMCA-026, 145 N.M. 630, 203 P.3d 161.

Some court action is necessary to abate alimony if wife marries. Mindlin v. Mindlin, 1937-NMSC-012, 41 N.M. 155, 66 P.2d 260.

Wife's impending remarriage considered in fixing alimony. — In fixing the amount of alimony, some consideration should be given to the impending remarriage of the wife, bearing in mind that alimony is intended as a method of fulfilling the husband's obligation to provide the support needed by the wife in accordance with the husband's ability to pay. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Remarriage of husband does not warrant abrogation of alimony. — Remarriage of husband, unaccompanied by showing of inability to support present wife suitably, does not warrant abrogation of alimony. Lord v. Lord, 1932-NMSC-072, 37 N.M. 24, 16 P.2d 933, modified, 1933-NMSC-055, 37 N.M. 454, 24 P.2d 292.

Alimony not revived following annulment of remarriage. — Under the facts of this case alimony was not revived following annulment of wife's remarriage as the first husband is entitled to rely on the wife's remarriage and reorder his personal and financial affairs accordingly. Chavez v. Chavez, 1971-NMSC-062, 82 N.M. 624, 485 P.2d 735.

Live-in relationship. — Although a live-in relationship is not, by itself, grounds for terminating alimony, even where parties hold themselves out as husband and wife, the economic factors of the relationship must be examined to determine whether they alter the need of the recipient spouse. Cherpelis v. Cherpelis, 1996-NMCA-037, 121 N.M. 500, 914 P.2d 637, cert. denied, 121 N.M. 444, 913 P.2d 251.

Power to abate alimony payments retroactively from date of remarriage. — Changed circumstances may justify a prospective modification, or even termination, of a prior award of alimony made by a foreign state where the courts of that state have authority to make such changes in the award, and the New Mexico courts have the power to abate retroactively accrued alimony payments from the date of the remarriage of the former spouse to whom alimony has previously been awarded in this situation as well as in the case of a New Mexico award. Hazelwood v. Hazelwood, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345.

V. GRANTING AND MODIFYING CHILD CUSTODY AND SUPPORT.

A. IN GENERAL.

Granting and modifying child custody and support. — The Indian Child Welfare Act, 25 U.S.C. §1901 does not apply to give a tribal court exclusive jurisdiction over custody disputes in divorce proceedings. Cherino v. Cherino, 2008-NMCA-024, 143 N.M. 452, 176 P.3d 1184.

Trial court exclusive jurisdiction. — Trial courts are given exclusive jurisdiction of all matters relating to the guardianship, care, custody, maintenance, and education of the children. Rhinehart v. Nowlin, 1990-NMCA-136, 111 N.M. 319, 805 P.2d 88.

District court has jurisdiction to modify and change existing orders regarding visitation rights and support obligations. Barela v. Barela, 1978-NMSC-047, 91 N.M. 686, 579 P.2d 1253.

Restrictions religious practices. — In determining whether a parent should be restricted from practicing or encouraging a child in a religious belief or practice, the trial court must consider whether there exists detailed factual evidence demonstrating that the conflicting beliefs or practices of the parents pose substantial physical or emotional harm to the child, whether restricting the religious interaction between a parent and the child will necessarily alleviate the harm, and whether such restrictions are narrowly tailored so as to minimize interference with the parent's religious freedom. Khalsa v. Khalsa, 1988-NMCA-013, 107 N.M. 31, 751 P.2d 715, cert. denied, 107 N.M. 16, 751 P.2d 700.

Agreements between parents and third parties regarding the guardianship, care, custody, maintenance or education of children are subject to judicial modification. Implicit in every such agreement is the right of the parties and the court to amend or abrogate such agreements when circumstances necessitate and the best interests and welfare of the child so require. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom. Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794.

Domicile of minor is same as domicile of parent with whom he lives, and the ultimate facts necessary to sustain a conclusion of domicile are physical presence in the state at some time in the past and concurrent intention to make the state one's home. The lower court found physical presence in the state, but it failed to find that the requisite intent existed, and accordingly jurisdiction based on domicile of the child was lacking. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.

Custody orders remain effective though court without jurisdiction to grant divorce. — Although the parties are not divorced due to the trial court's lack of jurisdiction as required in 40-4-5 NMSA 1978, it does not follow that the provisions pertaining to custody, child support and visitation are void. Where the trial court had jurisdiction over these issues, and no issue on the appeal involved the court's orders concerning the children, the orders of the court pertaining to custody, support and maintenance and visitation remain in effect and are binding on the parties unless modified by further order of the trial court. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

Judicial immunity from personal liability where court had jurisdiction to order commitment. — The court has wide discretion in respect to the guardianship, care and custody of minor children whose parents are parties to a divorce action in which custody of the children is involved. Here the parents were the natural guardians, were parties to the divorce action, and custody of the children was involved. The parents were before the court, and at one juncture in the proceedings a child was personally present in court. It may be that the order committing the child to the state hospital was improvident and erroneous, but it was entered in a cause over which the court had jurisdiction of the subject matter and the parties, and therefore, the rule of judicial immunity from personal liability in damages arising out of the entry of such order applies. Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957).

No abuse of discretion if law and procedure followed. — Where trial court temporarily reduced support payments and made custodial changes and in doing so followed both the applicable principles of law and regular procedure in making its findings of fact, and where its findings were supported by substantial evidence, the results were pursuant to judicial discretion; not in its abuse. Fox v. Doak, 1968-NMSC-031, 78 N.M. 743, 438 P.2d 153.

Court required to give full force and effect to Missouri decree. — Where the trial court found that $3,900 was owed in delinquent alimony based on the $150 per month provided by the parties' Missouri decree, but ordered the husband to pay $100 per month up to $1,500 and deferred payment on the remaining $2,400, and made no finding on child support arrearages, which totalled $8297.65 through June, 1974, its actions constituted reversible error; since New Mexico gives the Missouri divorce decree full faith and credit, the trial court was obliged to give full force and effect to the accrued alimony and child support at the time of the district court hearing. 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, and should have awarded a judgment in favor of the wife for $3,900 in delinquent alimony and made a finding on delinquent child support. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Court has 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. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Consideration of support related to change of custody. — The husband's action for a change of custody implicitly involved the consideration of future child support if a change of custody were made, and although it would have been better practice to plead for modification of child support when seeking a change of custody, failure to do so did not preclude consideration of the issue on due process grounds since the questions of change of custody and child support are so inextricably related. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

B. CUSTODY.

Continuing jurisdiction. — As long as a court continues to have jurisdiction over either the children or both parents, it has continuing jurisdiction to hear all matters relating to custody. Murphy v. Murphy, 1981-NMSC-069, 96 N.M. 401, 631 P.2d 307.

Abuse of discretion required before reversal of child custody. — Although placing restraints upon a person's free movements is a questionable practice generally, nevertheless where a court in its discretion and in the best interests of the children concludes that they should be reared where guidance can be had from the father while living with the mother, the court cannot reverse unless the conclusion is a manifest abuse of discretion under the evidence in the case. Jones v. Jones, 1960-NMSC-106, 67 N.M. 415, 356 P.2d 231.

Trial court cannot be reversed. — The trial court is vested with great discretion in awarding the custody of young children and the court cannot reverse unless the court's conclusion about the best interests of the children is a manifest abuse of discretion under the evidence in the case. Kotrola v. Kotrola, 1968-NMSC-104, 79 N.M. 258, 442 P.2d 570.

