Child Support Annotations

Bests interests of the child - “[T]he child’s best interests are served when intending parents physically, emotionally, and financially support the child from the time the child comes into their lives.” Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283.

Child should not penalized – Children should not be penalized because of the decisions that their parents make. Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283; Padilla v. Montano, 1993-NMCA-127, 116 N.M. 398 (interpreting the UPA to prevent the child from being punished for the mother’s failure to pursue a claim for paternity and support during the child’s minority).

District court’s obligation – “In every proceeding in which minor children are involved, a court’s primary obligation is to further the best interests of the child.” Wasson v. Wasson, 1978-NMCA-092, 92 N.M. 162.

Establishing paternity – Establishing paternity is found to be in the best interests of the child. Tedford v. Gregory, 1998-NMCA-067, 125 N.M. 206, cert. denied, 125 N.M. 147. Trial court will not determine paternity solely on the basis of a biological relationship between the child and the putative father. Id. However, the best interests of the child standard is applicable in a paternity or retroactive child support action only when the child involved in such proceeding is a minor and has developed a close emotional attachment to the presumed parents so that court recognition of another parent would be emotionally or otherwise damaging to the child. Id.

Strong public policy – “Making each parent financially responsible for the conception and birth of children . . . illuminates a strong public policy that makes paramount the interests of the child.” Wallis v. Smith, 2001-NMCA-017, 130 N.M. 214.

The bond between a child and an adult that is not his/her legal parent – New Mexico recognizes that children form parent-child bonds with persons other than their legal parents. See, Cook v. Brownless, 1950-NMSC-053, 54 N.M. 227 (grandfather awarded custody over a biological father’s objection); Ex parte Pra, 1930-NM-038, 34 N.M. 587 (custody awarded to uncle with whom a child bonded over the biological mother’s objection, even absent mother’s unfitness); A.C. v. C.B., 1992-NMCA-012, 113 N.M. 581 (child can have two mothers in appropriate circumstances).

Abatement – Annual abatement of child support is not a deviation from guidelines but such deviations are explicitly provided for in Subsection A of Section 40-4-11.1. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485.

Actual expenditures vs. presumed amount – Husband presented evidence of wife’s “actual” expenses in arguing that the guidelines amount were too high; however, husband’s computations of what wife had been spending on their children did not establish that additional expenditures would be harmful. Leeder v. Leeder, 1994-NMCA-105, 118 N.M. 603.

Child support for high school child over 18 – Mother, who supported child that was now 18 years of age but still in high school, entitled to bring an action for past-due child support. Urias v. Nieto (Memorandum Opinion, October 23, 2018), citing, Brannock v. Brannock, 1986-NMSC-042, 104 N.M. 385 (recognizing that a parent who provides support for a child may file a claim for past-due child support because the right to seek such payments belongs to the person who supported the child).

Child Support for disabled child – Permanent child support can be awarded past emancipation and indefinitely, based on the common law duty to support disabled children, if the child’s disability existed before emancipation. Cohn v. Cohn, 1997-NMCA-011, 123 N.M. 85.

Child support guidelines are a presumption – The statutory guidelines are designed to establish an adequate standard of support for children, subject to the ability of the parents to pay it. Rosen v. Lantis, 1997-NMCA-033, 123 N.M. 231. It is not dependent on the martial relationship of the parents to each other, but is determined by the relationship of the child to the adults. Tedford v. Gregory, 1998-NMCA-067, 125 N.M. 206, cert. denied, 125 N.M. 147. “The guidelines are not intended to reflect what the parents have in fact been spending for the care, maintenance, and education of their children. Rather, they set the presumptive figure for what parents should be spending.” Leeder v. Leeder, 1994-NMCA-105, 118 N.M. 603 (italics in original).

Deductions - Guardian ad litem fees may not be deducted from child support. Grant v. Cumiford, 2005-NMCA-058, 137 N.M. 485

Discretion of the court – “Child support determinations are an area of the law in which trial courts are allowed broad discretion.” Peterson v. Peterson, 1982-NMSC-098, 98 N.M. 744; Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737.

