May 2, 2019- State of New Mexico Human Services Department v. Howard Toney, Jr., No. A-1-CA-37442

. J
1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	Opinion Number: ____ _
3 Filing Date: May 2, 2019
4 No. A-1-CA-37442
5 	STATE OF NEW MEXICO
6 HUMAN SERVICES DEPARTMENT,
7 CHILD 'SUPPORT ENFORCEMENT
8 DIVISION (CSED), and KANEAN
9 TOLEDO,
10 	Petitioners-Appellees,
11 	v.
12 HOWARD TONEY, JR.,
13 	Respondent-Appellant.
14 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
15 	Cheryl H. Johnston, District Judge
16 New Mexico Legal Aid, Inc.
17 .Kathryn Suzanne Almond
18 	Simon Tuck
19 Bernalillo, NM
20 Edna Frances Sprague
21 	Albuquerque, NM
22 for Appellee Kanean Toledo
Court of Appeals of New Mexico
Filed 5/2/2019 11:22 AM
Mark Reynolds

1 New Mexico Human Services Department
2 Child Support Enforcement Division
3 Sarah J. Batzli
4 Larry Heyeck
5 Kristin Sanderson
6 Santa Fe, NM
. 	.
7 for Appellee Human Services Department
8 Titus and Murphy Law Firm
9 Tyson K. Gobble
. 10 Farmington, NM
11 	for Appellant

1 	OPINION
2 IVES, Judge.
3 	{t} 	The district court ordered Howard Toney (Father) to pay child support
4 retroactive to the date of his separation from Kanean Toledo (Mother) pursuant to
5 the New Mexico {Jniform Pare1:1tage Act (NMUPA), NMSA 1978, §§ 40-llA-101
6 to 	-903 	(2009). 1 Father argues 	that the NMUPA's 	retroactive 	child 	support
7 provision, § 40-11-1-636(G), does not apply to him because he acknowledged
8 paternity before Mother and the Child Support Enforcement Division (CSED)
9 petitioned for child support·. We disagree and affirm.
10 BACKGROUND
11 	{2} 	In 2005, when she was fifteen years old, Mother gave birth to a daughter.
12 Mother and Father were not married when their daughter was born, and Father
13 	executed an acknowledgement of paternity. The couple lived together off and on and
14 then separated in 2006. Father only paid Mother child support in 2011 and 2012.
15 	{3} 	Mother assigned her right to child support to the State because it had provided
16 assistance to the child. See generally NMSA 1978, § 27-2-28 (2009). In August of
17 2016, CSED filed a petition on behalf of Mother. and the State seeking child and
18 medical support from Father.
1 	The 	NMUPA 	came 	into 	effect 	on 	January 	1, 	2010, 	replacing 	its
simultaneously-repealed predecessQr statute, the Uniform Parentage Act, NMSA
1978, § 40-11-1 to -23 (1986, as amended through 2004).

1 {4} 	By stipulated order, the district court directed Father to 	make 	monthly
2 payments to Mother for ongoing child and medical support. After considering the
3 parties' legal arguments and testimony, a child support hearing officer concluded
4 that the NMUPA applied and recommended that the district court order Father to
5 pay child support retroactive to his separation from Mother in 2006.
6 	{5} 	Father objected to this recommendation, arguing that Section 40-11A-636(G)
7 did not apply because he had previously acknowledged paternity. Father asserted
8 that he was therefore not responsible for any child support from the time of his
9 daughter's birth in 2005 through the filing of the petition in August 2016.
10 {6} 	The district court overruled the objection and adopted the hearing officer's
11 	recommendation, concluding that the NMUPA applied and authorized an order of
12 	support retroactive to the date of the couple's separation. Father appeals.
13 	DISCUSSION
14 	Standard of Review
15 	{7} 	"We review the setting of child support orders for abuse of discretion."
16 Zabolzadeh v. Zabolzadeh, 2009-NMCA-046, 1 4, 146 N.M. 125, 207 P.3d 359. It
17 is an abuse of discretion for a district court to base a discretionary decision on or
18 	apply an incorrect standard or incorrect substantive law. Id. Father challenges the
19 district court's interpretation of the NMUPA, an issue of statutory construction we
2