Judgment of sister state awarding custody is entitled to full faith and credit on the state of facts then existing, but if subsequent thereto a substantial change of conditions has occurred calculated to affect the child's welfare, the court may in a later hearing render such decree as the child's welfare requires. The discretion of the trial court in child custody matters is wide. Terry v. Terry, 1970-NMSC-135, 82 N.M. 113, 476 P.2d 772; Murphy v. Murphy, 1981-NMSC-069, 96 N.M. 401, 631 P.2d 307.

In personam jurisdiction over parents sufficient to determine custody. — Where the district court had in personam jurisdiction over both parents in divorce action, it had jurisdiction to determine child custody. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Alternative bases and concurrent jurisdiction. — Not only may there be alternative bases of jurisdiction over custody in a single state, but several states may have concurrent jurisdiction. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Court's jurisdiction not expanded from one type proceeding to another. — Under this section the power of the court to make a final order of custody is predicated on the existence of a proceeding for the disposition of children; the section does not expand the court's jurisdiction established for one type of proceeding to the other types enumerated therein, nor does it address the initial subject matter jurisdiction of the court to hear the types of proceedings enumerated, but only determines the power of the court once jurisdiction is established. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.

Trial court has wide discretion in matter of awarding custody of children in divorce actions; and the welfare of the child is the primary consideration in making the award. Urzua v. Urzua, 1960-NMSC-094, 67 N.M. 304, 355 P.2d 123.

Determination of custody by trial judge entitled to great weight. — The determination of custody by the trial judge who saw the parties, observed their demeanor and heard the testimony, is entitled to great weight. Kotrola v. Kotrola, 1968-NMSC-104, 79 N.M. 258, 442 P.2d 570.

No violation of due process where both parties given opportunity to be heard. — There was no violation of due process at a change of custody hearing where the trial court first heard the husband's evidence regarding custody, including the testimony of the wife as a hostile witness, the wife's attorney extensively cross-examined the husband, and although the wife's attorney had waived his right to cross-examine the wife when she was called as a hostile witness by the husband, her testimony as to custody surfaced in her counterclaim for contempt; a full and fair opportunity to be heard was afforded both parties in this case. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

In custody cases, two distinct elements are always present: (1) the child-state relationship, sometimes referred to as status and (2) the respective claims of the parents to the child's custody. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Court may make independent investigation in child custody hearing. — Where the court is not satisfied with the evidence presented with reference to custody of minor children, he may make independent investigation, but any witnesses called should appear at a hearing before the court or before a master appointed by him for the purpose. Martinez v. Martinez, 1946-NMSC-003, 49 N.M. 405, 165 P.2d 125.

Controlling influence welfare and best interests of child. — The trial court had a wide discretion in determining whether a custodial decree should be modified. In making that determination, the controlling influence should be the welfare and best interests of the child. Fox v. Doak, 1968-NMSC-031, 78 N.M. 743, 438 P.2d 153.

The best interests of the child is the principal consideration in determining custody, as well as in procedures seeking change in custody orders. Stone v. Stone, 1968-NMSC-116, 79 N.M. 351, 443 P.2d 741.

The best interest of the children is of paramount consideration in determining the custody of minor children, and the same considerations form the basis for modifying a custodial decree. Kotrola v. Kotrola, 1968-NMSC-104, 79 N.M. 258, 442 P.2d 570.

The principal guide to a decision under this section to modify a divorce decree is the welfare and best interests of the children. Tuttle v. Tuttle, 1959-NMSC-063, 66 N.M. 134, 343 P.2d 838.

Controlling inquiry of the trial court in settling any custody dispute is the best interests of the child. Schuermann v. Schuermann, 1980-NMSC-027, 94 N.M. 81, 607 P.2d 619.

In removing restraining order against visitation. — Where at a contempt hearing the trial court found and concluded that restraining order against the appellee from visiting the stepson should be dissolved, the court exercised proper discretion in refusing to hold appellee in contempt, and in removing the previous restraining order. The paramount consideration was the welfare of the minor. Nesbit v. Nesbit, 1969-NMSC-064, 80 N.M. 294, 454 P.2d 776.

Best interests not measured altogether by material and economic factors. — When considering the right to custody, the welfare and best interest of the child is not measured altogether by material and economic factors - parental love and affection must find some place in the scheme and we all know this covers a multitude of weaknesses. Shorty v. Scott, 1975-NMSC-030, 87 N.M. 490, 535 P.2d 1341.

Racial consideration alone not proper determination of best interests. — In suit to change custody of minor children, racial considerations alone cannot properly determine what is in the best interests of children, or what is most consonant with their welfare or physical and mental well being, and where lower courts found that divorced wife had shown instability in her attitude toward the moral training of her children by the way she has lived with a black man, and that the children would be better reared with members of their own race, such finding was an abuse of that court's discretion. Boone v. Boone, 1977-NMSC-042, 90 N.M. 466, 565 P.2d 337.

Parents have natural and legal right to custody of their children. — This right, a prima facie and not an absolute right, creates a presumption that the welfare and best interests of the minor child will best be served in the custody of the natural parents and casts the burden of proving the contrary on the nonparent. Shorty v. Scott, 1975-NMSC-030, 87 N.M. 490, 535 P.2d 1341.

Parental right doctrine given prominent consideration. — In a custody dispute where the opposing parties are the natural parents, or one of them, versus grandparents or other persons having no permanent or legal right to custody of the minor child, "parental right" doctrine which holds that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal right to custody, is to be given prominent, though not controlling, consideration. Shorty v. Scott, 1975-NMSC-030, 87 N.M. 490, 535 P.2d 1341.

Both parents on equal footing. — In a custody case in which the parents are opposed or in a case between parents for modification of a custody decree, the welfare and best interests of the minor child is the paramount consideration. A consideration of parental rights is unnecessary because both parties are on equal footing in the eyes of the law, and though a specific finding of unfitness on the part of the parent to be denied custody is not necessary in all such cases, parental unfitness would be consideration in determining the welfare and best interest of the minor child. Shorty v. Scott, 1975-NMSC-030, 87 N.M. 490, 535 P.2d 1341.

Express findings supported by substantial evidence necessary where natural parent denied custody. — As against a third person, a natural parent would be entitled as a matter of law to custody of the minor child unless there has been established on the parent's part neglect, abandonment, incapacity, moral delinquency, instability of character or inability to furnish the child with needed care, or unless it has been established that such custody otherwise would not be in the best welfare and interest of the child, and the trial court must make express findings supported by substantial evidence if the natural parent is to be denied custody, not only that the parent is unfit, but that the third person seeking to obtain or retain custody is fit and the welfare and best interests of the child would best be served by giving custody to that third person. In a custody dispute between a natural mother and the children's grandmother where there were no express findings concerning the fitness of the parties and the evidence adduced at trial was meager, the case was reversed and remanded for a new proceeding to be held consistently with the proper presumption and burden of proof. Shorty v. Scott, 1975-NMSC-030, 87 N.M. 490, 535 P.2d 1341.

Expressed wish of minor as to custody as considered factor. — The prevailing and correct rule concerning the proper weight to be given to the expressed wish of a minor whose custody is at issue is that in cases of children of sufficient age, discretion and intelligence to exercise an enlightened judgment, their wishes concerning their own custody are a factor which should be considered by the court in arriving at its conclusion on the issue, but is in no sense controlling. Stone v. Stone, 1968-NMSC-116, 79 N.M. 351, 443 P.2d 741.