Emancipation of minor – Marriage or other conditions may emancipate a child from his or her status of minority prior to attainting the age of 18, thereby relieving a parent of the child support obligation. Mason v. Mason, 1973-NMSC-031, 80 N.M. 720; Diamond v. Diamond, 2011-NMCA-002, 149 N.M. 133, reversed on other grounds, 2012-NMSC-022, 283 P.3d 260.

Factors to consider in establishing child support (pre-guidelines) – The district court is required to consider ten “guidelines” when exercising its discretion to determine a proper child support award. Spingola v. Spingola, 1978-NMSC-045, 91 N.M. 737. The factors to be considered are: (1) the financial resources of both parents; (2) the lifestyle the children would have enjoyed if the family remained intact and their current income; (3) additional advantages the parties can afford above their actual needs, but this does not mean providing “luxuries or fantastic notions of style . . . not normal for the stable, conservative upbringing . . .”; (4) whether the custodial parent is able to, and so does, foster good relationships between the non-custodial parent and the children; (5) current guidelines; (6) the number of children; (7) ages of parties and the children; (8) the best education that the parties can afford; (8) whether additional children have been born; and (10) any subsequent remarriage. Id. The children’s past lifestyle may be used to assess the fairness of a child support award. Roberts v. Wright, 1994-NMCA-022, 117 N.M. 294.

Medical support vs. child support – Medical coverage costs for a child are in addition to, rather than in lieu of, child support mandated by the statute. Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779

Split custody (Erickson – In case where there is split custody of multiple children, use one worksheet for each household and then subtract the difference for an amount paid from the party with the lower child support obligation to the party with the higher obligation; the difference is the amount paid. Use worksheets A and/or B as appropriate, depending on the time the children spend in each household. Erickson v. Erickson, 1999-NMCA-056, 127 N.M. 140.

Taxpayers should not bear the burden – The district court cannot discharge a parent of his or her duty to support his or her child and thereby place the burden on the taxpayers. Martinez v. Martinez, 98 N.M. 535, 1982-NMSC-097.

• Child-care costs – Under Subsection H of Section 40-4-11.1, the trial court is required to include child-care costs in its computation. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.
  
  Child-care costs, paid by the mother while she attended college in pursuit of a college degree, were incurred “due to employment or job search” for purposes of calculating child support obligations under Subsection G of 40-4-11.1. Alverson v. Harris, 1997-NMCA-024, 123 N.M. 153.


• Prior born children – The use of “prior children” in the text of 40-4-11.1C(2)(d) controls over the use of “other children” in the instructions for Worksheet A. The phrase “prior children” refers to birth order and not to the timing of child support orders. Thompson v. Dehne, 2009-NMCA-120, 147 N.M. 283
  
  In a child support proceeding to obtain a support order for the second of father’s three children, where each of father’s three children had a different mother and support orders had been entered for father’s first child and third child before petitioner filed a petition for a support order for the second child, the proper calculation of the second child’s support should have been determined by deducing only the amount of the first child’s support from father’s income and not the amount of the third child’s support. Thompson v. Dehne, 2009-NMCA-120, 147 N.M. 283.


• Private School – Trial court did not err in including the costs of private school in child support calculations. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.


• Recreational, educational and travel expenses – These type of expenses are included within the basic child support provided by the child support guidelines. Klinksiek v. Klinksiek, 2005-NMCA-008, 136 N.M. 693.