1 review de novo. Moongate Water Co. v. City of Las Cruces, 2013-NMSC-018,, 6,
2 302 P.3d 405.
3 TheNMUPA
4 {8} 	To "ascertain the legislative intent" behind the NMUPA, we "begin with [its]
5 plain language." N.M Indus. Energy Consumers v. Pub. Regulation Comm 'n, 2007-
6 NMSC-053, 121, 142 N.M. 533, 168 P.3d 105. "Because we consider statutes in the
7 context of the broader act in which they are situated, we read them in conjunction
8 with statutes addressing the same subject matter, ensuring a harmonious, common-
9 sense readin?." Chatterjee v. King, 2012-NMSC-019, 1 12, 280 P.3d 283. Our
10 interpretations must "facilitate [the statute's] operation and the achievement of [its]
11 	goals." Padilla v. Montano, 1993-NMCA-127, 123, 116 N.M. 398, 862 P.2d 1257.
12 	We "consider the practical implications" of potential interpretations, Bishop v.
1_3 Evangelical GoodSamaritanSocy, 2009-NMSC-036, 111, 146 N.M. 473,212 P.3d
14 361, rejecting those that "defeat [the statute's] intended purpose[,]" Padilla; 1993-
15 	NMCA-127, 123.
16 {9} 	The NMUPA governs the "determination of parentage[,]"§ 40-11A-103(A),
17 which is "the establishment of the parent-child relationship[,]" § 40-1lA-102(H),
18 "the legal relationship" between a parent and child, § 40-11A-102(N). The NMUPA
19 provides two legal mechanisms for determining parentage: ( 1) "the signing of a valid
3

1 acknowledgment of paternity" and (2) "adjudication by the court[.]" Section 40-
2 	l lA-102(H).
3 {10} 	In 	contrast 	to 	an 	adjudication 	of parentage, 	which 	involves 	a judicial
4 proceeding generally governed by our rules of civil procedure, § 40-llA-601, the
5 execution of an acknowledgment of paternity under the NMUPA is a relatively
6 simple, inexpensive,2 and informal process. To execute an acknowledgment, "[t]he
7 mother of a child and a man claiming to be the genetic father [must] sign an
8 acknowledgment of paternity with intent to establish the man's paternity." Section
9 	40-llA-301. Their signatures must be under penalty of perjury and on a form
10 provided by the Bureau of Vital Records and Health Statistics. Section 40-1 lA-
11 	302(A){l )-(2); 	see also 	§ 40-llA-102(E). 	The 	acknowledgment must 	contain
12 various statements indicating that the acknowledging signatory is indeed the child's
13 	father and notifying the signatories of the legal effects of the acknowledgment,§ 40-
14 	l 1A-302(A), and it is void if it states or falsely denies that a different man is the
15 	child's acknowledged, adjudicated, or, in most cases, presumed father. 3 Section 40-
16 	11A-302(B).
2 The NMUP A explicitly prohibits the Bureau of Vital Records and Health
Statistics from charging a fee for the filing of an acknowledgment of paternity.
Section 40-llA-306. 	,
3 The NMUP A defines "presumed father" as "a man who, by operation of l_aw
pursuant to Section [40-l lA]-204 ... is recognized as the father of a child until that
status is rebutted or confirmed in a judicial proceeding[.]" Section 40-11A-102(P).
4

1 {11} 	An acknowledgment of paternity satisfying the requirements described above
2 and filed with the bureau "is equivalent to an adjudication of paternity of a child[,]"
3 § 40-11A-305(A), and is binding on all signatories, § 40-11A-637(A)(l), with two
4 exceptions. The NMUPA allows signatories to avoid an acknowledgment's legal
5 consequences through rescission and challenge, both of which involve judicial
6 proceedings governed by the same rules that govern adjudication of paternity. See
7 § 40-11A-305(A) (providing that a valid acknowledgment is equivalent to an
8 adjudication except as provided in the rescission and challenge statutes); § 40-11 A-
9 307 (providing for rescission); § 40-l lA-308 (providing for challenge within two
10 years based on fraud, duress, or material mistake of fact);§ 40-l lA-309 (describing
11 	procedure for rescission or challenge); § 40-11A-309(D) (providing that proceedings·
12 for rescission and challenge "shall be conducted in the same manner as a proceeding
13 	to adjudicate parentage") .
. 14 	{12} 	The NMUPA also provides for proceedings to enforce the obligations arising
15 	from the parent-child relationship. "[A]ny interested party" may enforce "the
16 obligation of the noncustodial parent" if "existence of the parental relationship is
17 declared, or paternity or a duty of support ha~ been acknowledged or adjudicated
18 under the [NMUPA] or under prior law[.]" Section 40-11A-639(A). A custodial
19 parent or any other interested party may enforce a noncustodial parent's duty to pay
s·