Proof of desire, fitness and ability of guardian. — There must be proof of the desire, fitness and ability of the persons in whom custody is placed and there shall be opportunity to bring before the court matters in rebuttal of such proof, if any there be. Bell v. Odil, 1956-NMSC-005, 60 N.M. 404, 292 P.2d 96.

Child custody award not to be based on confidential report. — A trial court may not award custody of minor children in a divorce suit on the basis of confidential report of a public welfare office employee which is based on unsworn testimony and the contents of which are not evidence in the case and have not been disclosed to the parties. Martinez v. Martinez, 1946-NMSC-003, 49 N.M. 405, 165 P.2d 125.

Erroneous awarding of custody based on confidential report waived. — Even though it was error for court to determine issue of awarding custody of minor on the basis of a confidential report from a welfare employee which did not constitute evidence in the case, where the party did not call the court's attention to the error, such party could not make an issue of it for the first time on appeal. Martinez v. Martinez, 1946-NMSC-003, 49 N.M. 405, 165 P.2d 125.

Custody of minor child should not be granted to nonresident unless it is shown that the welfare of the child will be greatly benefited. Urzua v. Urzua, 1960-NMSC-094, 67 N.M. 304, 355 P.2d 123.

Court authority to grant visitation rights. — The granting of visitation rights to a person or persons who the trial court determines are significant and important to the welfare of the children is a part of the trial court's grant of power. Rhinehart v. Nowlin, 1990-NMCA-136, 111 N.M. 319, 805 P.2d 88.

Trial court has the power and discretion to grant visitation rights to a stepmother, where visitation is in the best interests and welfare of the children. Rhinehart v. Nowlin, 1990-NMCA-136, 111 N.M. 319, 805 P.2d 88.

Effect of custodial order on right to travel or relocate. — An order continuing child custody with the mother, contingent upon her returning to New Mexico from California with the child and complying with visitation rights granted to the father, did not unlawfully infringe on the mother's right to travel or to relocate. Alfieri v. Alfieri, 1987-NMCA-003, 105 N.M. 373, 733 P.2d 4.

As a general rule, the noncustodial parent's right to visitation should not prevent the custodial parent from moving when the reasons for the move are legitimate and the best interest of the children will be served by accompanying the custodial parent. Newhouse v. Chavez, 1988-NMCA-110, 108 N.M. 319, 772 P.2d 353, cert. denied, 108 N.M. 197, 769 P.2d 731 (1989).

Mother could not be deprived of her right, as sole custodian, to move herself and her children, where there was no evidence of bad faith in the mother's conduct in relocating to another city, and the trial court made no findings addressing the interest of the children in their relationship with mother, their younger sibling or their stepfather, or as to the independent relationships within the family. Newhouse v. Chavez, 1988-NMCA-110, 108 N.M. 319, 772 P.2d 353, cert. denied, 108 N.M. 197, 769 P.2d 731 (1989).

Order alternating custody annually within court's discretion. — An order which placed custody of girl of nine years with the father for one year, then with the mother for one year, alternating annually, was within the wide discretion of the court. Edington v. Edington, 1947-NMSC-002, 50 N.M. 349, 176 P.2d 915.

Evidence of child's school attendance found substantial. — Evidence, which showed that the child had not been able to function properly while in school in California due to various emotional problems precipitated from the environment in which he had been living and that these problems were alleviated to a great extent when the boy was with the appellee and had begun attending school in Albuquerque on a regular basis, with special assistance, found to be substantial. Cole v. Adler, 1971-NMSC-053, 82 N.M. 599, 485 P.2d 355.

C. MODIFICATION OF CUSTODY.

Trust for maintenance and support authorized. — This section and 40-4-14 NMSA 1978 authorize the setting apart of a portion of each spouse's property and the creation of a custodial trust for the maintenance and support of minor children in a divorce and support proceeding. Blake v. Blake, 1985-NMCA-009, 102 N.M. 354, 695 P.2d 838.

No abuse of discretion if finding supported by substantial evidence. — The rule applicable in cases seeking a change of custody is to the effect that the trial court has discretion in its determination of custody and that appellate court will not interfere or reverse unless there is not substantial evidence to support the court's findings and conclusions, or there has been a manifest abuse of discretion. Stone v. Stone, 1968-NMSC-116, 79 N.M. 351, 443 P.2d 741.

Modification of joint custody by awarding primary physical custody to father. — Where father filed for a change of custody of his two children, requesting that he be awarded sole legal custody and that he be permitted to relocate to another state with his children, the district court's order, awarding primary physical custody to father and permitting father to relocate children to another state, intended only to modify, not terminate, joint custody, and the district court did not abuse its discretion in modifying joint custody because it considered all of the factors necessary in determining whether relocation was in the best interests of the children. Hopkins v. Wollaber, 2019-NMCA-024.

Court's power and authority to modify custody award. — Where in a child custody case a court finds a change of circumstances and conditions, the court's hands are not tied and it has power and authority to modify its previous custody award as it deemed best for the child. Terry v. Terry, 1970-NMSC-135, 82 N.M. 113, 476 P.2d 772.

Trial courts are vested with wide discretion in determining whether a custodial decree should be modified. Cole v. Adler, 1971-NMSC-053, 82 N.M. 599, 485 P.2d 355.

Court not to modify order without hearing. — The provision of this section that the court "may modify and change any order in respect to the guardianship, care, custody, maintenance or education of said children, whenever circumstances render such change proper" does not mean that the court can act without a hearing, after notice to all necessary parties, and after giving them an opportunity to present evidence in connection therewith. Tuttle v. Tuttle, 1959-NMSC-063, 66 N.M. 134, 343 P.2d 838.

Usual and ordinary procedures to be adhered to. — Before any parent or other person having legal custody is deprived of the same, or any change made therein, the usual and ordinary procedures must be adhered to. Tuttle v. Tuttle, 1959-NMSC-063, 66 N.M. 134, 343 P.2d 838.

Before any parent or other person having legal custody is deprived of the same, or any change made therein, the usual and ordinary procedures requiring pleadings and notice must be adhered to. Padgett v. Padgett, 1960-NMSC-123, 68 N.M. 1, 357 P.2d 335.

Pleadings and procedure upon modification of custody award are, and because of their nature should be, far more elastic than is the case with usual adversary proceedings. The discretion of the court in these matters is far-reaching. Terry v. Terry, 1970-NMSC-135, 82 N.M. 113, 476 P.2d 772; Bell v. Odil, 1956-NMSC-005, 60 N.M. 404, 292 P.2d 96.

Custody may be reopened upon showing of mistake. — A divorce case may be reopened at any time when a party to the case files an application showing that the court made a mistake in its award of custody of a minor child. Martinez v. Martinez, 1946-NMSC-003, 49 N.M. 405, 165 P.2d 125.

Must show change of circumstances for change of custody. — Change of custody is impermissible except upon showing of change of circumstances. Stone v. Stone, 1968-NMSC-116, 79 N.M. 351, 443 P.2d 741.

The child's best interests is the principal consideration of the court in initially determining a child's custody, as well as in effecting a change in custody, and a change of custody is permissible only upon a showing of a change of circumstances, even if decree provided otherwise. Specter v. Specter, 1973-NMSC-047, 85 N.M. 112, 509 P.2d 879.

