July 17, 2018- Christina J. Gonzales v. Richard S. Shaw, No. A-1-CA-34742

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: July 17, 2018
4 NO. A-1-CA-34742
5 CHRISTINA J. GONZALES,
6 	Petitioner-Appellee,
7 v.
8 RICHARDS. SHAW,
9 	Respondent-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 	Gerard J. Lavelle, District Judge
12 MonicaD. Baca
13 	Albuquerque, NM
14 for Appellee
15 	Trujillo Dodd, Torres, O'Brien, Sanchez, L.L.C.
16 Donna S. Trujillo Dodd
17 Albuquerque, NM
18 	for Appellant
Filed
Court of Appeals of New Mexico
7/17/2018 11:17 AM
Office of the Clerk
Mark Reynolds

1 	OPINION
2 VIGIL, Judge.
3 	{t} 	Respondent Richard Shaw appeals the district court's order setting child
4 support for his adult disabled son, Blake (Son), and memorandum order and judgment
5 awarding Petitioner Christina Gonzales attorney fees and costs. Respondent raises
6 four arguments on appeal: (1) the evidence was insufficient to find Son is a disabled
7 adult in need of continuing child support; (2) the district court erred in relying on the
8 report and testimony from clinical neuropsychologist, Dr. Jonathan R. Kurtyka, Ph.D.,
9 	in its determination on the issue of continued child support for Son; (3) the district
10 court erred in its treatment of the proceeds Son receives as a result of his disabilities
11 	from Social Security as part of the child support calculation; and (4) the district court
12 erred in its award of attorney fees and costs to Petitioner. We affirm.
13 	BACKGROUND
14 	{2} 	Petitioner filed a motion to establish child support for Son-nineteen years old
15 	at the time-pursuant to Cohnv. Cohn, 1997-NMCA-011, 15,123 N.M. 85, 934P.2d
16 279 (establishing the possibility 	of child support persisting beyond a 	child's
17 eighteenth birthday in certain circumstances of disability.) After an evidentiary
18 hearing that took place over the course of two days, the district court concluded,
19 under 	Cohn, 	that Petitioner and Respondent have a 	continuing obligation to

1 financially support Son. The district court determined that Respondent's child support
2 obligation to Son is $582 per month.
3 	{3} 	In its memorandum order and judgment, the district court explained that "[t]he
4 testimony of Dr. Jonathan Kurtyka was helpful and compelling in terms of the
5 decision to award child support. Both parties had the opportunity to interview Dr.
6 Kurtyka prior to his testimony in Court and, therefore, had access to Dr. Kurtyka's
7 information before the two trial dates that were eventually needed to resolve the
8 issues herein. In addition to Dr. Kurtyka's testimony, Respondent's own witnesses,
. 9 who were subpoenaed to come to Court, testified that [Son] is disabled." The district
10 court further ordered that Petitioner shall be awarded attorney fees, gross receipts tax,
11 	and costs related to Dr. Kurtyka's testimony. Respondent appeals.
12 DISCUSSION
13 	I.
14
15 	{4}
Sufficiency of the Evidence That Son Is a Disabled Adult Entitled to
Continuing Child Support
Respondent claims that "[i]t is clear that New Mexico adopts the notion that
16 parents shall continue to support their disabled or incapacitated children. However,
17 the facts of this case do not rise to the level of a[ n] incapacitated adult child, despite
18 	his defined disabilities." Respondent therefore contends that the evidence was
19 insufficient to determine Son is a disabled adult in need of continuing child support.
2