1 child support by timely initiating a "proceeding to adjudicate child support." Section
2 	40-l 1A-607(A).
3 	{13} 	District courts have broad remedial authority in enforcement proceedings. Our
4 Legislature did not cabin their powers to the entry of orders adjudicating paternity
5 pursuant to Section 40-l 1A-636(A). Rather, under Section 40- l 1A-636(G), courts
. 	.
6 may also enter judgments and orders addressing a wide array of common issues
7 involving parents and children-including orders requiring noncustodial parents to
8 fulfill _their "duty of past and future support[.]" Subsection (G) states, in relevant
9 part:
10
11
12
13
14
15
16
17
The court shall order child support retroactive to the date of the child's
birth, but not to exceed twelve years unless there is a substantial
showing that paternity could not have been established and an action
for child support could not have been brought within twelve years of
the child's birth pursuant to the provisions of Sections 40-4-11 through
40-4-11.3 NMSA 1978; provided that, in deciding whether or how long
to order retroactive support, the court shall consider:
( 1) 	whether 	the 	alleged 	or 	pr~sumed 	father 	has
absconded or could not be located; and
(2) 	whether equitable defenses are available. 4
18 Id.
4 The quoted provision of Section 40-l 1A-636(G) is unique to New Mexico.
It was not part of the model legislation from which our_ Legislature derived certain
other provisions of the NMUPA and its predecessor. Nor does this language appear
in a statute in any other state.
6

Application of the NMUPA to Father
1 {14} 	We believe the district court's application of the NMUPA's retroactive
"2 	support provision to Father is consistent with the plain language, structure, and
3 purpose of the NMUP A. By filing a timely petition, CSED sought to enforce "the
4 obligation of the noncustodial P8:rent," 5 § 10-11A-639(A), through a "proceeding to
5 adjudicate child support" under Section 40-1 \A-607. The petition included the
6 undisputed allegation that Father is the child's father, which in tum rested on
7 Father's acknowledgement of paternity. No party challenged the acknowledgement
8 based on allegations of fraud, duress, material mistake of fact, or genetic testing. See
9 generally 	§§ 	40-l lA-308, 	-309, 	-63 l(A). 	Properly 	treating 	the 	unchallenged
10 acknowledgement as the functional equivalent of an adjudication of paternity, the
11 	district court exercised its remedial authority under Section 40-l 1A-636(G). The
12 court considered the parties' arguments and testimony regarding Father's child
13 	support obligations. It then directed Father to fulfill his duty "of past and future
14 support," id., ordering him to pay retroactive to when Father and Mother separated.
5 Although there may be temporal limitations on awards of retroactive support
beyond those explicitly provided for in Section 40-l lA-607, the NMUPA's .statute
of limitations, see § 40-11A-636(G)(2) (providing for equitable defenses to the
award of retroactive support); cf Zabolzadeh, 2009-NMCA-046, ,-r 6, we express no
opinion on their applicability in cases. where, as here, there has been no prior
adjudication of parentage.
7