Every presumption in favor of reasonableness of original decree. — When modification of divorce decree is sought with respect to provisions for custody of a minor child, the moving party is visited with the burden of showing that circumstances have so changed as to merit the change, every presumption being, however, in favor of the reasonableness of the original decree. Edington v. Edington, 1947-NMSC-002, 50 N.M. 349, 176 P.2d 915.

Custody not changed where conditions essentially same. — Where the evidence discloses that other than the fact of the remarriage of the mother, the stability of the mother's situation, and an improved change in the nature of the residences of both parents, essentially the same conditions existed at the time of the modification hearing as existed at the time of the divorce there were insufficient grounds to support the change of the child custody arrangement. Seeley v. Jaramillo, 1986-NMCA-100, 104 N.M. 783, 727 P.2d 91.

Though there is no statutory requirement that a change of circumstances must be shown before a custody decree will be modified or changed, it is well settled in this jurisdiction that a showing of changed circumstances is a prerequisite to modification or change of custody. The change of circumstance must be shown to be of a material nature before a modification or change is justified, and the burden of showing a material change of circumstances rests upon the moving party. Davis v. Davis, 1972-NMSC-045, 83 N.M. 787, 498 P.2d 674.

Change in visitation rights. — The language of the court in reviewing an order modifying alimony payments and determining that no change in circumstances had been shown is equally applicable where visitation rights are involved and where plaintiff makes no claim of changed circumstances, the trial court's order should not be disturbed. Kerley v. Kerley, 1961-NMSC-159, 69 N.M. 291, 366 P.2d 141.

Change of circumstances necessary where foreign decree presumed reasonable. — In a change of custody action between two parties whose original divorce and custody decree was entered in a foreign state, the moving party must show a change of circumstances in light of the presumption of reasonableness of the foreign divorce decree; where the change of custody was based upon substantial evidence it did not constitute an abuse of discretion by the trial court. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Modification reversed. — Judgment changing sole custody in the mother to joint legal custody, unless and until the mother was able to comply with a parenting plan agreed to by the parties, was reversed, where the trial court's findings failed to resolve basic issues material and necessary to a determination that modification of the initial custody agreement to joint custody was in the best interests of the children. Newhouse v. Chavez, 1988-NMCA-110, 108 N.M. 319, 772 P.2d 353, cert. denied, 108 N.M. 197, 769 P.2d 731 (1989).

Awarding of child support rests within sound discretion of court. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Support obligations are for benefit of children, and the court should not punish the children for the wrongdoing of the mother. Barela v. Barela, 1978-NMSC-047, 91 N.M. 686, 579 P.2d 1253.

Support obligations are for the benefit of the children, and if the custodial parent does not have the financial ability to support the children, the support obligation should not be reduced. Barela v. Barela, 1978-NMSC-047, 91 N.M. 686, 579 P.2d 1253.

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.

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.

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.

D. CHILD SUPPORT.

Court unauthorized to withhold support until visitation allowed. — The trial court acted beyond its statutory authority in establishing the payment of child support into a trust which provided for the parties' children's post-minority education, until the mother allowed reasonable visitation rights. Dillard v. Dillard, 1986-NMCA-088, 104 N.M. 763, 727 P.2d 71.

Judicial district's child support guidelines are taken into consideration by the trial court with the other circumstances of a case when awarding child support; these guidelines are not mandatory amounts that the trial court must use in setting child support payments. Chavez v. Chavez, 1982-NMSC-104, 98 N.M. 678, 652 P.2d 228.

Present ability to pay essential in contempt sentence. — Present ability to pay arrears of monthly sums allowed for support of children is essential to validity of a contempt sentence to continue until payment, and, where record shows that such sentence was imposed in absence of ability to pay, the sentence will not be sustained on habeas corpus. Ex parte Sedillo, 1929-NMSC-038, 34 N.M. 98, 278 P. 202.

Children not to be denied trust benefits as punishment of delinquent mother. — Where the court has set aside a portion of the common property of divorced parents for the support of their children and placed it in the hands of a trustee, the children should not be deprived of the benefits of such provision by way of punishment of the delinquent mother. Fullen v. Fullen, 1915-NMSC-091, 21 N.M. 212, 153 P. 294, superseded by statute Fairchild v. United Serv. Corp., 1948-NMSC-048, 52 N.M. 289, 197 P.2d 875.

Parent not entitled to carry-back credit against delinquent support payments. — While a parent is entitled to credit against support payments falling due after social security payments to his child, which resulted from his contribution to the social security fund and his retirement, he is not entitled to a carry-back credit against support payments that were delinquent when the social security payments began. Mask v. Mask, 1980-NMSC-134, 95 N.M. 229, 620 P.2d 883.

Both parents on equal footing. — Although a trial court should consider the various circumstances that bear on both parents' ability to provide needed support, both parents still have the duty to support their minor children. Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505.

Consideration, for support, of disability benefits. — Trial court was not precluded from considering the husband's disability benefits as part of his financial resources in determining a reasonable amount of child support, where the parties had previously agreed not to consider the disability benefits and the court made this agreement explicit in a subsequent order. Hopkins v. Guin, 1986-NMCA-097, 105 N.M. 459, 734 P.2d 237, cert. quashed, 105 N.M. 395, 733 P.2d 364 (1987).

Father in contempt not released on habeas corpus where separation regarded permanent. — A father adjudged in contempt for failure to pay monthly sums decreed for support of children will not be discharged on habeas corpus on the ground that court had no jurisdiction to render the decree, where it appears that both parties and the court regarded the separation as permanent, although not expressly alleged in the complaint. Ex parte Sedillo, 1929-NMSC-038, 34 N.M. 98, 278 P. 202.

Child support enforceable by attachment. — Court may enforce by attachment as for contempt its decree for monthly payments for support of children. Ex parte Sedillo, 1929-NMSC-038, 34 N.M. 98, 278 P. 202.

Scope of review on appeal of child support award is limited to examining the record only to determine if the trial court abused its discretion by fixing an amount contrary to all reason. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

E. MODIFICATION OF CHILD SUPPORT.

Construed with 40-4-11.1 NMSA 1978. — The legislature intended 40-4-11.1 NMSA 1978 to update and make uniform throughout the state the amount of the child support obligation based on the income of the parents, but did not intend to abolish the requirement that the party seeking modification make the traditional showing of a substantial change in circumstances, harmonizing 40-4-11.1 NMSA 1978 with 40-4-7 NMSA 1978 and giving effect to both. Perkins v. Rowson, 1990-NMCA-089, 110 N.M. 671, 798 P.2d 1057, cert. denied, 110 N.M. 641, 798 P.2d 591.

Applicable date for modification of child support payments is date of filing of petition or pleading rather than the date of hearing, unless there is an unreasonable delay in bringing the case to trial by a party or unless there are unusual circumstances. Montoya v. Montoya, 1980-NMSC-122, 95 N.M. 189, 619 P.2d 1233.

Modification of child support payments discretionary. — Whether to modify an award of support payments is in the discretion of the trial judge. Barela v. Barela, 1978-NMSC-047, 91 N.M. 686, 579 P.2d 1253.

Local district court guidelines should be consulted in determining modifications of child support payments. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958 (decided under prior law).

Role of appellate court. — Any change in child support is a matter within the discretion of the trial court and appellate review is limited to examining the record only to determine if the trial court abused its discretion by fixing an amount contrary to all reason. Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505; Henderson v. Lekvold, 1983-NMSC-001, 99 N.M. 269, 657 P.2d 125.

