April 06, 2012 – State of New Mexico ex rel. Human Services Department v. Joseph W. Rawls, No. 30,989

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: Apnil 6, 2012
NO. 30,989

STATE OF NEW MEXICO ex rel.
HUMAN SERVICES DEPARTMENT,

Petitioner Appellee,

V.

JOSEPH W. RAWLS,
Respondent-A ppellant,

and

DIANA DE ALBA-GARCIA,
Respondent.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Mike Murphy, District Judge

Gary K. King, Attomey General

Santa Fe, NM

Anthony C. Porter, Special Assistant Attomey General
Las Cruces, NM

for Appellee

Jones, Snead, Wertheim & Wentworth, P.A.
Roxie P. De Santiago
Santa Fe, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	Joseph W. Rawls agreed to a judgment of paternity and to payment of child
support. Later, through paternity testing, it was determined that he was not the child’s
biological father. Based on Rule 1-060(B) NMRA, Rawls sought in the district court
to have accrued and continuing child support abated on that ground and on the ground
that he never had any relationship with the child. The child had been cared for by the
child’s maternal grandmother. The child’s biological parents had been deported to
Mexico. 	The district court denied relief. 	We hold that, under the unique
circumstances of this case, Rawls should have been granted the relief he requested.
We reverse the district court.
BACKGROUND
{2} 	In November 2002, the New Mexico Human Services Department (HSD)
sought the adjudication of Joseph W. Rawls as the father of a child (Child) and also
sought an order requiring Rawls to pay child support. A district court hearing officer
entered a report and decision in April 2003. 	This report and decision adjudicated
Rawls the parent of Child, required Rawls to begin paying child support, and awarded
judgment against Rawls for retroactive child support. This report and decision was
entered by default because Rawls “failed to appear, answer, or otherwise plead within

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the time prescribe[d] by law and [was therefore] in default.” We will hereinafter refer
to the April 2003 report and decision as “the default judgment.” 	In August 2004,
HSD moved to reopen the case. Subsequently, a stipulated report and decision signed
by the hearing officer and approved by HSD and Rawls was filed with the court. This
August 2004 stipulated report and decision reiterated that Rawls was Child’s parent
and was obligated to pay child support. 	It also contained an order and judgment
determining that Rawls was in contempt of court and could purge the contempt as
long as he was in strict compliance with the support payment and other requirements
set out in the order and judgment. In this Opinion, we refer to the stipulated report
and decision as “the stipulated order.”
{3} 	In February 2009, Rawls moved under Rule 1-060(B) to set aside the default
judgment and the stipulated order on the ground that a paternity test administered in
June 2008 with results acquired in September 2008, with the cooperation of the Child
Support Enforcement Division of the HSD, showed that he was not Child’s biological
father. The court conducted a hearing on that motion in March 2010. At the hearing,
Rawls’ counsel explained that Rawls would testify that he signed the stipulated order
because it was the only option available in order to have his driver’s license reinstated,
that he did not understand signing the stipulated order was an acknowledgment on his
part that he was the biological father of Child, and that he understood HSD would

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schedule a paternity test. He states that when he later became aware, in 2008, that his
driver’s license continued to be suspended for non-payment of child support he again
contacted HSD, now with the assistance of counsel, and was able to schedule paternity
testing. In addition, along with citing to the record of the lab results indicating that
Rawls was not the biological father of Child, Rawls states that Child’s mother had
represented to HSD that Rawls was the father of Child, and that the mother knew the
representation was false because at a hearing in April 2011, when asked for the name
of the biological father, she provided a name other than that of Rawls. We see no
refutation of any of these statements in HSD’s answer brief. In his reply brief, Rawls
states that he “requested the paternity testing from [HSD] when he was first served
with the [p]etition and again when he met with [HSD] officials to discuss his driver’s
license suspension.”
{4} 	In an oral ruling in March 2010, the district court denied Rawls’ motion insofar
as it was grounded on Rule 1-060(B)(1), (2), and (3), but indicated that testimony was
necessary before the court could rule on the applicability of Rule 1-060(B)(5) and (6).
In April 2010, Rawls moved pursuant to Rule 1-060(B)(5) and (6) to abate child
support payments based on the grounds that the paternity test excluded him as Child’s
biological father and that he did not have any emotional relationship with Child. In
May 2010, the court instructed counsel to prepare briefs with points and authorities

