June 12, 2019- Lisa Bruton v. Kenneth Bruton, No. A-1-CA-36661

OCR transcription for search; preserved printed pages are authoritative

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LISA BRUTON,

Court of Appeals of New Mexico
Filed 6/12/2019 10:49 AM

Lh |
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Neri Reynolds

Petitioner-Appellee,
v. . No. A-1-CA-36661
KENNETH BRUTON,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
Pedro G. Rael, District Judge

Gary R. Fernandez
Grants, NM

for Appellee

Carter & Valle Law Firm, P.C.
Linda Lillie Ellison

Albuquerque, NM
for Appellant
MEMORANDUM OPINION
ATTREP, Judge.
{1} Kenneth Bruton (Husband) appeals the district court’s decision in connection

with his divorce from Lisa Bruton (Wife). Husband contends the district court erred:

(1) on several grounds in calculating child support, (2) in characterizing certain real

1 property and the marital residence as community property, and (3) in dividing
2 miscellaneous property. We affirm.
3 BACKGROUND
4 	{2} 	Husband and Wife were married in 1999. They had a son in 2000 and a
5 daughter in 2005 (collectively, Children). Husband and Wife operated a guided
6 hunting business jointly with another partner for 	several years prior to 	their
7 separation. 	Husband 	also 	received 	and 	continues 	to 	receive 	Social 	Security
8 Disability Income (SSDI). Each child receives SSDI derivative benefits of $150 per
9 month based on Husband's disability.
10 	{3} 	Wife petitioned for dissolution of the marriage in 2015. Soon after, the district
11 	court entered a temporary order providing, among other things, that the parties
12 agreed that the monthly SSDI derivative payments covered any child support needs.·
13 	The district court held a trial on contested issues over four days in 2016 and 2017.
14 The district court entered a lengthy decision summarizing the evidence presented at
15 	trial, ordering child support, and dividing the parties' real and personal property.
16 Husband sought reconsideration of the district court's decision. The district court
17 made certain amendments to its original decision based on Husband's motion but
18 	largely ratified the original decision, and Husband appealed. We reserve further
19 discussion of the facts for our analysis.
2

. 1 DISCUSSION
2 I. 	Child Support
3 {4} 	Husband raises three issues concerning the child support award: (1) that the
4 ·district court erred in determining the parties' respective incomes used to calculate
5 child support, (2) that the district court erred by failing to grant him an unconditional .
6 credit for Children's SSDI derivative payments toward the child support award, and
7 (3) that the district court erred in using Worksheet A to calculate child support. "The
8 setting of child support is left to the sound discretion of the [district] court as long
9 as that discretion is exercised in accordance with the child support guidelines."
10 	Grant v. Cumiford, 2005-NMCA-058,, 21, 137 N.M. 485, 112 P.3d 1142 (internal
11 	quotation marks and citation omitted). We review any questions of law de novo. Jd.
12 A. 	The Parties' Income
13 	{5} 	Husband contends the district court erred in calculating both his and Wife's
14 gross monthly incomes. We review the district court's findings regarding parental
15 	incomes, as required by the guidelines to .apportion child support, for substantial
16 evidence. Id. "In.come," for purposes of calculating child support, "means actual
17 gross income 	of a parent if employed to full capacity or potential income 	if
18 unemployed or underemployed." NMSA 1978, § 40-4-11.l(C)(l) (2008). "Gross
.19 	income," in turri, is "income from any source and includes but is not limited to
20 income from salary, wages, [and] tips," as well as "social security benefits" and
3