Credit for pre-order payments invalid modification. — The trial court erred in crediting the husband with child support "prepayments." Parties may not, by private agreement, modify future child support obligations; rather, modification of future child support is a matter to be determined by the courts. Ingalls v. Ingalls, 1994-NMCA-148, 119 N.M. 85, 888 P.2d 967.

A husband who made unauthorized "prepayments" of child support need not lose credit for his prepayments; the husband could file a petition to modify his future child support obligations and, in such a case, an agreement between the parties to the effect that the husband would "prepay" child support in exchange for a reduction in such payments in the future, coupled with actual payment in this manner, should receive serious consideration by the trial court in weighing prospective modification. Ingalls v. Ingalls, 1994-NMCA-148, 119 N.M. 85, 888 P.2d 967.

Stipulated agreements setting child support amounts modifiable. — Because the rights of the children, as innocent third parties, are involved in stipulated agreements setting child support amounts, to make such agreements nonmodifiable would not be in the best interests of the children and is therefore against the strong public policy of this state. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Past child support payments not modifiable. — Under former 22-7-6(C) (now 40-4-7G) NMSA 1978, a court does not have discretion to modify past, as distinguished from future, child support payments and arrearages once accrued cannot be forgiven. Gomez v. Gomez, 1978-NMSC-093, 92 N.M. 310, 587 P.2d 963, overruled on other grounds Montoya v. Montoya, 1980-NMSC-122, 95 N.M. 189, 619 P.2d 1233.

Burden on party seeking to modify child support. — In a petition to modify the amount of child support, the burden of proof is on the moving party to satisfy the court that the circumstances have so changed as to justify the modification. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958; Schuermann v. Schuermann, 1980-NMSC-027, 94 N.M. 81, 607 P.2d 619.

Presumption favors reasonableness of original decree. — Every presumption is in favor of the reasonableness of the original decree in a proceeding to modify a provision for the custody of minor children. Schuermann v. Schuermann, 1980-NMSC-027, 94 N.M. 81, 607 P.2d 619.

Issue presented by petition to modify. — The issue before any trial court on a petition to modify the amount of child support payments is whether there has been a showing of a change in circumstances that is substantial. Smith v. Smith, 1982-NMSC-088, 98 N.M. 468, 649 P.2d 1381.

Burden of proof is on the petitioner to satisfy the trial court that the circumstances have substantially changed, thereby justifying the requested modification. Smith v. Smith, 1982-NMSC-088, 98 N.M. 468, 649 P.2d 1381.

Retroactive application of increase. — A child support increase should not apply retroactively where the trial court is dealing with present needs. Chavez v. Chavez, 1982-NMSC-104, 98 N.M. 678, 652 P.2d 228.

Change must be substantial. — There must be a substantial change of circumstances to warrant a modification of child support occurring subsequent to the adjudication of the previous award. Chavez v. Chavez, 1982-NMSC-104, 98 N.M. 678, 652 P.2d 228.

If decree modified then changes measured from modification. — A trial court should not go back to the date a divorce decree was originally entered to determine a material change in circumstances, where a modified decree was entered for ascertaining the amount of child support. The doctrine of res judicata prevents the trial court from considering any matters prior to the modified decree. Smith v. Smith, 1982-NMSC-088, 98 N.M. 468, 649 P.2d 1381).

Requirements for change of circumstances. — For a change in the amount of child support ordered, this section requires a showing of changed circumstances; the change must be substantial, materially affecting the existing welfare of the child, and must have occurred since the prior adjudication where child support was originally awarded. Unser v. Unser, 1974-NMSC-063, 86 N.M. 648, 526 P.2d 790.

The issue before a trial court on a petition to modify the amount of child support is whether there has been a showing of a change in circumstances; the change must be substantial, materially affecting the existing welfare of the child, and must have occurred since the prior adjudication where child support was originally awarded. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958; Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505.

Totality of circumstances needs considered in modifying child support award. Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505.

Effect on support of bad faith reduction in income. — Trial court's refusal to reduce the husband's child support obligation was not an abuse of discretion, where he was found not to have acted in good faith when he voluntarily made a career change which resulted in a major reduction of his income. Wolcott v. Wolcott, 1987-NMCA-038, 105 N.M. 608, 735 P.2d 326, cert. denied, 105 N.M. 618, 735 P.2d 535.

Dramatic increase in father's income as substantial change in circumstances. — A trial court's adamant refusal to consider a dramatic increase in a father's income as a substantial change in circumstances was arbitrary, capricious and beyond the bounds of reason. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Prospective changes in financial condition not ground for modification. — Prospective changes in a parent's financial condition are not grounds for modification of a child support decree. Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505.

No decrease in support upon voluntary assumption of excessive financial burdens. — A parent's duty to support his children is not decreased when a parent voluntarily assumes an excessive financial burden only for his convenience and investment. Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505.

Changes in total number of dependents being supported considered. — Evidence of changes in the total number of dependents being supported by both parties demands the attention of the court. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Whether custodial parent fostering good relations between noncustodial parent and children considered. — On a motion to modify child support payments, it is proper for the trial court to inquire as to whether the custodial parent is fulfilling the duty to foster good relations between the noncustodial parent and the children, as this may be considered as a factor bearing on the amount of child support that is granted over and above the normal necessities. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

Where a custodial parent is financially able to support the children and the children refuse to visit their other parent due to the emotional influence of the custodial parent, the court in its discretion has the power to terminate future support obligations of the noncustodial parent. Gomez v. Gomez, 1978-NMSC-093, 92 N.M. 310, 587 P.2d 963, overruled on other grounds by Montoya v. Montoya, 1980-NMSC-122, 95 N.M. 189, 619 P.2d 1233.

Impact of subsequent remarriage on support obligation. — A subsequent remarriage by either or both of the parties may have some effect upon the financial resources available to support and maintain the children of divorced parents. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958; Henderson v. Lekvold, 1980-NMSC-133, 95 N.M. 288, 621 P.2d 505.

Military allowances considered in determining change of circumstances. — Military allowances are proper sources of income that a state trial court can constitutionally consider in determining whether there has been a financial change of circumstances sufficient to warrant an increase of child support payments. So long as the action of the state court does not frustrate a substantial interest by preventing the military payments from reaching the designated beneficiary, the federal supremacy clause does not demand that state law be overridden. Peterson v. Peterson, 1982-NMSC-098, 98 N.M. 744, 652 P.2d 1195.

Relief from child support where new facts. — Court may relieve defendant of the payment of future installments for child support, if new facts make such a change proper. Quintana v. Quintana, 1941-NMSC-038, 45 N.M. 429, 115 P.2d 1011; Lord v. Lord, 1932-NMSC-072, 37 N.M. 24, 16 P.2d 933, modified, 1933-NMSC-055, 37 N.M. 454, 24 P.2d 292.

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.

On appeal from denial of petition to modify child support the reviewing court should decide whether the findings of the trial court are supported by substantial evidence, whether any refused findings should have been made and whether there was an abuse of discretion by the trial court. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737, 580 P.2d 958.

F. POST-MAJORITY CHILD SUPPORT.

Legislative intent behind Subsection C of this section is that post-minority education agreements in marital settlements may now merge into the divorce decree and the court has jurisdiction to enforce the agreement. Weddington v. Weddington, 2004-NMCA-034, 135 N.M. 198, 86 P.3d 623.