1 In our view, the court's actions were well within its authority under the NMUPA and
2 therefore were not an abuse of discretion.
3 	{15} 	Father sees this differently. 	He argues that the NMUP A's 	retroactivity
4 provision-which on its face is generally applicable-does not apply to him because
5 he acknowledged paternity before CSED filed the petition. Father relies heavily on
6 a pair of cases in which fathers sought to be exempted from the UPA's retroactive
7 child support provision: Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779,975
8 P.2d392, andZabolzadehv. Zabolzadeh, 2009-NMCA-046, 146N.M. 125, 207P.3d ·
9 359. But neither case dictates the holding Father seeks. The issue in Sisneroz was
10 	"whether the UPA applie[ d] to fathers who do not deny paternity of their children
11 	but never formally acknowledge their paternity or assume legal responsibility for
12 their 	support." 	1999-NMCA-039, 	, 	6. 	Rejecting 	the 	father's 	request 	for 	an
13 	exemption, we held that the UPA authorized retroactive support. See id. , 	10. In
14 Zabolzadeh, the issue was whether the UPA authorized retroactive support in a
15 	proceeding brought in New Mexico twelve years after a California court had
16 adjudicated paternity based on a stipulation by the mother and father. 2009-NMCA-
17 046, ,, 1-4. In the particular circumstances of that case, we reversed the award of
18 retroactive child support, finding error in the district court's adjudication of paternity
19 "for the second time when [the f]ather's paternity had already been judicially
20 acknowledged and· adjudicated in the California court." Id., 5; see id.,, 6-7.
8

1 {16} 	After Sisneroz and Zabolzadeh, 	we addressed a mother's request for an
2 exemption from the UPA's retroactive child support provision in Diamond v.
3 Diamond, 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578, rev 'don other grounds,
4 2012-NMSC-022, 283 P.3d 260. There, we rejected the mother's argument "that the
5 UPA was an improper vehicle for any award of child support because [her] parentage
6 was not in dispute." Id. 1 27. We explained that, in Zabolzadeh, "[t]he father's
7 paternity was established by court order" in California years before the mother
8 petitioned for retroactive child support in New Mexico. Diamond, 2011-NMCA-
9 002, 129. We then distinguished Zabolzadeh, reasoning that "[i]n the present case.
10 	.. [the m]other's parentage of [the d]aught~r, while not disputed, had never been
11 judicially acknowledged 	and adjudicated." 	Diamond, 	2011-NMCA-002, 1 30.
12 Accordingly, we concluded in Diamond that the UPA was an "appropriate vehicle"
13 	for determination of parentage and retroactive child support.6 Id. 133.
14 {17} 	Like Diamond, Father's case is distinct fromZabolzadeh. Just as the parentage
15 	of the mother in Diamond was not judicially acknowledged and adjudicated before
16 the 	UPA 	proceedings 	were 	initiated, 	Father's 	parentage 	was 	not 	judicially
6 Sisneroz, Zabolzadeh, and Diamond involved two different versions of the
UPA. See Diamond, 2011-NMCA-002, 1 5 (applying UPA as amended through
2004); Zabolzadeh, 2009-NMCA-046, 11 (same); Sisneroz, 1999-NMCA-0.39, 11
(applying the UPA as amended through 1997). No party invites us to revisit the
holdings or reasoning of Sisneroz, Zabolzadeh, and Diamond in light of the changes
that came with the NMUPA, and we need not do so to resolve Father's appeal.
9

1 acknowledged and adjudicated at any time before CSED filed its petition in 2016.
2 Father does not contend otherwise.
3 	{18} 	Instead, Father asks us to expand the narrow exemption we recognized in
4 Zabolzadeh so that it includes all fathers who acknowledge paternity through the
5 informal procedures in the NMUP A before they are named as respondents in an
6 enforcement proceeding. Father argues that he enjoys an exemption from the
7 NMUPA's retroactive 	support provision because he previously acknowledged
8 paternity. Under Father's theory, an acknowledgement of paternity executed before
9 a petition for 	support is filed 	should have the same preclusive 	effect as 	an
10 adjudication of parentage entered by a court before a support petition is filed.
11 	{19} 	Whether Father's argument has merit turns on the meaning of Section 40-
12 	l 1A-305(A), which states: "Except as otherwise provided in Sections [40-l lA]-307
13 	and [40-l lA]-308[,] ... a valid acknowledgement of paternity filed with the bureau
14 is equivalent to an adjudication of paternity of a child." In discerning the legislative
15 	intent behind this equivalency provision, we consider its plain language in light of
16 its "function within [the] 	comprehensive legislative scheme" 	of the NMUPA,
17 including the 	enforcement and remedial provisions ·governing 	proceedings to
18 	adjudicate child support. State v. Rivera, 2004-~SC-001,, 13, 134 N.M. 768, 82
19 P.3d 939. "Equivalent" means "like in signification or import" or "corresponding or
20 virtually identical especially in effect or function." Equivalent, Merriam-Webster,
10