1 "disability 	insurance 	benefits." 	Section 	40-4-1 l.l(C)(2). 	"Gross 	income" 	also
2 includes "income from self~employment/' defined as "gross receipts minus ordinary
3 and 	necessary 	expenses 	requited 	to 	produce" 	the 	income. 	Section 	40-4-
4 	ll.l(C)(2)(b).
5 {6} 	First, Husband contends the district court erred in computing his monthly
6 income above an amount supported by his testimony. 1 Various evidence was
7 presented on Husband's gross income. Wife testified that as guides and outfitters
8 prior to .their separation, Husband and Wife were often paid and tipped in large
9 quantities of cash to avoid taxes and affecting Husband's SSDI benefits. She added
10 that she thought Husband alone, based on reports from their bookkeeper, received at
11 	least $50,000 in cash payments each year. A former business partner testified that
12 Husband and Wife grossed approximately $78,400 combined from the guiding and
13 	outfitting business in 2013 	and 2014, and Husband grossed $42,000 in 2015.
14 Husband testified that he continued to actively work as a guide for a local outfitting
15 	company, making a $2,000 monthly wage, as well as doing other odd jobs for varied
16 amounts.
1Husband seems. to contend the district court improperly imputed him income
beyond what he testified to-or, in other words, found that Husband could and
should be making more than he was actually making at the time of the trial. We do
notread the district court's decision as imputing income to Husband. Instead, the
district court found, based on the evidence presented, that Husband was actually
making about as much as he had previously made. We therefore consider whether
the evidence supported this finding.
4

1 {7} 	In the light of the foregoing, the district court was free to give Husband's
2 testimony regarding .his current income less weight than the evidence regarding
3 Husband's income from prior years. See Lopez v. Adams, 1993-NMCA-150, 12, 116
4 N.M. 757, 867 P.2d 427 ("It is for the [district] court to weigh the testimony,
5 determine 	the 	credibility 	of witnesses, 	reconcile 	inconsistent 	statements 	and
6 determine where the truth lies."). The district court calculated Husband's non-
7 disability income at approximately $39,200, which was consistent with Husband's
8 income from the guiding business in 2013 and 2014 and· less than his income in
9 2015. See Boutz v. Donaldson, 1999-NMCA-131, 17, 128 N.M. 232,991 P.2d 517
10 (permitting the court to approximate an income based on income received for past
11 	similar efforts); Major v. Major 1998-NMCA-001, 112, 124 N.M. 436, 952 P.2d 37
12 (suggesting "possible approach" to computing rancher's annual costs, as part of
13 	income calculation, was to use the "average cost" over five years). Further, it was
14 undisputed Husband received approximately $12,000 per year, or $1,000 monthly,
15 	in disability income. Based on Husband's testimony, the evidence regarding his
16 business income froni the prior three years, the evidence regarding cash payment in
17 his line of work, and the undisputed evidence regarding Husband's disability
18 	income, substantial evidence supports the district court's calculation of Hu~band's
19 annual gross income at $51,213 ($39,213 in non-disability and $12,000 in SSDI) and
20 his monthly gross income at $4,268.
5

1 {8} 	Second, Husband argues Wife should have been estopped from presenting
2 income evidence different from that listed in their joint tax returns in 2011, 2012,
3 and 2013, and the district court erred in considering such evidence. But as this Court
4 has observed multiple times, the income calculation "is more concerned with a
5 parent's actual cash flow than ... with income as represented on tax returns." Jury
6 v. Jury, 2017-NMCA-036, 130,392 P.3d 242 (internal quotation marks and citation
7 omitted). Moreover, this Court has explained a district court errs in limiting its
8 income calculation to the figures shown on a tax return where the record reveals
9 additional 	sources 	of revenue 	because 	our 	child 	support 	guidelines 	require
10 consideration of income "from any source." Padilla v. Montano, 1993-NMCA-127,
11 	1 37, 116 N.M. 398, 862 P.2d 1257. Here, the district" court correctly considered
12 additional evidence of Husband's actual gross income beyond the figures shown on
13 	the tax returns and substantial evidence supports the district court's calculation of
14 Husband's actual gross income.
15 	{9} 	Third, Husband contends the district court erred in not imputing additional
16 	income to Wife as an underemployed parent under the child support guidelines. See
17 	§ 40-4-11.1 (C)( 1) (defining actual gross income as potential income if the parent is
18 	unemployed or underemployed). The district court calculated Wife's gross monthly
19 	income at $642, based on evidence that she made this amount as a cook for a local
20 school district. Husband argues the district court should have imputed either their
6