Once the parties have voluntarily agreed to provide for post-secondary education of their children, there exists an agreement that the district court can interpret, if it is ambiguous, and also enforce. Weddington v. Weddington, 2004-NMCA-034, 135 N.M. 198, 86 P.3d 623.

Enforcement of parties' agreement regarding post-minority education is now governed by this section and the district court has jurisdiction to enforce the agreement after employing contract construction tools. Weddington v. Weddington, 2004-NMCA-034, 135 N.M. 198, 86 P.3d 623.

Post-emancipation child support. — A parent's support obligation will continue past a child's emancipation only if the child is emancipated by age and still attending high school or if the parties to a marriage dissolution agree in writing to continue support. Diamond v. Diamond, 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578, cert. granted, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269.

Court cannot provide for children who have passed the age of majority. Psomas v. Psomas, 1982-NMSC-154, 99 N.M. 606, 661 P.2d 884, overruled in part by Walentwoski v. Walentowski, 1983-NMSC-097, 100 N.M. 484, 672 P.2d 657.

Trial court does not have jurisdiction over post-minority education for children. Christiansen v. Christiansen, 1983-NMSC-058, 100 N.M. 102, 666 P.2d 781.

Agreement for post-minority child support. — The district court has the power, arising from its original jurisdiction over matters sounding in contract, to enforce valid agreements for post-minority support. Ottino v. Ottino, 2001-NMCA-012, 130 N.M. 168, 21 P.3d 37, cert. quashed, 131 N.M. 363, 36 P.3d 953.

A marriage settlement agreement covering post-minority support was not rendered unenforceable by its inclusion in the final divorce decree. Ottino v. Ottino, 2001-NMCA-012, 130 N.M. 168, 21 P.3d 37, cert. quashed, 131 N.M. 363, 36 P.3d 953.

Application of new age of majority to decree not unconstitutional. — Although trial court had continuing jurisdiction to modify divorce decree containing child custody provisions under the provisions of this section, that decree was considered final and not within the meaning of a "pending case" in N.M. Const., art. IV, § 34. Therefore, application of 28-6-1 NMSA 1978, which by its operation freed divorced father from making support payments to daughter who had reached age of 18, and thus, under the new section, was no longer a minor, was not unconstitutional. Phelps v. Phelps, 1973-NMSC-044, 85 N.M. 62, 509 P.2d 254.

Disposition of property or funds for children upon reaching majority. — This statute only confers power on district court to provide for the children during their minority, and when they reach the age of 21 (now 18) years all power over them ceases and the district court must at this latter time make disposition of any property or funds created for the maintenance and education of such children. In re Coe's Estate, 1952-NMSC-078, 56 N.M. 578, 247 P.2d 162.

This section precludes the court from retaining control of any provision in decrees providing funds for post-minority education. When the children reach majority, the court must dispose of and relinquish control over any of the remaining funds created for their education. Spingola v. Spingola, 1979-NMSC-079, 93 N.M. 598, 603 P.2d 708 (decided under prior law).

Duty of support for disabled child. — Parents have a common law continuing duty to support a severely disabled child if the child was disabled before reaching the age of majority, and the court had authority to enforce such duty. Cohn v. Cohn, 1997-NMCA-011, 123 N.M. 85, 934 P.2d 279.

Substantial evidence of disability and need for continued child support. — Where petitioner filed a motion to establish child support for her nineteen-year-old disabled son, evidence presented at trial that son was born with a genetic disorder and a clubbed foot, had an IQ in the severely impaired range, tested in the mildly to moderately impaired level in learning and memory skills, language functioning, visual, and motor skills, and was limited in all adaptive functioning areas, which include motor skills, social communication, personal living skills, and community living skills, provided a substantial evidentiary basis for the district court to conclude that son was disabled upon reaching majority and was an adult entitled to continuing child support. Gonzales v. Shaw, 2018-NMCA-059.

Trial court did not abuse its discretion in refusing to offset social security benefit. — Where petitioner filed a motion to establish child support for her nineteen-year-old disabled son, and where respondent argued that the district court erred in not deducting son's receipt of social security disability funds in making the court's child support calculation, the district court did not abuse its discretion in its child support calculation, because the social security funds received by son were the result of son's personal disability and did not come through either parent. Gonzales v. Shaw, 2018-NMCA-059.

Trial court did not abuse its discretion in awarding attorney fees and costs. — Where petitioner filed a motion to establish child support for her nineteen-year-old disabled son, and where respondent argued that the facts of the case did not rise to the level of an incapacitated adult child, despite son's defined disabilities, the trial court did not err in awarding petitioner her attorney fees and costs, where the evidence established that respondent ignored the medical expert's report and findings that son was disabled, declined to settle the case despite encouragement from the court to do so, and caused petitioner to incur additional costs and unnecessary attorney fees. Gonzales v. Shaw, 2018-NMCA-059.

Court's jurisdiction not extended by parties' agreements. — The jurisdiction of the court to enforce child support provisions in a divorce decree after the children have reached majority cannot be extended by agreement of the parties. Spingola v. Spingola, 1979-NMSC-079, 93 N.M. 598, 603 P.2d 708.

VI. EXPENSES OF PROCEEDING.

Implementation of Subsection A — Rules 1-054(E) and 1-127 NMRA appear to implement Subsection A of this section. Bursum v. Bursum, 2004-NMCA-133, 136 N.M. 584, 102 P.3d 651, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.

California attorney fees. — With personal jurisdiction over both the wife and husband and subject matter jurisdiction over the division of their property, a New Mexico court could consider California attorney fees. Bursum v. Bursum, 2004-NMCA-133, 136 N.M. 584, 102 P.3d 651, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.

Request for attorney fees. — By presenting the court with an affidavit, mother sufficiently alerted the court's attention to her request for attorney fees and preserved this issue for appeal. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485, 112 P.3d 1142.

Central purpose of attorney fees award under this section is to remedy any financial disparity between the divorcing parties so that each may make an efficient and effective presentation of his or her claims in the underlying divorce case. Garcia v. Jeantette, 2004-NMCA-004, 134 N.M. 776, 82 P.3d 947.

Award of attorney fees to intervening third party not authorized. Subsection A of this section does not authorize the district court to order an intervening third party to pay attorney fees incurred by a divorcing party who was required to bring a separate action to collect on a judgment entered in the divorce proceeding. Garcia v. Jeantette, 2004-NMCA-004, 134 N.M. 776, 82 P.3d 947.

Consideration of parties' economic disparity. — In making its award of attorneys' fees, the trial court properly considered the economic disparity between husband and wife and the husband's access to financial resources through his family. Monsanto v. Monsanto, 1995-NMCA-048, 119 N.M. 678, 894 P.2d 1034; Bustos v. Bustos, 2000-NMCA-040, 128 N.M. 842, 999 P.2d 1074.

Attorneys' and witnesses' fees as community debts. — A trial court does not abuse its discretion when it includes attorneys' fees and wife's expert witness fees as community debts to be paid out of community assets. Christiansen v. Christiansen, 1983-NMSC-058, 100 N.M. 102, 666 P.2d 781.

Trial court has authority to award wife attorneys' fees in divorce action, but such award is discretionary and will be reviewed only as to whether there has been an abuse of discretion. Fitzgerald v. Fitzgerald, 1962-NMSC-028, 70 N.M. 11, 369 P.2d 398.