1 {5} 	"Child support determinations are made at the discretion of the district court
2 and are reviewed for abuse of discretion." Jury v. Jury, 2017-NMCA-036, ,r 26,392
3 P.3d 242. "A district court abuses its discretion if it applies an incorrect standard,
4 incorrect 	substantive 	law, 	or 	its 	discretionary 	decision 	is 	premised 	on 	a
5 misapprehension of the law." Id. (internal quotation marks and citation omitted). To
6 the extent that Respondent argues that there was an insufficient basis to support the
7 district court's findings concerning the extent of Son's disability, "we review the
8 evidence in the light most favorable to support the district court's findings, resolving
9 all conflicts and indulging all permissible inferences in favor of the decision below."
10 	Gabriele v. 	Gabriele, No. A-1-CA-34523, 2018 WL 797270, _-NMCA-_,
11 	,r 18,_ P.3d _ 	(Jan. 31, 2018) (alteration, internal quotation marks, and citation
12 omitted). However, insofar as Respondent challenges the district court's legal
13 	conclusion concerning whether Son qualified as an adult in need of continued child
14 support under Cohn, our review is de novo. See Gabriele, _-NMCA-_, ,r 18.
15 	{6} 	We held in Cohn that under the common law, "if a child is disabled at the time
16 	of reaching majority, ... the parental duty to provide.support continues indefinitely,
17 until the disability is removed." 1997-NMCA-011, ,r,r 5-6 (internal quotation marks
18 	and citation omitted). In Cohn, the father appealed the district court's order requiring
19 him to pay child support for his thirty-seven-year-old son, George, who had been
3

1 "severely mentally and physically handicapped since birth." Id. ,r,r 1-2. At the time
2 the district court entered its order, George had been and continued to be cared for by
3 his mother. Id. ,r 2. The district court found that George had the mind of a three-year-
4 old child and was incompetent, suffered from frequent epileptic seizures, had to be
5 helped in bathing and dressing, and needed constant supervision. Id. On appeal and
6 based on the district court's findings concerning George's condition, we concluded
7 that George was "severely disabled" before reaching the age of majority and therefore
8 the district court did not err in ordering the father to pay support for his disabled adult
9 son. Id. ,r 6.
10 {7} 	The 	evidence 	presented 	in 	the 	hearing 	of 	this 	case 	overwhelmingly
11 	demonstrates that Son was severely disabled before reaching the age of majority as
12 contemplated by Cohn.
13 	{8} 	Son was born with the genetic disorder, Chromosome 14, Trisomy Mosaic,
14 identified aspects of Fragile X syndrome (which presents 'with growth delays,
15 	psychomotor delays, and mental retardation), and a clubbed foot. As a high school
16 student, 	Son "received academic 	instruction 	in 	a 	full-time 	special 	education
17 classroom." Son's IQ at the time ofDr. Kurtyka's neuropsychological evaluation was
18 	65-in the severely impaired range. Son's performance in all academic core skills
19 were at least three grade levels below the expectation for a child his age, including
4

1 performing at a first-grade level in math and at a fourth-and fifth-grade level in
2 reading and spelling, respectively. Dr. Kurtyka testified that it was unlikely that Son's
3 skills could be improved with additional education. Son also tested in the mildly to
4 moderately impaired level in learning and memory skills, language functioning,
5 visual, and motor skills. Son's behavioral testing indicated significant difficulty with
6 behavioral, emotional, attentional, and executive functioning. Son was limited in all
7 adaptive functioning areas, which include motor skills, social communication,
8 personal living skills, and community living_ skills. Dr. Kurtyka testified that based
9 on 	his 	testing, 	he 	diagnosed 	Son 	with 	Mild 	Retardation, 	Attention
10 Deficit/Hyperactivity Disorder, and Combined Type.
11 	{9} 	Dr. Kurfyka's report and testimony also indicated that given Son's significant
12 	impairment in adaptive behavioral skills, he expected that Son would also have
13 	difficulties in independent functioning 	in the future. 	He further testified that
14 individuals with Son's level of functioning would likely be unable to live on their
15 	own without support, fill out job a application without assistance, rent an apartment
16 on their own, drive a car, or budget their money. When Dr. Kurtyka's report was
17 prepared, he recommended that Petitioner consider obtaining a durable power of
18 	attorney for Son or explore the possibility of legal guardianship once Son turned
19 eighteen. Given Son's diagnoses, Dr. Kurtyka did not expect Son's condition to have
5