1 prior-year income to Wife, based on Wife's testimony she had returned to working
2 with outfitters, or, in the alternative, the court should have imputed a full-time
3 minimum wage. Husband presented no argument to the district court regarding
4 imputation of Wife's prior level of income, and thus we decline to review the
5 argument on appeal. See Spectron Dev. Lab. v. Am. Hollow Boring Co., 	1997-
6 NMCA-025, , 	32, 123 N.M. 170, 936 P.2d 852 ("[W]e review the case litigated
7 below, not the case that is fleshed out for the first time on appeal."); Woolwine v.
8 Furr's, Inc., 1987-NMCA-133,, 20, 106 N.M. 492, 745 P.2d 717 ("To preserve an
9 issue for review on appeal, it must appear that [the] appellant fairly invoked a ruling
10 	of the [district] court on the same grounds argued in the appellate court."). Further,
11 	Husband presented no evidence that additional employment opportunities at full-
12 time minimum wage were available to Wife. See Cherpelis v. 	Cherpelis, 	1996-
13 	NMCA-037, , 	13, 121 N.M. 500, 914 P.2d 637 (declining invitation to require
14 imputation of income in spousal support case at full-time minimum wage and noting
15 	"[the h]usband presented no evidence that additional employment for [the w]ife was
16 actually available"). In the absence of any record on the question of Wife's full
17 employment, 	we 	cannot 	conclude 	the 	district 	court 	abused 	its 	discre~ion 	in
18 	calculating Wife's ,gr<?SS monthly income at $642. See id.; see also State !ex rel.
19 Human Servs. Dep't v. Kelley, 2003-NMCA-050, ,, 14-15; 133 N.M. 510, 64 P.3d
20 537 (explaining the district court must determine whether the parent has acted in
7

1 good faith to earn and preserve as much for support as is reasonable under the
2 circumstances 	and 	reviewing the 	district 	court's 	determinations 	for 	abuse 	of
3 discretion).
4 {10} 	w_e conclude the district court did not err in calculating the parties' incomes
5 for child support purposes.
6 B. 	Credit for Children's SSDI Derivative Payments
7 	{11} 	Husband 	contends 	the 	district 	court 	erred 	by 	failing 	to 	grant 	him, an
8 unconditional credit for the SSDI derivative payments Children received based on
9 his disability. The district court ordered that "credit is to be given to [Husband] for
10 any amounts actually used by [Wife] as child support from the derivative [SSDI]
11 	payments 	against 	the 	[child 	support 	awarded 	against 	Husband]." 	(Emphasis
12 omitted.) We review the district court's decision for abuse of discretion. 	See
13 	Pedersen v. Pedersen, 2000-NMCA-042, 1 5, 129 N.M. 56, 1 P.3d 974. Deviation
14 from the child support guideline amounts are permitted under certain circumstances,
15 	pursuant to NMSA 1978, § 40-4-11.2 (1989). In Pedersen, we explained that "in
16 allowing a credit against basic child support for off-schedule sources of income, such
17 as social security benefits paid directly to the child, Section 40-4-11.2 requires the
18 	[district] court to exercise its discretion on a case-by-case basis, with the :child's
'
19 	standard 	of living 	a 	crucial 	factor." 	2000-NMCA-042, 	1 5. 	In 	maki~g 	this
20 determination, the district court is to calculate the parties' support obligations
8

1 without reference to the derivative payments. See id. 1 6. The party seek~ng credit
2 for the payments then has the burden of justifying any deviation from the calculation.
3 Id.
. 	.
4 	{12} 	Husband's only justification for an unconditional credit, both to the district
5 court and on appeal, is that the parties agreed in a pretrial proceeding that the· SSDI
6 derivative payments would satisfy his support obligation. Husband has cited no
7 	authority for the idea that the temporary pretrial agreement should have permanent
8 effect, and thus we assume none exists. 	See Curry v. Great Nw. _Ins. Co., 2014-
9 NMCA-031, 128, 320 P.3d 482; see also Ottino v. Ottino, 2001-NMCA-012, 125,
10 	130 N.M. 168, 21 P.3d 37 (explaining the parties' agreement cannot be used to·
11 	control the discretion of the court and deny the right of the court to exercise its
12 statutory powers). Nor has Husband cited any portion of the record establishing the
13 	parties. actually intended their temporary agreement to be permanent. See Muse v.
14 Muse, 2009-NMCA-003, 172, 145 N.M. 451, 200 P.3d 104 ("We will not search
15 	the 	record 	for 	facts, · arguments, 	and rulings 	in order .to 	support generalized
16 arguments."). What is more, Husband presented no other evidence or argument
17 regarding how a credit might affect Children's standard of living. The absence of
18 that evidence would sustain a decision awarding Husband no credit at ~11. See
19 Pedersen, 2000-NMCA-042, ,-r 6.
9