Amount of award for attorney fees rests within sound discretion of court; however, discretion in this regard must have been exercised with the purpose in mind of insuring the plaintiff an efficient preparation and presentation of her case. The facts upon which the trial court apparently relied for its conclusion that plaintiff was entitled to no further award of attorney fees can hardly be considered as demonstrating an exercise of sound discretion in determining that the money previously awarded was sufficient to insure her an efficient preparation and presentation of her case where she was precluded at the outset of the final hearing, and at every point thereafter, from citing any law or giving any testimony on the question of attorney fees. Burnside v. Burnside, 1973-NMSC-091, 85 N.M. 517, 514 P.2d 36.

Many considerations enter into matter of fixing attorney fees, not the least important of which are: the ability, standing, skill and experience of the attorney; the nature and character of the controversy; the amount involved, the importance of the litigation and the benefits derived therefrom. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638.

Discretion of the trial court in the award of attorney fees is not unrestrained and it should consider various factors, including the most important one of economic disparity. Gomez v. Gomez, 1995-NMCA-049, 119 N.M. 755, 895 P.2d 277, superseded by statute on other grounds, Erickson v. Erickson, 1999-NMCA-056, 127 N.M. 140, 978 P.2d 347.

Fees allowed even if husband relieved of alimony payments. — Where a divorced husband was relieved from further payment of alimony, the court might still award the wife counsel fees. Lord v. Lord, 1933-NMSC-055, 37 N.M. 454, 24 P.2d 292.

Discretion of court in awarding attorney fees. — The matter of attorney's fees lies within the discretion of the trial court, and its decision on this subject will not be disturbed unless an abuse of discretion is shown. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Consideration of obstructive behavior. — So long as an award of attorney fees under Subsection A of this section does not duplicate a sanction imposed for discovery abuse, obstructive behavior of a party during litigation is an appropriate factor for consideration in making such an award. Hakkila v. Hakkila, 1991-NMCA-029, 112 N.M. 172, 812 P.2d 1320, cert. denied, 112 N.M. 77, 811 P.2d 575.

Where nonmoving party refused to sign settlement agreement. — Attorney's fees, which are permitted by this section and were authorized under marital settlement agreement (MSA), were improperly denied by trial court, where nonmoving party's refusal to sign MSA was the cause of the action and required the fees to be incurred. Herrera v. Herrera, 1999-NMCA-034, 126 N.M. 705, 974 P.2d 675.

Attorney's fees to be paid to spouse, not attorney. — An order directing the payment of attorney's fees by the husband in a divorce case direct to the wife's attorney is void. The wife is the party to the action, not the attorney, and the order must provide it be paid to her or to the clerk of the court for her benefit. Lloyd v. Lloyd, 1956-NMSC-007, 60 N.M. 441, 292 P.2d 121.

Awards of attorney's fees in divorce actions are to the wife, not the attorney. Dunne v. Dunne, 1972-NMSC-002, 83 N.M. 377, 492 P.2d 994.

Award not disturbed because attorney dissatisfied. — Trial court's award of attorney's fees approved by wife would not be disturbed because attorney was dissatisfied. Dunne v. Dunne, 1972-NMSC-002, 83 N.M. 377, 492 P.2d 994.

Law reviews. — For article, "Federal Taxation of New Mexico Community Property," see 3 Nat. Resources J. 104 (1963).

For note, "Family Law — Custody Dispute Between Biological Mother and Non-Biological, Non-Adoptive Party: A.C. v. C.B.," see 23 N.M.L. Rev. 331 (1993).

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

For comment on Trujillo v. Padilla, 79 N.M. 245, 442 P.2d 203 (1968), see 9 Nat. Resources J. 101 (1969).

For symposium, "Equal Rights in Divorce and Separation," see 3 N.M.L. Rev. 118 (1973).

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

For comment, "In-Migration of Couples from Common Law Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M.L. Rev. 113 (1978-79).

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

For article, "Survey of New Mexico Law, 1979-80: Domestic Relations and Juvenile Law," see 11 N.M.L. Rev. 134 (1981).

For annual survey of New Mexico law relating to domestic relations, see 12 N.M.L. Rev. 325 (1982).

For article, "Strange Bedfellows: The Uneasy Alliance Between Bankruptcy and Family Law," see 17 N.M.L. Rev. 1 (1987).

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

For annual survey of New Mexico family law, 19 N.M.L. Rev. 692 (1990).

For note, "New Mexico Changes the Method of Allocating Future Pension Benefits Between Divorcing Spouses: Ruggles v. Ruggles," see 25 N.M.L. Rev. 249 (1995).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation §§ 477, 607, 608, 1001, 1005.

Change in financial condition or needs of husband or wife as ground for modification of decree for alimony or maintenance, 18 A.L.R.2d 10.

Trial court's jurisdiction as to alimony or maintenance pending appeal of matrimonial action, 19 A.L.R.2d 703.

Divorce decree as res judicata or estoppel as to previous marital status, against or in favor of third person, 20 A.L.R.2d 1163.

Default decree in divorce action as estoppel or res judicata with respect of marital property rights, 22 A.L.R.2d 724.

Power of court, in absence of express authority, to grant relief from judgment by default in divorce action, 22 A.L.R.2d 1312.

Pension of husband as resource which court may consider in determining amount of alimony, 22 A.L.R.2d 1421.

Condonation of cruel treatment as defense in divorce action, 32 A.L.R.2d 107.

Reconciliation as affecting separation agreement or decree, 35 A.L.R.2d 707, 36 A.L.R.4th 502.

Husband's right to alimony, maintenance, suit money, or attorney's fees, 66 A.L.R.2d 880.

Propriety of reference in connection with fixing amount of alimony, 85 A.L.R.2d 801.

Credit for payments on temporary alimony pending appeal, against liability for permanent alimony, 86 A.L.R.2d 696.

Right of attorney to continue divorce or separation suit against client's wishes, 92 A.L.R.2d 1009.

Propriety and effect of undivided award for support of more than one person, 2 A.L.R.3d 596.

Consideration of tax liability or consequences in determining alimony or property settlement provisions of divorce or separation, 51 A.L.R.3d 461, 9 A.L.R.5th 568.

Effect of remarriage of spouses to each other on permanent alimony provisions in final divorce decree, 52 A.L.R.3d 1334.

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

Right, in custody proceedings, to cross-examine investigating officer whose report is used by the court in its decision, 59 A.L.R.3d 1337.

Wife's possession of independent means as affecting her right to temporary alimony or allowance for support of children, 60 A.L.R.3d 728.

Divorce: power of court to modify decree for support, alimony, or the like, based on agreement of the parties, 61 A.L.R.3d 520.

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

Adulterous wife's right to permanent alimony, 86 A.L.R.3d 97.

Grandparents' visitation rights after dissolution of marriage, 90 A.L.R.3d 217.

Father's liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support, 91 A.L.R.3d 530.

Propriety in divorce proceedings of awarding rehabilitative alimony, 97 A.L.R.3d 740.

Parent's obligation to support unmarried minor child who refuses to live with parent, 98 A.L.R.3d 334.

Divorced woman's subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree, 98 A.L.R.3d 453.

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.

Right to require psychiatric or mental examination for party seeking to obtain or retain custody of child, 99 A.L.R.3d 268.