1 changed significantly since his evaluation.
2 {10} 	Petitioner testified that shortly after Son's birth, it was clear that he was not
3 normal and that during his infancy and early childhood, she recognized that Son was
4 not meeting his developmental milestones and required multiple surgeries, including
5 to address his clubbed foot, to conduct an ear tube procedure, and to remove a
6 thyroglossal duct cyst. She also testified that Son was diagnosed with Chromosome
7 14, Trisomy Mosaic, and Fragile X syndrome at age 5. Petitioner testified that Son
8 had been in full-time special education classes since kindergarten and lived with her
9 full-time. Petitioner also testified that Son has difficulty thoroughly brushing his
10 teeth, determining what clothing is appropriate, and managing his ov~rall hygiene.
11 	Petitioner also testified that Son is unable to cook or plan meals for himself, has little
12 understanding of the concept of money, how to budget, or how to pay correct amounts
13 	for items without assistance, does not have a concept of or ability to tell time, and has
14 	impulse control problems stemming from his disabilities.
15 	{11} 	Respondent called four witnesses on his behalf, all of whom were special
16 education teachers that had experience with Son in the high school environment, and
17 each one testified that Son was disabled. Respondent disagreed with his own
18 witnesses and all the other evidence demonstrating that Son is disabled.
19 	{12} 	Viewing the evidence in the light most favorable to support the district court's
6

1 findings, resolving all conflicts and indulging all permissible inferences in favor of
2 the district court decision, we conclude that substantial evidence supports the district
3 court's findings and conclusion that Son was disabled upon reaching majority and is
4 an adult entitled to continuing child support.
5 II. 	The District Court's Reliance Upon Dr. Kurtyka's Report and Testimony
6 	{13} 	Respondent next asserts that the district court erred in relying upon Dr.
7 Kurtyka's neuropsychological evaluation of Son because "it was aged and n<?t
8 relevant to the child support issue." Respondent argues that the evaluation was
9 	conducted to evaluate Son's medical history and cognitive emotional functioning at
10 age sixteen with the purpose of supporting Son's developmental disability waiver
11 	application-not for a legal hearing on child support issues. Further, Respondent
12 contends that it was arbitrary and capricious for the district court to allow him one
13 	week to determine whether he wanted Dr. Kurtyka to conduct a follow-up evaluation
14 	of Son. Petitioner responds that Respondent failed to preserve these arguments for
15 	appeal. We agree.
16 	{14} 	In order to preserve an issue for review, a party "must have made a timely and
17 specific objection that apprised the district court of the nature of the claimed error and
18 that allows the district court to make an intelligent ruling thereon." Sandoval v. Baker
19 Hughes Oilfield Operations, Inc., 2009-NMCA-095,, 56, 146 N.M. 853,215 P.3d
7

1 791; see Rule 12-321(A) NMRA ("To preserve an issue for review, it must appear
2 that a ruling or decision by the trial court was fairly invoked."); McCauley v. Ray,
3 1968-NMSC-194, ,-r 9, 80 N.M. 171,453 P.2d 192 ("Failure to objectto the admission
4 of evidence constitutes a waiver of objection, and in such case the objection cannot
5 be raised for the first time on appeal."). "The primary purposes for the preservation
6 rule are: (1) to specifically alert the district court to a claim of error so that any
7 mistake can be corrected at that time, (2) to allow the opposing party a fair
8 opportunity to respond to the claim of error and to show why the court should rule
9 against that claim, and (3) to create a record sufficient to allow this Court to make an
10 	informed decision regarding the contested issue." Sandoval, 2009-NMCA-095, ,-r 56.
11 	{15} 	Prior to the presentation of evidence at the hearing, Respondent stipulated that
12 Dr. Kurtyka is an expert in neuropsychology and to the admission of Dr. Kurtyka's
13 	report. 	After 	hearing 	Dr. 	Kurtyka's 	testimony 	and 	recognizing 	that 	the
14 neuropsychological evaluation of Son that formed the basis 	of Dr. Kurtyka's
15 	testimony was three years old at the time of the hearing, the district court advised the
16 parties that if either wanted an updated evaluation of Son, they could obtain one with
17 the cost being split in half between them, subject to reallocation if appropriate. The
18 	court further advised the parties that it believed that the case was 	a "Cohn
19 	situation-that [Son] is not capable ofliving independently." The district court then
8