1 {13} 	The district court nevertheless granted Husband a credit toward his child
2 support obligation so long as the parties demonstrate the derivative payments are
3 actually used as support for Children. The district court appears to have imposed the
4 condition based on the fact that the derivative payments previously had been put into
5 savings and not used for support, and Husband had stopped derivative payments for
6 one child after he discovered Wife had withdrawn some of the funds. While the
7 district court made no express findings as to how a credit would affect Children's
8 standard of living, the implication is clear the court found the credit was warranted
9 and would best promote their standard of living only if actually made available to
10 them and used on their behalf. Cf id. , 	6 (requiring the district court to "make
11 	findings explaining how and why the child's receipt of [monthly] social security
12 benefits justifies giving [the t]ather a full or partial credit against the guideline
13 	amount of child support").
14 	{14} 	On this record, we cannot conclude the district court abused its discretion in
15 	awarding Husband a conditional credit for Children's SSDI derivative payments.
16 C. 	Use of Worksheet A
17 	{15} 	Husband points out that one child lives full-time with Wife, while the other
18 	child splits time equally between the parents. He·notes that in Erickson v. Erickson,
19 	1999-NMCA-056,, 10, 127 N.M. 140, 978 P.2d 3.47, we set forth the method for
20 calculating child support under similar circumstances. In ~ccordance with Erickson,
10

1 the district court is to compute the support award for the child living full-time with
2 one parent using Worksheet A's basic visitation scheme, compute the award for the
3 second child splitting time equally between parents using Worksheet B's shared
4 responsibility scheme, and .adjust the calculation for the second child to account for
5 the fact that he or she is the sole child housed by one parent and the second child
6 housed by the other. See id.; see also § 40-4-11.l(K) (setting out instructions for
7 calculating child support under Worksheet A and Worksheet B). The district court
8 here employed a different method. The court observed Wife has full-time custody of
9 one child and shared 50:-50 custody of the other child, concluded. this was equivalent
10 to having both Children 75 percent of the time, and used Worksheet A to calculate
11 	the obligation using two chilcjren with Wife 75 percent of the time. Husband
12 contends the district court erred by using Worksheet A in this way and should have
13 instead "perform[ed] an Erickson analysis."
14 	{16} 	Regardless whether the district court erred, Husband has failed to establish
15 	that application of the Erickson method would have benefited him. He has offered
16 no proposed calculation under Erickson. Our own calculation under Erickson reveals
17 Husband's obligation would have been over $100 more per month than the district
18 	court calculated. Generally, we require a showing of prejudice to find aμ error
19 reversible, 	and 	because 	Husband 	would 	incur 	a 	larger 	obligation 	under 	the
20 application of the method he requests, he has not made the requisite showing here,
11