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on the application of Rule 1-060(B)(6) relating to the fact that Rawls was excluded as
Child’s biological father. In its points and authorities brief, HSD stated, among other
things, that it did not foreclose the possibility, at some point in the future, of
disestablishing paternity as to Rawls and prospectively setting aside a portion of the
default judgment, contingent upon the cooperation of Rawls’ counsel in gathering
information about Child’s biological father and the maternal grandmother.
{5} 	In November 2010, the court entered an order denying relief under Rule 1-
060(B)(1), (2), and (3) and denying Rawls’ motion to set aside the stipulated order.
Also in November 2010, the court entered an order “denying motion to dismiss
pursuant to [Rule] 1-060(B)(5)(6).” 	The court entered no findings of fact or
conclusions of law and gave no written explanation or ground for the denial. Rawls
appeals the November 2010 order entitled “Order Denying Motion to Dismiss
Pursuant to [Rule] 1-060(B)(5)(6).” On appeal, Rawls asserts that the November 2010
order relating to Rule 1-060(B)(5) and (6) denied his Rule 1-060(B)(5) and (6)
motions to abate ongoing child support and to set aside the default judgment and
stipulated order, and was inconsistent with the law. Furthermore, he “assumes that the
district court relie[d] on the undisputed fact that [he was] not the biological father of
[C]hild.”

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{6} 	Rawls specifically faults the court for failing to grant the prospective relief of
child support abatement requested in his motion to abate child support and for failing
to set aside the default judgment and the stipulated order. He seeks “[p]rospective
relief” as available under “statutes granting courts continuing jurisdiction to modify
and revoke child support orders” by setting aside the default judgment and stipulated
order, thereby setting aside “the determination of paternity and . . . reliev[ing him] of
ongoing child support obligations[.]” 	And he wants to be absolved of all related
accrued child support.
DISCUSSION
Standard of Review
{7} 	Rawls asserts that the issues on appeal are to be reviewed de novo because all
pertinent facts are undisputed, the issues are of pure law, and the district court’s
rulings were not consistent with the law. He also asserts that even if the standard of
review is abuse of discretion, the issues turn on whether the court misapplied the law,
thus calling for de novo review. HSD contends that a ruling on a motion for relief
from a final judgment under Rule 1-060(B) is reviewed for an abuse of discretion.
{8} 	We review denials of Rule 1-060(B) motions generally for abuse of discretion,
unless the issue is one of law. Stein v. Alpine Sports, Inc., 1998-NMSC-040, ¶ 6, 126
N.M. 258, 968 P.2d 769. To the extent an issue requires us to determine whether the

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district court misapprehended the applicable law or otherwise requires us to decide a
pure matter of law, we turn to de novo review. 	N.M. Right to Choose/NARAL v.
Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450; Kinder Morgan CO2
Co., L.P. v. State Taxation & Revenue Dep’t, 2009-NMCA-019, ¶ 9, 145 N.M. 579,
203 P.3d 110.
{9} 	As pertinent to the issues before us, Rule 1-060(B)(5) and (6) read:
On motion and upon such terms as are just, the court may relieve a party
. . . from a final judgment, order[,] or proceeding for the following
reasons:
. . .
(5) . . . it is no longer equitable that the judgment should have
prospective application; or
(6) any other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable time[.]
The Merits
{10} 	HSD seeks to avoid the merits with its argument that Rawls failed to move for
relief within a reasonable time. 	See Rule 1-060(B)(6) (“The motion shall be made
within a reasonable time[.]”); Thompson v. Thompson, 99 N.M. 473, 475, 660 P.2d
115, 117 (1983) (stating that “Rule 60(b)(4), (5)[,] and (6) may be presented within
a ‘reasonable time’”). 	HSD fails to point out where in the record it preserved this
argument. We will not search the record for procedural events to which a party fails