• Concealment – Father was permitted to assert a defense to mother’s claim for child support arrearages where mother concealed her (and the child’s) whereabouts and father made reasonable efforts to locate her. Williams v. Williams, 1989-NMCA-072, 109 N.M. 92.
• Consideration required - For a valid waiver of retroactive child support, there must be adequate consideration. Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779
• Equitable estoppel – To establish equitable estoppel, a party must show: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts. Gilmore v. Gilmore, 2010-NMCA-013, 147 N.M. 625.
• Estoppel against government – A party seeking to establish estoppel against the government must establish that: (1) the government knew the facts; (2) the government intended its conduct to be acted upon or so acted that the party had the right to believe it was so intended; (3) the party must be ignorant of the true fats; and (4) the party reasonably relied on the government’s conduct to that party’s detriment. Hanson v. Turney, 2004-NMCA-069, 136 N.M. 1.
• Laches – The doctrine of laches prevents litigation of stale claims where the claims should have been brought at an earlier time and the delay has worked to the prejudice of the party resisting the claim. Collado v. City of Albuquerque, 2002-NMCA-048, 132 N.M. 133. There are four elements to establish the claim: (1) conduct by defendant giving rise to the situation for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had knowledge or notice of the defendant’s conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge on the part of the defendant that the complainant would assert the right on which the suit is based; and (4) injury or prejudice to the defendant in the event that the relief is afforded to plaintiff or the suit is not held to be barred. Id.
• Termination of the parent-child relationship – A termination of parental rights severs the parent-child relationship, including the child support obligation. Aeda v. Aeda, 2013-NMCA-095, 310 P.3d 646.
• Waiver – An intentional waiver of child support arrears requires: (1) a known legal right; (2) relinquished for consideration; and (3) the waiver of which does not infringe upon the rights of others. Webb v. Menix, 2004-NMCA-048, 135 N.M. 531; Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779, quoting, McCurry v. McCurry, 1994-NMCA-047, 117 N.M. 564.
• Waiver by Acquiescence – A waiver by acquiescence arises when a person knows he is entitled to enforce a right and neglects to do so for such a length of time that under the facts of the case the other party may fairly infer that he has waived or abandoned such right. Webb v. Menix, 2004-NMCA-048, 135 N.M. 531; Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779. “Waiver by acquiescence may arise where the evidence shows the existence of an agreement . . . supported by consideration, and where the agreement has been acquiesced in over a period of time under the circumstances giving rise to estoppel.” Gilmore v. Gilmore, 2010-NMCA-013, 147 N.M. 625. Neither an obligor’s good faith nor an obligee’s silence nor a combination of both alone is sufficient to relieve an obligor of child support obligations. Bustos v. Bustos, 2000-NMCA-040, 128 N.M. 842. Mother’s silence and conduct in accepting the unilaterally reduced child support payments, without more, was insufficient to support a finding of waive of her right to child support arrearages as provided for in the divorce decree. McCurry v. McCurry, 1994-NMCA-047, 117 N.M. 564.

• Discretion of the court – The district court has discretion to deviate from the child support guidelines. Jury v. Jury, 2017-NMCA-036, 392 P.3d 242.
  
  Any deviation from the child support guidelines amount shall be supported by a written finding that application of the guidelines would be unjust and inappropriate. A finding that rebuts the child support guidelines shall state the amount of support that would have been required under the guidelines and the justification of why the order varies from the guidelines. Circumstances creating a substantial hardship in the obligor, obligee or subject children may justify a deviation upward or downward from the amount that would otherwise be payable under the guidelines. Section 40-4-11.2 NMSA 1978.
  
  Trial court erred in departing from the statutory child support guidelines without first determining the amount due under the guidelines, in failing to clearly indicate how it arrived at its award, and in failing to explain its deviations from the guidelines. Tedford v. Gregory, 1998-NMCA-067, 125 N.M. 206, cert. denied, 125 N.M. 147.
  
  It is error to deviate from the child support guidelines in calculating the parties’ gross incomes except as authorized by statute or appellate case law, and it is also error to deviate from the child support guidelines in any manner without providing written justification for such deviation. Jury v. Jury, 2017-NMCA-036, 392 P.3d 242.
  
  The child support guidelines allow wife to make a proper showing that there should be a deviation from the presumptive amount of her gross income. Klinksiek v. Klinksiek, 2005-NMCA-008, 136 N.M. 693.