1 asked the parties whether they wanted an updated evaluation-Petitioner indicated
2 that she did not. Counsel for Respondent asked for "a week" to decide. The district
3 court granted the request, which was reflected in a minute order filed after the first
4 setting of the hearing. Respondent neither objected to this process nor did he opt to. 	I
5 obtain an updated evaluation ..
6 	{16} 	Under these circumstances, we conclude Respondent failed to preserve his
7 objection to the district court's reliance upon Dr. Kurtyka's report and testimony. See
8 Peay v. Ortega, 1984-NMSC-071, ,I 4, 101 N.M. 564, 686 P.2d 254 (stating that
9 "[c]ourts 	generally 	honor 	stipulations 	between 	the 	parties 	and 	uphold 	such
10 agreements concerning trial of a cause or conduct of litigation if the stipulations are
11 	not unreasonable, not against good moral standards or sound public policy, and are
12 within the general sense of the pleadings"); Quintana v. Vigil, 1942-NMSC-0 18, ,r 24,
13 	46 N.M. 200, 125 P.2d 711 (determining that the defendants waived any objection to
14 the 	introduction 	of exhibit where 	the 	defendants 	expressly 	consented to 	its
15 	introduction), overruled on other grounds by Evans Fin. Corp. v. Strasser, 1983-
16 NMSC-053, ,r 11, 99 N.M. 788, 664 P.2d 986; Malczewski v. McReynolds Constr.
17 	Co., 1981-NMCA-046, ,r 13, 96 N.M. 333, 630 P.2d 285 (determining that expert
18 witness's testimony was admissible where the defendant made no objection to its
19 admission).
9

1 III.
2
3 	{17}
The District Court's Treatment of Son's Social Security Disability Funds
in Its Child Support Calculation
Relying generally onMaskv. Mask, 1980-NMSC-134, 95 N.M. 229,620 P.2d
4 883 and Romero v. 	Romero, 	1984-NMCA-049, 	101 N.M. 345, 682 P.2d .201,
5 Respondent next argues that the district erred in failing to include Son's social
6 security disability funds 	in making its child support calculation. 	Specifically,
7 Respondent contends that under these cases, equitable considerations dictate that
8 Respondent receive a credit against his. support obligation for the social security
9 payments Son receives. We disagree.
10 	{18} 	In Mask, upon the retirement of her father, the child of divorced parents began .
11 	receiving monthly social security payments deriving from her father's contributions
12 to the social security fund. 1980-NMSC-134, 12. The father was in default on his
13 	child support obligations before and during the child's receipt of social security
14 payments. Id. 	The district court allowed the father an offset against his total
15 	arrearages in an amount equal to the social security payments received by the child.
16 Id. 13. Our Supreme Court held that when a child's monthly receipt of social security
17 funds coincides with a parent's default on child support payments, the arrearages may
18 	be offset by the social security payments up to the amount, but not exceeding the
19 parent's monthly child support obligation. Id. 16.
10

1 {19} 	In Romero, the father of two children was ordered to pay child support. 1984-
2 NMCA-049, 11. The mother subsequently filed a motion to modify child support; Id.
3 "At the time of the hearing on this motion, the father's income was from social
4 security and workmen's compensation." Id. At the hearing, the district court found
5 that the father was in default on his child support payments. Id. In so concluding, the
6 district court also ruled that the father was entitled to an offset against his child
7 support arrearages for the lump-sum social security payment received by the children
8 derived from his contributions into social security, but that the offset only applied to
9 the father's obligation for the month in which the lump-sum payment was received
10 by the children. Id. 1 4. On appeal, we reversed on grounds.that "Mask court's
11 	prohibition of 'carry-back' " offsets of a parent's child support obligations only
12 referred to offsets "in the amount the social security checks exceed the support
13 	obligation to cancel arrearages accrued before payment of social security." Id. 16. We
14 therefore concluded that the father was entitled to a child support offset "in the
15 	amount of the child support payments owed for the months the lump sum covered."
16 Id. 114, 7.
17 {20} 	These cases are not authority for Respondent's assertion that the district court
18 	erred as a matter of law in not deducting Son's receipt of social security disability in
19 making the child support calculation. Mask, which we extended in. Romero, as