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to cite, and we therefore will not consider HSD’s timeliness point. See Crutchfield v.
N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d
1273 (“Absent [a] citation to the record or any obvious preservation, we will not
consider the issue.”).
{11} 	As we have indicated in this Opinion, Rawls seeks relief from all accrued,
unpaid child support, as well as relief from any obligation for future child support.
We interpret Rule 1-060(B)(5)’s reference to prospective relief to mean relief from the
date the Rule 1-060(B) motion was filed, not from the time of the default judgment
or stipulated order. If the grounds for relief are met, we interpret Rule 1-060(B)(6)
as intended to provide relief with respect to the accrued and prospective child support.
Intermixed in the Rule 1-060(B) analyses is the extent, if any, to which the notion of
changed circumstances under the applicable Uniform Parentage Act, NMSA 1978,
§§ 40-11-1 to -23 (1986, as amended through 2004) (current version at NMSA 1978,
§§ 40-11A-101 to -903 (2009)), is to play a part.
{12} 	The unique circumstances of this case raise a significant issue as to the fairness
of requiring a person to pay child support when he is unerringly determined not to be
the biological father of a child and found to have had no personal relationship with the
child. In this case, of course, this circumstance is set against Rawls’ initial agreement
to paternity in a judgment; the substantial period of time that passed before he

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obtained a paternity test; the consequence of Child’s biological parents being
deported, leaving Child with the maternal grandmother; and the concern about who
should have provided child support and who should continue to provide child support.
Basic notions of fairness and justice strongly suggest that Rawls should not be
compelled to pay the accrued and prospective child support. Nevertheless, we must
balance that view with policies disfavoring vacation of judgments and arguments that
abatement of child support will prejudice HSD and harm Child.
{13} 	The district court did not make things easy for effective appellate review. The
court presumably determined under Rule 1-060(B)(5) that Rawls failed to prove that
it was “no longer equitable that the judgment should have prospective application[.]”
But without this Court considering credibility of witnesses, sufficiency of proof, and
equitable considerations, we have no way of knowing the underlying basis for that
determination. Nor do we know why the court refused to grant relief under Rule 1-
060(B)(6). We are unaware whether the court denied the relief on a “reasonable time”
ground or on an “extraordinary circumstance” ground. Rule 1-060(B)(6) cannot be
used to circumvent the one-year time period or other requirements of Subparts (1), (2),
and (3). 	Resolution Trust Corp. v. Ferri, 120 N.M. 320, 323, 901 P.2d 738, 741
(1995). We are given no reasons why the district court denied relief under Rule 1-
060(B)(5) or (6), and we will not assume that its reason for doing so was based on its

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conclusion that the motion was made pursuant to Rule 1-060(B)(5) and (6) to
circumvent the time requirements of Rule 1-060(B)(1), (2), and (3). 	See State v.
Thayer, 80 N.M. 579, 582, 458 P.2d 831, 834 (Ct. App. 1969) (“We will not assume
facts unsupported by the record.”).
{14} 	That generally we apply an abuse of discretion standard of review in Rule 1-
060(B)(5) and (6) determinations does not mean that every determination under that
rule requires us to apply the abuse of discretion standard in a particular way or that we
must blindly adhere to the discretion aspect of the standard. There are instances in
which this Court can turn to de novo review to determine whether a district court has
abused its discretion. This Court has held that we will determine that a district court
has abused its discretion “when it applies an incorrect standard, incorrect substantive
law, or its discretionary decision is premised on a misapprehension of the law.”
Klinksiek v. Klinksiek, 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P.3d 559 (internal
quotation marks and citation omitted); see also Johnson, 1999-NMSC-028, ¶ 7 (“[W]e
may characterize as an abuse of discretion a discretionary decision that is premised on
a misapprehension of the law.” 	(alteration, internal quotation marks, and citation
omitted)); State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209
(holding that a district court abused its discretion when it exercised its discretion
based on a “misapprehension of the law”). In addition, this Court has recognized that