1 https://www.merriam-webster.com/dictionary/equivalent 	(last 	updated 	Apr. 	7,
2 2019); accord Equivalent, Black's Law Dictionary (9th ed. 2009) (defining term as
3 "[ e]qual in ... force, ... effect, or significance" or "[ c]orresponding in effect or
4 function"). 	Accordingly, to determine the meaning of the equivalence between
5 adjudications and acknowledgments of paternity, we focus on the effect, function,
6 and import of the competing interpretations in the child support context.
7 {20} 	Under Father's reading of the equivalency language in Section 40-1 lA-
8 305(A), 	adjudication 	and 	acknowledgement 	would 	have 	opposite 	effects 	and
9 functions. Despite its mandate that they be treated "equivalently," the NMUPA
10 would prohibit retroactive support when paternity is acknowledged and allow it
11 	when paternity is adjudicated. We have found nothing in the NMUPA to suggest
12 that 	our 	Legislature 	intended 	for 	the 	two 	legally 	equivalent 	mechanisms 	of
13 	establishing paternity to have opposite effects on children, parents, and the state. We
14 therefore reject Father's interpretation of the equivalency provision and decline his
15 	invitation to exempt acknowledged fathers from the NMUPA remedy of retroactive
16 support. 7
7 The parties discuss our calendar notice and summary disposition in State ex
rel. Human Services Department v. Kindred, No: 33,541, mem. op. (N.M. Ct. App.
July 1, 2014) (non-precedential), in which we reversed the district court's award of
retroactive support. In our notice of proposed summary disposition, ·we indicated, as
Father argues here, that the NMUPA's retroactivity provision does not apply when
a father has acknowledged paternity.before judicial proceedings regarding paternity
11

1 {21} 	Instead, 	we 	hold 	that 	the 	NMUPA 	authorizes 	district 	courts 	to 	order
2 retroactive support when an acknowledgement of paternity has established the
3 parent-child relationship. Our holding rests on the plain meaning of the equivalency
4 provision and our understanding of the NMUPA's structure and purpose. We begin
5 where a district court begins its analysis of a petition for child support: the threshold
6 question 	of whether paternity is contested or uncontested. 	When paternity 1s
7 contested, 	the 	NMUPA 	requires 	the 	court 	to 	adjudicate 	paternity 	before 	it
8 adjudicates child support. The existence of an acknowledgement of paternity does
9 not necessarily mean that paternity will be uncontested. When someone challenges
10 an 	acknowledgement, 	the 	court 	must 	adjudicate 	paternity. 	See 	§§ 	40-llA-
11 	308, -309(0), -636(A). If, at the end of the adjudicatory process, the court finds
or child support begin. We "suggest[ed] that the basis for distinguishing Zabolzadeh
that 	existed 	in 	Diamond'-the 	lack 	of a 	''judicial[] 	acknowledge[ment] 	and
adjudica[tion]" of parentage, Diamond, 2011-NMCA-002, 130-was inapplicable
because the NMUPA's equivalency provision "equates an acknowledgment ... to
an adjudication of paternity[.]" We therefore proposed "rel[iance] on Zabolzadeh"
in reasoning that the NMUPA did not apply because paternity was not in dispute.
Our ensuing memorandum opinion noted that "[n]o memorandum opposing
summary reversal ha[d]. been filed, and the time for doing so ha[d] 	expired."
Kindred, No. 33,541, mem.op.11. Having now considered the issue with the benefit
of full briefing, which we did not have in Kindred, we resolve. the issue differently
for the reasons we explain in the text of this opinion.
12