• Illegitimate children are entitled to same support rights as legitimate children. Stringer v. Dudoich, 1978-NMSC-071, 92 N.M. 98

• Child’s income – Under Section 40-4-11.1, child support is calculated based on the parents’ gross income. There is no provision for calculating basic child support based on the child’s income. Rather, the child’s income (whether from social security, his or her own earnings, from a trust established by grandparents or other sources) is relevant solely as a ground for deviating from the guidelines pursuant to 40-4-11.1. Pederson v. Pederson, 2000-NMCA-042, 129 N.M. 56.
• Dividend earnings - Use of the father’s dividend earnings in the year prior to the year in question was error where it was shown that his dividend investments changed from year-to-year. Boutz v. Donaldson, 1999-NMCA-131, 128 N.M. 232. Investment dividend income from most recent period, even if only a partial calendar year, should be used instead of prior calendar year. Id.
• Imputing income – Under Subsection C(1) of 40-4-11.1, the court should have imputed income from full-time employment to the mother even though she did not work full-time during the marriage. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.
• Imputing income – minimum wage – Minimum wage may be imputed to a parent has no recent employment or earnings history and that parent has the capacity to earn minimum wage. The minimum wage to be imputed to that parent is the prevailing minimum wage in the locality where that parent resides. Section 40-4-11.1(D)(2)(effective July 1, 2021)
• Imputing income – parent’s ability to work as an unauthorized alien – The Immigration Reform and Control Act of 1986 (ICRA) provides that it is unlawful for an employer to knowing employ an “unauthorized alien” which is a noncitizen or non-national who is not authorized to work based upon IRCA’s requirements. Employers who violate it may face civil fines and criminal prosecution. ICRA does not subject unauthorized aliens who seek or obtain employment in the United States to criminal or civil sanctions. An unauthorized alien who works without authorization may be subject to criminal prosecution only if he knowingly uses forged, counterfeit, altered or falsely-made documents to obtain employment. Thus, an unauthorized alien can work in the United States without risk of criminal punishment, even if such employment is inconsistent with the employer’s restrictions under federal immigration law. Langarcia v. HSD v. Balerama, No. A-1-CA-38571 (unpublished opinion).
• Incarceration (pre-July 1, 2021) – Generally, incarceration is treated as a voluntary act and minimum wage can be imputed. Thomasson v. Johnson, 1995-NMCA-109, 120 N.M. 512.
• Incarceration (post-July 1, 2021) - Income may not be imputed to a parent if the parent is incarcerated for a period of 180 days or longer. Incarceration is not considered a voluntary unemployment. Section 40-4-11.1(E).
• Income considerations – Income under Subsection C of 40-4-11.1 includes “income from any source” and can include interest or trust income and as such the trial court was entitled to consider potential as well as actual, present income and could examine any such assets that could produce such income. Talley v. Talley, 1993-NMCA-003, 115 N.M. 89.
• Income from all enumerated sources - The language of Subsection C(2) of 40-4-11.1 requires consideration of actual amount of income from the sources listed therein in determination of each parent’s gross income. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.
• Individual retirement account - Trial court properly included income from an individual retirement account in its calculations of a parent’s child support obligation; the fact that the parent would have to pay a penalty for withdrawing the money from the individual retirement account prior to reaching the age of retirement did not render the money unavailable for child support. Quintana v. Eddins, 2002-NMCA-008, 131 N.M. 435.
• Interest - Interest earned on cash assets received in a property distribution is income for purposes of child support and the determination of income includes income potential of idle assets. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.
• Not limited to tax return information - By limiting its determination of the father’s gross monthly income to his tax returns, the trial court was too strict in defining what it believed was income, and it erred in not considering other sources of revenue, including cash savings, yearly interest. Padilla v. Montano, 1993-NMCA-127, 116 N.M. 398.
• Multiple Jobs – District court did not err in considering mother’s second job in calculating income for child support purposes. Burns v. Burns, NMCA (Unpublished Opinion, March 23, 2020).
• Rent payments – Pursuant to the plain language of Subsection C(2)(b) of 40-4-11.1, the rent payments wife received from tenant constitute “gross income” in calculating her “gross income” for child support purposes. Klinksiek v. Klinksiek, 2005-NMCA-008, 136 N.M. 693.
• Self-Employment – Even though the father, a writer, was not engaged in writing and had no income from current literary efforts during the year in question, the trial court erred in refusing to allow him to deduct a sum for fixed overhead expenses from his earnings from previous writings during that year. Boutz v. Donaldson, 1999-NMCA-131, 128 N.M. 232
  