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

Action based upon reconveyance, upon promise of reconciliation, of property realized from divorce award or settlement, 99 A.L.R.3d 1248.

Custodial parent's sexual relations with third person as justifying modification of child custody order, 100 A.L.R.3d 625.

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.

Removal by custodial parents of child from jurisdiction in violation of court order as justifying termination, suspension, or reduction of child support payments, 8 A.L.R.4th 1231.

Right of incarcerated mother to retain custody of infant in penal institution, 14 A.L.R.4th 748.

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation, 15 A.L.R.4th 224.

Necessity of requiring presence in court of both parties in proceedings relating to custody or visitation of children, 15 A.L.R.4th 864.

Propriety of awarding joint custody of children, 17 A.L.R.4th 1013.

Divorce and separation: effect of trial court giving consideration to needs of children in making property division - modern status, 19 A.L.R.4th 239.

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

Spouse's liability, after divorce, for community debt contracted by other spouse during marriage, 20 A.L.R.4th 211.

Authority of divorce court to award prospective or anticipated attorneys' fees to enable parties to maintain or defend divorce suit, 22 A.L.R.4th 407.

Divorce and separation: appreciation in value of separate property during marriage without contribution by either spouse as separate or community property, 24 A.L.R.4th 453.

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 amount of money awarded as separate maintenance, alimony, or support for spouse without absolute divorce, 26 A.L.R.4th 1190.

Excessiveness or adequacy of money awarded as temporary alimony, 26 A.L.R.4th 1218.

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

Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce, 28 A.L.R.4th 786.

Court-authorized permanent or temporary removal of child by parent to foreign country, 30 A.L.R.4th 548.

Property settlement agreement as affecting divorced spouse's right to recover as named beneficiary under former spouse's life insurance policy, 31 A.L.R.4th 59.

Proper date for valuation of property being distributed pursuant to divorce, 34 A.L.R.4th 63.

Court's authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is contested, 34 A.L.R.4th 814.

Order awarding temporary support or living expenses upon separation of unmarried partners pending contract action based on services relating to personal relationship, 35 A.L.R.4th 409.

Visitation rights of homosexual or lesbian parent, 36 A.L.R.4th 997.

Validity and application of statute allowing endangered child to be temporarily removed from parental custody, 38 A.L.R.4th 756.

Propriety of provision of custody or visitation order designed to insulate child from parent's extramarital sexual relationships, 40 A.L.R.4th 812.

Spouse's dissipation of marital assets prior to divorce as factor in divorce court's determination of property division, 41 A.L.R.4th 416.

Divorce: equitable distribution doctrine, 41 A.L.R.4th 481.

Primary caretaker role of respective parents as factor in awarding custody of child, 41 A.L.R.4th 1129.

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

Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.

Valuation of stock options for purposes of divorce court's property distribution, 46 A.L.R.4th 689.

Divorced or separated spouse's living with member of opposite sex as affecting other spouse's obligation of alimony or support under separation agreement, 47 A.L.R.4th 38.

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

Child support: court's authority to reinstitute parent's support obligation after terms of prior decree have been fulfilled, 48 A.L.R.4th 952.

Necessity that divorce court value property before distributing it, 51 A.L.R.4th 11.

Modern status of views as to validity of premarital agreements contemplating divorce or separation, 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution - modern status, 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms - modern status, 53 A.L.R.4th 161.

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

Right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

Right to attorneys' fees in proceeding, after absolute divorce, for modification of child custody or support order, 57 A.L.R.4th 710.

Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.

Divorce property distribution: treatment and method of valuation of future interest in real estate or trust property not realized during marriage, 62 A.L.R.4th 107.

Prejudgment interest awards in divorce cases, 62 A.L.R.4th 156.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180.

Divorce: voluntary contributions to child's education expenses as factor justifying modification of spousal support award, 63 A.L.R.4th 436.

Child custody: separating children by custody awards to different parents - post-1975 cases, 67 A.L.R.4th 354.

Divorce and separation: effect of court order prohibiting sale or transfer of property on party's right to change beneficiary of insurance policy, 68 A.L.R.4th 929.

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.

State court's authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to noncustodial parent under § 152(e) of the Internal Revenue Code (26 USCS § 152(e)), 77 A.L.R.4th 786.

Valuation of goodwill in medical or dental practice for purposes of divorce court's property distribution, 78 A.L.R.4th 853.

Accrued vacation, holiday time, and sick leave as marital or separate property, 78 A.L.R.4th 1107.

Death of obligor spouse as affecting alimony, 79 A.L.R.4th 10.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.

What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)), 79 A.L.R.4th 1081.

Child custody and visitation rights of person infected with AIDS, 86 A.L.R.4th 211.

Divorce: court's authority to institute or increase spousal support award after discharge of prior property award in bankruptcy, 87 A.L.R.4th 353.

Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.

Parent's child support liability as affected by other parent's fraudulent misrepresentation regarding sterility or use of birth control, or refusal to abort pregnancy, 2 A.L.R.5th 337.

Divorce: spouse's right to order that other spouse pay expert witness fees, 4 A.L.R.5th 403.

Divorce and separation: consideration of tax consequences in distribution of marital property, 9 A.L.R.5th 568.

Divorce and separation: award of interest on deferred installment payments of marital asset distribution, 10 A.L.R.5th 191.

Spouse's right to set off debt owed by other spouse against accrued spousal or child support payments, 11 A.L.R.5th 259.

Consideration of obligated spouse's earnings from overtime or "second job" held in addition to regular full-time employment in fixing alimony or child support awards, 17 A.L.R.5th 143.

Excessiveness of adequacy of attorneys' fees in domestic relations cases, 17 A.L.R.5th 366.

Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 A.L.R.5th 534.

Right to credit on child support payments for social security or other government dependency payments made for benefit of child, 34 A.L.R.5th 447.

Smoking as factor in child custody and visitation cases, 36 A.L.R.5th 377.

Alimony as affected by recipient spouse's remarriage in absence of controlling specific statue, 47 A.L.R.5th 129.

Excessiveness or inadequacy of lump-sum alimony award, 49 A.L.R.5th 441.

Alimony or child-support awards as subject to attorneys' liens, 49 A.L.R. 5th 595.

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

Custodial parent's homosexual or lesbian relationship with third person as justifying modification of child custody order, 65 A.L.R.5th 591.

Effect of same-sex relationship on right to spousal support, 73 A.L.R.5th 599.

Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement, 80 A.L.R.5th 487.

Spouse's cause of action for negligent personal injury, or proceeds therefrom, as separate or community property, 80 A.L.R.5th 533.

Divorce decree or settlement agreement as affecting divorced spouse's right to recover as named beneficiary on former spouse's individual retirement account, 99 A.L.R.5th 637.

Propriety of equalizing income of spouses through alimony awards, 102 A.L.R.5th 395.

Debts for alimony, maintenance, and support as exceptions to bankruptcy discharge, under § 523(a)(5) of Bankruptcy Code of 1978 (11 USCS § 523(a)(5)), 69 A.L.R. Fed. 403.

Pre-emptive effect of Employee Retirement Income Security Act (ERISA) provisions (29 USCS §§ 1056(d)(3), 1144(a), 1144(b)(7)) with respect to orders entered in domestic relations proceedings, 116 A.L.R. Fed. 503.

27B C.J.S. Divorce §§ 306 et seq., 508 et seq.; 27C C.J.S. Divorce, § 611 et seq.