1 paternity, it proceeds to the remedial phase, which entails application of the child
2 support provisions of Section 40-11A-636(G) to the facts of the case before it.
3 	{22} 	AI_l unchallenged acknowledgement of paternity, such as the one at issue in
4 Father's appeal, gives the parties. and the courts a dramatically shorter path to the
5 same destination: the child support remedies in Section 40:-11A-636(G). When an
6 acknowledgement goes unchallenged, paternity is uncontested, and the court moves
7 directly to the determination of remed_ies. The only remaining step is to enforce the
8 father's duty of support by entering a judgment or order, which may include a
9 provision requiring "retroactive" or "past" support. Section 40-l 1A-636(G). The
10 acknowledgement shortcut obviates the need for further proceedings regarding
11 	paternity. 8 See § 40-1 lA-201(8)(2) ("The father-child relationship -is established
12 	[by] an effective acknowledgment of paternity ... unless the acknowledgment has
13 	been rescinded or successfully challenged[.]").
14 	{23} 	An unchallenged acknowledgement conclusively establishes paternity,just as
15 	the court's adjudication of paternity would have if a party had contested paternity.
16 In other words, "a valid acknowledgement of paternity . . . is equivalent to an
17 adjudication of paternity." Section 40-l 1A-305(A). Because they are equivalents,
18 	both a valid acknowledgement of paternity and an adjudication of paternity authorize
8 Despite the informal nature ·of acknowledgment execution, the court may Iiot
even "ratify" an unchallenged acknowledgement. Section 40-l lA-310. 	·
13

1 a court to order child support, including retroactively. Valid acknowledgements have
2 the same function and effect as adjudications in the child support adjudication
3 process.
4 {24} 	Our holding today" advances the Legislature's goal of broadly applying the
5 NMUPA to ensure that it serves its important purposes, unhindered by overly
6 technical application of provisions designed to ensure that all parents contribute
7 equitably to their children's financial support. Our Suprem~ Court has recognized
8 that "the Legislature clearly intended that the UPA have broad application."
9 	Chatterjee v. King, 2012-NMSC-019, ,r 7, 280 P.3d 283 (internal quotation marks
10 omitted). 9 Our courts must therefore read the statute in light of the goals the
11 	Legislature sought to .achieve, see id. ,r,r 33-34, including protecting "the interest that
12 	children have in their own support." Id. ,r 33. Were we to adopt Father's position and
13 	recognize a categorical exemption from the NMUPA for acknowledged fathers,
14 children would be deprived of important resources they are entitled to from birth;
15 	This would undermine a key legislative goal and violate an overarching command
16 	of our family law jurisprudence: "in every proceeding in which minor children are
17 involved, a court's primary obligation is to further the best interests of the child."
18 	Wasson 	v. 	Wasson, 	1978-NMCA-092, ,r 4, 	92 N.M. 	162, 584 P.2d 713; 	see
9 Although Chatterjee interpreted the NMUPA's predecessor, nothing in the
NMUPA gives us any reason to believe that our Legislature intended for the
NMUPA to apply more narrowly than the UP A.
14

l 	Chatterjee, 2012-NMSC-019, 1 37 ("[T]he child's best interests are served when
2 intending parents physically, emotionally, and financially support the child from the
3 time the child comes into their lives."); Wallis v. Smith, 2001-NMCA-Ol 7, 110, 130
4 N.M. 214, 22 P.3d 682 ("Making each parent financially responsible for the
5 conception and _birth of children . . . illuminates a strong public policy that makes
6 paramount the interests of the child.").
7 {25} 	A judicially crafted exemption for acknowledged fathers would also harm the
8 person who has custody of the child-often the mother-by requiring that person to
9 shoulder more than her or his fair share. See Sisneroz, 	1999-NMCA-039, 1 15
10 ("Retroactive child support is for the benefit of a child as well as for that child's
11 	custodian."). All parents have a duty to support their children starting at birth. See
12 Stringer v. Dudoich, 1978-NMSC-071, 17, 92 N.M. 98,583 P.2d 462 ("A child has
13 	the right of support from his parents whether or not he is in their cu_stody."); Mintz
14 v. Zoernig, 2008-NMCA-162, 1 15, 145 N.M. 362, 198 P.3d 861 (recognizing that
15 	"a natural father is required to support his children" and that child support is a
16 parent's most important obligation). The NMUPA codifies this duty 	for 	both
17 acknowledged and adjudicated fathers. Acknowledging paternity is a way for a
18 	father to accept his share 	of financial responsibility for a child, not to 	shift
19 responsibility to the mother or another custodian.
15