1 Petitioner points out in her brief, merely "stands for the proposition that a disabled
2 parent may receive a full or partial credit against his child support obligation for sums
3 received by the child in social security benefits." In denying Respondent's request for
4 a credit, the district court ruled that if a child is receiving social security benefits
5 through a parent, then the parent may receive a credit. "But that's not the situation
6 here. That is [Son's] benefit and so it doesn't come from either parent. So I am not
7 going to bring that into the child support calculation." This ruling is contained in the
8 district court's written order.
9 	{21} 	"The setting of child support is left to the sound discretion of the trial court as
10 long as that discretion is exercised in accordance with the child support guidelines."
11 	Thompson v. Dehne, 2009-NMCA-120,, 8, 147 N.M. 283,220 P.3d 1132 (internal
12 quotation marks and citation omitted). "In New Mexico, there is a strong tradition of
13 	protecting a child's best interests in a variety of circumstances. It is well-settled law
14 that when the case involves children, the trial court has broad authority to fashion its
15 	rulings in 'best interests of the children.' " Sanders v. Rosenberg, 1997-NMSC-002,
16 , 	10, 122 N.M. 692,930 P.2d 1144 (internal quotation marks and citations omitted).
17 	{22} 	In the absence of any argument or evidence presented by Respondent that Son
18 	is not in need of both child support and his social security disability benefits,
19 argument that the district court deviated from the child support guidelines in its child
12

1 support calculation, citation to any other authority in support of his claim for a child
2 support offset based on the social security funds received by Son as a result of Son's
3 personal disability, and no attempt to distinguish or argue for an extension of Mask
4 and Romero, Respondent presents no basis for this Court to find that the district court
5 abused its discretion in its child support calculation or ruled in a manner not in Son's
6 best interest.
7 IV. 	Attorney Fees and Dr. Kurtyka's Fee
8 	{23} 	Respondent's final argument is that the district court erred in awarding
9 Petitioner attorney fees and costs associated with Dr. Kurtyka's testimony.
10 	{24} 	NMSA 1978, Section 40-4-7(A) (1997) authorizes the district court to award
11 	attorney fees and costs related to the preparation and presentation of a domestic
12 relations case, providing that:
13
14
15
16
17
18
19
20
21
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.
22 SeeMonsantov. Monsanto, 1995-NMCA-048, 117-8, 119N.M. 678, 894P.2d 1034.
23 	"In awarding fees, the court shall consider relevant factors presented by the parties,
13

1 including but not limited to: A. disparity of the parties' resources, including assets
2 and incomes; B. prior settlement offers; C. the total amount of fees and costs
3 expended by each party, the amount paid from community property funds, any
4 balances due and any interim advance of funds ordered by the court; and D. success
5 on the merits." Rule 1-127 NMRA.
6 {25} 	The determination of whether to award fees and costs in a domestic relations
7 case "is within the discretion of the trial court and will be reviewed only to determine
8 whether there has been an abuse of discretion." Monsanto, 1995-NMCA-048, 19.
9 "[T]he trial court's discretion must be exercised with the purpose of insuring each
10 party efficient case preparation and presentation." Id.
11 	{26} 	Petitioner responds that the district court did not abuse its discretion in its
12 award of attorney fees and costs with the following: (1) "[Petitioner] was the
13 	prevailing party in this case and unnecessarily incurred the cost of calling Dr. Kurtyka
14 to testify because [Respondent] did not contact Dr. Kurtyka to find out what his
15 	testimony would be" prior to the hearing; (2) "[e]ven after Dr. Kurtyka's testimony
16 and after encouragement from the court to settle the case" after the January 8, 2014
17 setting of the child support hearing, "[Respondent] persisted and caused [Petitioner]
18 	to incur additional and unnecessary attorney fees on March 24, 2015"; and (3)
19 "[Respondent] ignored Dr. Kurtyka's report and findings and refused to accept the
14

1 fact that not only is [Son] a disabled adult, but that [Respondent] has an obligation
2 to financially support him." Under these circumstances, we conclude that the district
3 court's decision to award Petitioner attorney fees and costs was a proper exercise of
4 its discretion in accordance with Rule 1-127, the purpose of insuring each party
5 efficient case preparation and presentation, and therefore not an abuse of discretion.
6 CONCLUSION
7 	{27} 	The orders of the district court are affirmed.
8 	{28} 	IT IS SO ORDERED.
9
10
11 	WECONCUR:
12JI.-~
---------------13 	J. MILES HANISEE, Judge
14 	to&~15 	EMIL~ HNE, Judge
15