  While the trial court may consider the tax treatment of business expenses claimed by a parent as “ordinary and necessary,” the trial court is not limited to the tax treatment of a particular expense. The parent claiming a business expense must show not only that it is ordinary and necessary to the business, but also that it is irrelevant to calculating child support obligations. For example, business expenses that are valid for accounting for tax purposes may not affect a parent’s actual cash flow, so they would normally be considered ordinary and necessary for purposes of calculating support. Roberts v. Wright, 1994-NMCA-022, 117 N.M. 294; Jurado v. Jurado, 1995-NMCA-014, 119 N.M. 522; Major v. Major, 1998-NMCA-001, 124 N.M. 436.
  
  Wife is entitled to deduct from gross receipts, the “ordinary and necessary” expenses required to produce the rental income to determine her “gross income” from the rent. Klinksiek v. Klinksiek, 2005-NMCA-008, 136 N.M. 693.
  
  Multi-year averaging may be appropriate for self-employed individuals when business income is subject to fluctuation. Jury v. Jury, 2017-NMCA-036, 392 P.3d 242 (court did not expressly decide this issue; trial court should make exact calculations and written findings).
  
  Trial court may consider tax treatment of expenses claims by a parent as “ordinary and necessary,” but the court is not limited to the tax treatment of a particular expense. Roberts v. Wright, 1994-NMCA-022, 117 N.M. 294. The burden is on the person making the claim and must show not only that it is ordinary and necessary to the business, but also that it is irrelevant to calculating support obligations. Id.
   
• Underemployment – If a court finds that a parent has willfully failed to obtain or maintain appropriate employment or is willfully underemployed, the court may impute to that parent an income equal to that parent’s earning and employment potential. Section 40-4-11.1(D) & (D)(1) (effective July 1, 2021). The criteria to be used: (a) availability of employment opportunities for the parent; (b) the parent’s employment history; (c) the parent’s income history; (d) the parent’s job skills; € the parent’s education; (f) the parent’s age and health; (g) the parent’s history of convictions and incarceration; and (h) the parent’s ability to obtain or maintain employment due to providing care for a child of the parties who is under the age of six or is disabled. Id.
  
  As long as a parent was working full time in his or her area of expertise, earning an income within the range presented by the evidence and in a location reasonably accessible to his or her child, a trail court could not make a finding of underemployment without also finding bad faith; to do otherwise would put a parent in the untenable position of choosing between playing an active role in the child’s upbringing and leaving to earn enough money to meet the support obligation. Quintana v. Eddins, 2002-NMCA-008, 131 N.M. 435.
  
  Trial court was within its discretion not to consider mother underemployed by virtue of her reasonable, yet unsuccessful, efforts to establish a profitable business, and reasonable efforts to provide a home for her children. Boutz v. Donaldson, 1999-NMCA-131, 128 N.M. 232.
  
  When a father failed to obtain full-time employment or attempt to regain his law license, a district court properly imputed income against him for child support purposes based on his underemployment; however, the amount imputed was not supported by sufficient evidence because there was no showing that the father could have secured employment at the salary he made at his last job. State ex rel., Human Services Department v. Kelley, 2003-NMCA-050, 133 N.M. 510.

 

NOT Income

 