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“[w]here the court’s discretion is fact-based, we must look at the facts relied on by the
trial court as a basis for the exercise of its discretion[] to determine if these facts are
supported by substantial evidence” and that an abuse of discretion “occurs where the
court’s ruling is clearly against the logic and effect of the facts and circumstances
before the court.” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 60, 134 N.M. 77,
73 P.3d 215 (internal quotation marks and citations omitted).
{15} 	Although no procedural rule requires a district court to explain its reasons or
to set out findings of fact and conclusions of law in connection with its determination
under Rule 1-060(B) following an evidentiary hearing, it behooves the district court
to go beyond a bare ruling with no explanation or finding. We will not grant
substantial, much less virtually automatic deference under such circumstances. We
hold that the district court’s decision is clearly against the logic and effect of the facts
it considered.
{16} 	At the outset, Rawls may have thought he was Child’s biological father.
Evidence in the record indicates that Rawls wanted a paternity test early on and may
have agreed to the stipulated order more out of concern for his driver’s license than
the consequences of his agreement. 	Unless circumstances exist, beyond his early
stipulation, to require a different application of New Mexico’s child support statutes
and case law, we see no reasonable basis on which to saddle Rawls with accrued or

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prospective child support. The question before us is whether the circumstances of this
case are of such an extraordinary nature as to relieve Rawls from the child support;
and, if so, whether Rawls should nevertheless be denied relief because his conduct (his
early stipulation and passive pursuit of paternity testing) may have resulted in undue
prejudice to HSD or harm to Child.
{17} 	We hold that the determination that Rawls is not Child’s biological father after
his admission early on that he was Child’s father is an extraordinary circumstance
under Rule 1-060(B)(6). 	This view is supported by Child’s mother’s apparent
misrepresentation to HSD that Rawls was the father and her later admission in court
that another named man was the biological father. While this circumstance is not a
“changed circumstance” in the nature, for example, of the onset of adverse financial
changes that might require a change in a child support obligation, we think that the
change from a mistaken admission of paternity to proof of non-paternity qualifies as
an extraordinary change of circumstance sufficient to permit Rule 1-060(B)(6) relief
from a child support obligation.
{18} 	Furthermore, HSD fails to show us where in the record Child has been harmed
by Rawls’ conduct or that Child will be harmed to any extent that would justify
burdening Rawls with accrued and prospective child support. 	We have not been
shown that Child has not received adequate support in the past. Nor has it been shown

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that Child will not receive adequate support in the future. In balancing whether Rawls
instead of HSD should provide the support, we come down on Rawls’ side. That HSD
cannot successfully enforce the obligation against Child’s deported mother and
biological father does not change the balance that favors Rawls. To prove that it is or
will be harmful to Child to grant relief to Rawls, HSD had the burden to present
evidence of such harm resulting from Rawls’ conduct. Having failed in that burden,
we see no reasonable basis on which to saddle Rawls with an obligation to pay any
child support. See Atcherian v. State, 14 P.3d 970, 972 (Alaska 2000) (affirming the
district court’s vacation of the default judgment of paternity and awarding a refund of
child support collected after the appellant, having obtained a paternity test excluding
him as the child’s biological father, filed his motion to vacate the judgment); Kilpper
v. State, 983 P.2d 729, 730, 732 (Alaska 1999) (holding that the appellant, who signed
an affidavit acknowledging paternity of a child, was entitled to prospective relief from
future child support payments upon a showing that he was not the biological father of
the child); MAM v. State Dep’t of Family Servs., 99 P.3d 982, 983, 985-86 (Wyo.
2004) (holding that the court abused its discretion in denying the appellant’s motion
to set aside a stipulated paternity order where the appellant proved, among other facts,
that he was not the child’s biological father and that he did not have a relationship
with the child); Williams v. Williams, 843 So. 2d 720, 721, 723 (Miss. 2003) (refusing