1 and thus we do not reverse on this basis. See, e.g., Talley v. Talley, 1993-NMCA-
2 	003,, 11, 115 N.M. 89,847 P.2d 323 ("[A]n,appeal by one against whom an award
3 at a level lower than that set forth in the guidelines has· been made should also be
4 rare."); see also Kennedy v. Dexter Consol. Sch., 2000-NMSC-025,, 26, 129 N.M.
5 436, 10 P.3d 115 ("An error is harmless unless the complaining party can show that
6 it created prejudice.").
7 II. 	Real Property and the Marital Residence
8 	{17} 	Husband contends the district court erred in characterizing fifty-three acres of
9 real property and the marital residence thereon as community property. He asks us
10 to review the determinations de novo. Were any legal questions raised by the district
11 	court's determinations, we would review them de novo. See Styka v. Styka, 1999-:-
12 NMCA-002,, 8, 126 N.M. 515,972 P.2d 16. But Husband does not claim here that
13 	the district court misinterpreted any applicable statutory provision or misapplied any
14 	legal principle-he instead appears to contend the district court erred in failing to
15 	adopt his testimony regarding the origin of the property. His claim, in other words,
16 contests· solely whether the 	evidence presented supported the 	district .court's
17 determination that the property in question was community property, and thus we
18 review for substantial evidence. See Bishop v. Evangelical Good Samaritan Soc y,
19 	2009-NMSC-036, , 	25, 146 N.M. 473, 212 P.3d 361 (reviewing for substantial
20 evidence where no legal questions remain); Corley v. Corley, 1979-NMSC-040,, 8,-
12

1 92 N.M. 716, 594 P.2d 1172 (reviewing finding that divorcing spouses' farm was
2 community property for substantial evidence).
3 	{18} 	In support of his claim, Husband simply recounts his testimony and the
4 exhibits he presented, suggesting the real property in question had been deeded to
5 him alone and he alone had financed the purchase of the residence with proceeds
6 from a sale of his own land. In reviewing substantial evidence claims, however, we
7 ask not whether evidence exists to support a contrary result, but whether substantial
8 evidence supports the result actually reached. Las Cruces Prof'! Fire Fighters v. City
9 of Las Cruces, 1997-NMCA-044,, 12, 123 N.M. 329, 940 P.2d 177. Again, the
10 district court was free to resolve conflicts in the evidence, to weigh the facts, and to
11 	evaluate the credibility of the witnesses. See, e.g., Lopez, 1993-NMCA-150,, 2; see
12 also Lahr v. Lahr, 1970-NMSC-165,, 2, 82 N.M. 223,478 P.2d 551 ("We presume
13 	the correctness of the judgment of the [district] court who had the advantage of
14 evaluating the demeanor of the parties and of the witnesses.").
15 	{19} 	"Community property is broadly defined as 'property acquired by either or
16 both spouses during marriage which is not separate property.'" Arnold v. Arnold,
17 2003-NMCA-114,, 8, 134 N.M. 381, 77 P.3d 285 (quoting NMSA 1978, ~ 40-3-
18 	8(B) (1990)). "Property acquired during marriage by either husband or wife, 9r both,
'
19 	is presumed to be community property." NMSA 1978, § 40-3-12(A) (1973). There
20 is ample evidence in the record to support the district court's determination that the
13

1 real property and marital residence was community property. Wife testified that a
· 2 portion of the real property in issue had been purchased with community funds,
3 several years after the parties were married. Husband and Wife produced exhibits
4 showing an additional portion of the real property had been transferred to them
5 jointly, as "husband and wife," as a gift by Husband's stepmother. They both
6 testified the marital residence was purchased partly from the proceeds of the.sale of
7 property the district court deemed community property. Both parties produced
8 evidence that they had both signed the purchase agreement for the residence.
9 Property tax bills showed both parties had been taxed in preceding years for the
10 property in question as joint owners. And the district court found Husband was less
11 	credible on this issue than Wife, as it was entitled to do.
12 	{20} 	We 	conclude 	substantial 	evidence 	supports 	the 	district 	court's
13 	characterization of the real property at issue and the marital residence thereon as
' 	'
14 community property. See Ohl v. Ohl, 1981-NMSC-128,, 5, 97 N.M. 175,637 P.2d
15 	1230 (concluding substantial evidence supported the district court's finding that the
16 property acquired during marriage was separate property); cf Arch, Ltd. v. Yu_, 1988-
17 NMSC-101, 	, 	12, · 108 	N.M. 	67, 	766 P.2d 	911 	(concluding presumption 	of
18 	community property had been established based on acquisition of the property
I
19 	during marriage·and no substantial evidence supported rebuttal ofpresumptipn).
14