1 {26} 	In addition, Father's requested exemption would harm the state, which "has a
2 strong interest in ensuring that a child will be cared for, financially and otherwise,
3 by two parents" because the state "ultimately assume[ s] the responsibility of caring
4 for the child." Chatterjee, 2012-NMSC-019, , 	32. Indeed, protecting this state
5 interest was "one of the primary reasons that the original UPA was created," and, as
6 our Supreme Court has recognized, "it makes little sense to read the statute without
7 keeping this overarching legislative goal in mind." Id. 	Father's reading of the
8 NMUPA would undermine this goal.
9 	{27} 	Father's reading would also undermine the goal of encouraging parents to
10 choose the simpler, faster, and less expensive mechanism for determining paternity:
11 	acknowledgement. The NMUPA requires the signature of both parents for an
12 acknowledgment 	of paternity 	to 	be 	valid. 	Sections 	40-l lA-301, 	-302(A)(2).
13 	Custodial parents would have a powerful incentive to withhold their signatures were
14 we to hold, as Father urges, that signing an acknowledgment precludes retroactive
15 	support.
16 	{28} 	Even 	if we 	identified 	significant ambiguity 	in the 	NMUP A's 	relevant
17 provisions, which we do not, we would reject Father's proposed holding because it
18 would lead to "absurd [and] unjust" results. In re Portal, 2002-NMSC-Ol l,, 5, 132
19 N.M. 	171, 	45 	P.3d 	891 	(internal 	quotation 	marks 	and 	citation 	omitted). 	A
20 fundamental principle of our family law jurisprudence is that children should not "be
16

1 penalized because of the decisions that their parents make[.]" Chatterjee, 2012-
2 NMSC-019,, 33; see Padilla v. Montano, 1993-NMCA-127,, 31, 116 N.M. 398,
3 862 P.2d 1257 (interpreting the UPA to prevent the child from being punished for
4 the mother's "failure to pursue a [claim] for paternity and support during [the c]hild' s
5 minority"). Father's proposed exemption would violate this principle by depriving
6 certain children of financial support based on the action or inaction of their parents.
7 An 	exemption 	would 	unjustly 	penalize 	children 	whose 	fathers 	acknowledge
8 paternity but fail to support their children and whose mothers ( or other custodians or
9 interested parties) do not immediately petition for child support. Every such child ·
10 would 	be 	deprived 	of 	support 	for 	all 	of 	the 	time 	between 	the 	father's
11 	acknowledgement and the filing of the petition, regardle§s of the circumstances.
12 	{29} 	We can imagine numerous hypothetical situations that illustrate the injustice
13 	and absurdity of such an approach. We offer two. Consider first a child whose
14 unmarried father and mother acknowledge paternity when the child is born. The
15 	father then fails to provide financial support. Due to a serious illness the mother
16 	suffers shortly after the child's birth, she is unable to petition for support for six
17 months. Under Father's proposed holding, the child would be deprived. of the
18 father's support for six months, and the mother (and perhaps the State) would bear
19 the burden of supporting the child during that time.
17

1 {30} 	Comparing this hypothetical situation to a similar one further confirms the
2 illogic of exempting fathers who have acknowledged paternity. The facts are the
3 same 	as 	those 	described 	above-with 	one 	exception. 	The 	father 	does 	not
4 acknowledge paternity. Instead, after the mother re~overs from her illness, she
5 successfully petitions for an adjudication of paternity. Under Father's proposed
6 interpretation of the NMUP A, a court could order support for this child retroactive
7 to his or her birth but could not order the same support for the child whose father
8 previously acknowledged paternity. We do· not believe the NMUPA arbitrarily
9 draw~ consequential lines between groups of children, making each child's financial
10 	support depend on whether or not the child's father chooses to acknowledge
11 	paternity before the child's mother chooses to initiate judicial proceedings. 10 See
12 	Chatterjee, 	2012-NMSC-019, 	, 	33 	(recognizing that 	children 	should not 	be
13 	penalized for their parents' choices).
10 Our interpretation of the NMUPA's retroactivity provision avoids the
constitutional questions and potential statutory discord that .troubled the district
court. See Chatterjee, 2012-NMSC-019,, 18 (interpreting UPA broadly "to avoid
an interpretation ... that woμld raise constitutional concerns"); State v. Smith, 2004-
NMSC-032,, 13, 136 N.M. 372, 98 P.3d 1022 ("[O]ur task is to construe statutes in
harmony whenever possible."). Concluding that the NMUPA deprives certain ·
children of retroactive support would raise equal protection questions. S~e U.S
Const. amend. XIV,§ 1; N.M. Const. art. II,§ 18. It would also raise questions under
the NMUPA's equal rights provision, Section 40-l lA-202. See id. ("A child born to
parents who are not married to each other has the same rights pursuant to the law as
a child born to parents who are married to each other."). We need not answer those
questions to decide Father's appeal. 	·
18