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“to sanction the manifest injustice of forcing a man to support a child which science
has proven not to be his” and therefore terminating further child support obligations
notwithstanding a divorce decree in which the appellant swore that he was the father
of the child); M.A.S. v. Miss. Dep’t of Human Servs., 842 So. 2d 527, 528, 531 (Miss.
2003) (en banc) (holding that, notwithstanding a nine-year delay in requesting relief,
and the appellant’s failure to submit to DNA testing earlier, it was “profoundly unjust
to require [the appellant] to continue making child support payments for a child which
is known not to be his” and thereby ordering the trial court to set aside the paternity
and child support order); Wheat v. Commonwealth, 217 S.W.3d 266, 267-69 (Ky. Ct.
App. 2007) (stating that notwithstanding the fact that the appellant had acknowledged
paternity of the child, there was no basis, from an equitable standpoint, to require him
to continue to pay child support considering, among other factors, that he had no
relationship with the child).
{19} 	We therefore set aside the default judgment and the stipulated order. We hold
that Rawls is released from his obligation to pay prospective child support. In this
context, we interpret “prospective” relief to have commenced on February 24, 2009,
the filing date of Rawls’ Rule 1-060(B) motion, which was accompanied by proof that
Rawls is not Child’s biological father.

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{20} 	We further hold that Rawls should not be burdened with the obligation to pay
any accrued child support. 	In Wheat, under circumstances similar to those of this
case, the Kentucky Court of Appeals held that if the district court determined that the
mother of the child, who had “apparently [failed to] disclose the name of the true
biological father when she supplied the name of [the appellant] as the purported father
of [the child,]” was guilty of fraud or misrepresentation, then the accrued child support
should be set aside. 217 S.W.3d at 271. That case was remanded for a hearing on
whether the mother had made a material representation which was false and which
was either known to be false or which was made recklessly, and which was made with
an inducement to be acted upon and was relied upon thereby causing the injury. Id.
The Wheat court instructed the trial court that if, on remand, the factors were met, the
accrued child support should be set aside. Id.
{21} 	Here, Rawls argues that “even the limited record can establish all five of the[]
[Wheat] elements.” Rawls continues:
[Child’s 	mother] 	made 	a 	material 	misrepresentation 	in 	that 	she
represented [Rawls] as the father of . . . Child to [HSD]. 	Such a
representation was false as [Rawls] is not the biological father of . . .
Child. [Child’s mother] knew the representation was false because at the
hearing on April 14, 2011, when asked for the name of the biological
father of . . . [C]hild, she provided a name other than [Rawls]. [Child’s
mother] made the representation so that child support could be collected
from [Rawls] and [HSD] acted upon that representation to file a
[p]etition to name [Rawls] as [the] father of . . . Child. The outcome of
that [p]etition, the related default judgment and stipulated order have all

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caused untold injury on [Rawls]. [Rawls] has accrued over $35,000 in
child support payments for a child that is not his, he has a suspended
driver’s license, is facing criminal repercussions for driving without a
license, has lost his [c]ommercial [d]river’s [l]icense . . . which was the
source of income for himself and his family including three other
children[] and has had to pay attorney fees and costs.
HSD does not specifically respond to this argument in its answer brief. See Santa Fe
Pac. Gold Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 41, 143 N.M. 215, 175
P.3d 309 (stating that where a party declines to address an issue in its answer brief, the
issue is treated as a concession). We are persuaded that, under the particular facts of
this case, the most logical and consistent conclusion is that Rawls should not be liable
for any support for Child, who is not his progeny, and that, pursuant to Rule 1-
060(B)(6), the default judgment, as well as the stipulated order, should be set aside,
leaving Rawls with no obligation as to accrued or prospective child support.
{22} 	In sum, we can see no reasonable basis under the circumstances here on which
to hold Rawls responsible for child support for Child once it was determined that he
was not the biological father of Child, after it was obvious that Child’s mother either
mistakenly or intentionally pointed to Rawls as the father, and absent any harm to
Child.

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CONCLUSION
{23} 	We reverse. The default judgment and stipulated order are hereby set aside to
the extent they purport to establish Rawls’ paternity and require Rawls to pay accrued
child support, as well as any prospective child support.
{24} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
MICHAEL D. BUSTAMANTE, Judge
___________________________________
J. MILES HANISEE, Judge