1 III. 	Miscellaneous Property
2 {21} 	Husband provides a long list of other items including vehicle accessories, a
3 trailer, tools, furniture, two cabins on the.community real property, firearms, horses,
4 and dogs he contends the district court erred in characterizing as community or
5 separate property, valuing, and/or dividing between the parties. We review: the
6 district court's findings regarding the characterization and valuation of property for
7 substantial evidence. See Corley, 1979-NMSC-040, ,r 8 (reviewing finding th~t the
8 property was community property for substantial evidence); see also Olivas v.
9 	Olivas, 1989-NMCA-064, ,r 20, 108 N.M. 814, 780 P.2d 640 (observing that "[a]n
10 owner is competent to give opinion testimony on the value of community property"
11 	and reviewing the district court's property valuation for substantial evidence). We
12 review the district court's division of community property for abuse of discretion.
13 	Arnold, 2003-NMCA-114, ,r 6. The district court is required to equally divide
14 community property between the parties. Irwin v. Irwin, 1996-NMCA-007, ,r 10,
15 	121 N .M. 266, 910 P.2d 342. There is no requirement, however, that the court
16 provide each party the same dollar value, so long as the court apportions the property
17 by a method best suited to the circumstances. Ridgway v. Ridgway, 1980-NMSC-
18 	055, ,r 5, 94 N.M. 345, 610 P.2d 749; Irwin, 1996-NMCA-007, ,r 10 ("The ~ivision
19 	of property, however, need not be computed with mathematical exactness.")'.
15

1 {22} 	We briefly examine the items Husband claims the district court improperly
2 characterized, valued, or divided. First, while the parties agreed the diesel truck
3 would go to Wife, Husband maintains that the district court should have permitted
4 him to remove certain accessories from the truck. Husband, however, has identified
5 no abuse of discretion in the district court's finding that removal of Husband's
6 desired accessories was imprudent or impracticable. Second, Wife testified the
7 trailer and tools had been purchased in part with community funds after the parties
8 were married, andthe district court found these items to be community property and
9 divided accordingly. Third, Wife testified she purchased the furniture remaining in
10 the marital residence with community funds, 	and the district court found the
11 	furniture to be community property and divided accordingly. Fourth, Wife testified
12 the cabins on the real property had been built in part from community labor and
13 	materials purchased with community funds, and the district court found the cabins
14 to be community property and divided accordingly. Fifth, Wife and Husband both
15 	testified regarding the provenance of each of the guns in question and their respective
16 values. The district court as a result characterized certain guns as separate property
17 and others as community property, and awarded the p~rties credits as necessary for
18 	half the value of the guns deemed community property. Sixth, both parties, and
19 another witness, testified regarding the provenance of the horses and their respective
20 values. The district court as a result characterized cert~in horses as separate property
16

I 	and others as community property, and awarded the parties credits as necessary for
.2 	half the value of the horses deemed community property. Seventh, both parties also
3 testified regarding the provenance of the. dogs and their respective values. The
4 district court characterized all the dogs as community property, awarded possession
5 to Husband, and awarded Wife a credit for half the value of the dogs.
6 	{23} 	Based on the record before us, we conclude substantial evidence supports the
7 district 	court's 	characterizations 	of 	the 	miscellaneous 	items 	as 	separate 	or
8 community property and the valuation of said items. We further conclude the district
9 court did not abuse its discretion in distributing the assets between the parties and in
10 awarding credit to the non-possessing party for half the value of each community
11 	item retained by the other party. Husband's recap on appeal of only his own self-
12 serving testimony is unavailing. See, e.g., Jur,ado v. Jurado, 1995-NMCA-014, 19,
13 	119 N.M. 522,892 P.2d 969 ("[I]t was [the appellant]'s duty to set forth the e~idence
14 in _the light most favorable to support the findings, and then demonstrate why the
15 	evidence failed to support the findings made by the [district] court.").
16 CONCLUSION
17 {24} 	We affirm the district court's dissolution decision.
18 	{25}
19
20
IT IS SO ORDERED.
/- 	.f52z 	:	~.
~ATTREP, Jud
17

1 WE CONCUR:
2
Cylettin Atry
3
CYNTHIA A. FRY, Judge Pro Tempore
4 5|
e. when
J. MILES HANISEE, Judge
18