1 {31} 	Other arbitrary results would flow from Father's proposed holding. Children
2 whose parents unsuccessfully attack an acknowledgment of paternity would be
3 entitled to retroactive support, but children whose parents execute but do not attack
4 	ari acknowledgment would not. The NMUPA provides two methods a signatory may
5 use to attack an acknowledgement of paternity to· avoid its legal effects: rescission,
6 § 40-llA-307, 	and challenge, 	§ 40-llA-308. 	Both methods 	involve judicial
7 ·proceedings that "shall be conducted in .the 	same manner as a proceeding to
8 adjudicate parentage." Section 40-11A-309(D). And, as Section 40-11A-636(A)
9 provides, 	proceedings 	to· 	adjudicate 	parentage 	produce 	orders 	adjudicating
10 parentage. It follows that Section 40-1 lA-636 applies when a party attacks an
11 	acknowledgement, whether by rescission or challenge. WJ?.en an attack fails, and a
12 court determines that an acknowledgment is binding, the court is authorized to enter
13 	an order adjudicating a signatory to be the father, an order that under Section 40-
14 	11A-636(G) could be accompanied by an order for retroactive support. Father's
15 	reading 	would thus 	authorize retroactive 	support for 	children 	whose 	parents
16 acknowledge paternity and later launch failed attacks, but prohibit it for children of
17 parents who execute an acknowledgement and never attack it. Surely the Legislature
18 	did not intend to draw such an arbitrary, unjust distinction.
19 	{32} 	Father's final argument ·is ~hat applying the NMUPA's retroactive support
20 provision to fathers who have previously acknowledged paternity, as he did, would
19

1 be inequitable because it would reward mothers and other custodians who fail to
2 promptly petition for child support, as he claims Mother did. But applying the
3 NMUPA's retroactive support provision does not prohibit parents from presenting
4 equitable arguments like Father's. On the contrary, under the NMUPA, "in deciding
5 whether or 4ow long to order retroactive support, the court shall consider[,]" among
6 other things, "whether equitable defenses are applicable." Section 40-11A-636(G).
7 Instead of categorically forbidding or categorically requiring retroactive support, the
8 NMUPA calls for a case-by-case approach to retroactive support issues, including
9 consideration of any equitable defenses.
10 {33} 	Adhering to the NMUPA's provisions, the district court gave Father the
11 	opportunity to present his equitable argument. The district court weighed the parties'
12 competing arguments and evidence about whether Mother's actions constituted
13 	waiver, including Mother's testimony about her efforts to locate Father for the
14 purpose 	of seeking child support and the parties' conflicting testimony about
15 	whether Mother ever asked Father to stop paying child support. 11 The court then
11 Neither CSED nor Mother questioned whether waiver is a viable defense.
See generally Webb v. Menix, 2004-NMCA-048, 114-11, 135 N.M. 531, 9'0 P.3d
989 (discussing two kinds of common-law waiver in the child support context);
Sisneroz, 1999-NMCA-039~ 111 (declining to rule·on mother's argument "that she
could not bind her child to a waiver of retroactive child support without court
appointment of a guardian ad litem and some measure of judicial approval").
20

_/
1 made a case-specific decision about whether to order retroactive support, as the
2 NMUP A requires.
3 	CONCLUSION
4 {34} 	We affirm the district court's order requiring Father to pay retroactive child
5 support. We remand for further proceedings consistent with this opinion.
6 	{35} 	IT IS SO ORDERED.
7
8
WE CONCUR:
.. 	.,
9 	j,,~ 	~,·
10 J. MILES HANISEE, Judge
21