• Gifts – As a general rule, a non-custodial parent will not be permitted credit against court-ordered child support obligations for gifts given to the children. Hopkins v. Hopkins, 1989-NMCA-101, 109 N.M. 233. Under Subsection C(2) of Section 41-4-11.1, gross income generally does not include gifts; however, deviation from the child support guidelines as authorized under Subsection A could include the calculation of periodic dependable gifts. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.
• In-kind benefits other than employment benefits - The term “in-kind” benefits in Subsection C(2) of 40-4-11.1 refers to employment benefits and does not apply to a residence in which the mother was living without cost. Styka v. Styka, 1999-NMCA-002, 126 N.M. 515, cert. denied, 126 N.M. 534.
• Personal injury settlement - The undistributed principal amount from a lump-sum personal injury settlement should not be considered income when it is used to generate the income to pay child support, and there is no evidence that a parent needs the remaining principal over the course of the parent’s own life for the parent’s own support. Webb v. Menix, 2004-NMCA-048, 135 N.M. 531. However, the long-term treasury-bond rate of return on the settlement proceeds may be imputed to a party in the calculation of their earning capacity. Id.
• Real estate contract payments - Monthly payments on a real estate contract that constitute return of capital is not income. Leeder v. Leeder, 1994-NMCA-105, 118 N.M. 603.
• Third-party’s income - Third-party’s income is not used in calculating child support. State ex rel., Human Services Department v. Barela, 1994-NMCA-036, 117 N.M. 526 (grandparents were raising two children, mother was obligated to pay child support using worksheet A with her income as “other parent”; grandparents and father’s income had no bearing on mother’s obligation).

• Pre-judgment interest – Trial court did not abuse its discretion in not allowing pre-judgment interest since custodial parent’s claim had not been liquidated before she brought her suit and non-custodial parent could not know with certainty what he was obligated to pay before paternity action was litigated. Padilla v. Montano, 1993-NMCA-127, 116 N.M. 398. Pre-judgment interest may be awarded when the judgment is readily ascertainable at the outset of the case. Tedford v. Gregory II, Memorandum Opinion (October 10, 2000).
• Post-judgment interest – Interest on past-due child support awarded in a previous order is mandatory. Bustos v. Bustos, 2000-NMCA-040, 128 N.M. 142. Post-judgment interest is calculated at the statutory rate in effect at the inception of the action. Post-judgment interest accrues from the entry of each judgment, which is the due date of each installment that child support was not paid. Sanchez v. Sanchez, Memorandum Opinion (July 1, 1998); Britton v. Britton, 1983-NMSC-084, 100 N.M. 424.

• Agreement is not valid – Parents cannot enter into agreements to extinguish their duty of support when public assistance was paying the support. Brannock v. Brannock, 1986-NMSC-042, 104 N.M. 385.
• Lump-Sums unacceptable to pay for future obligations – Non-custodial parents cannot be relieved of future obligations when custodial parent is still on public assistance. Martinez v. Martinez, 98 N.M. 535, 1982-NMSC-097.

• Reasonable vs. unreasonable expense – Cash medical support for the minor child is considered reasonable in cost if the cost to the parent responsible for providing medical support does not exceed five percent of the parent’s gross income. Section 40-4C-4(C)(2).

A court may modify a child support obligation upon a showing of material and substantial changes in circumstances subsequent to the adjudication of the pre-existing order, including the health care needs of the child, to include the availability of health insurance. There shall be a presumption of material and substantial changes in circumstances if application of the child support guidelines in Section 40-4-11.1 would result in a deviation upward or downward of more than twenty percent of the existing child support obligation and the petition for modification is filed more than one year after the filing of the pre-existing order. Section 40-4-11.4(A). The requirement to provide for the child’s health care needs in the order, through insurance or other means, shall be a basis to initiate an adjustment of an order, regardless of whether an adjustment in the amount of child support is necessary. Section 40-4-11.4(C).

 

• By court order – Child support modifications can only be made by court order. Automatic reductions when a child turns 18 must be expressly or impliedly set out in the original order. Bustos v. Bustos, 2000-NMCA-040, 128 N.M. 842.
• Change of custody – Although it is a better practice to plead for modification of child support when seeking a change of custody, the failure to do so does not preclude the court from considering the modification of child support as “questions of change of custody and child support are so inextricably related.” Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235.
• Date of filing – The date of filing for modification should be used if the motion is granted. Montoya v. Montoya, 1980-NMSC-122, 95 N.M. 189.
• Reduction of child support payments upon child reaching majority age – When a prior decree directs that a non-custodial parent to make lump-sum, periodic child support payments for two or more children, and one of the children subsequently reaches the age of majority, the best procedure for a non-custodial parent who seeks a reduction in child support is to obtain a stipulated order authorizing such modification, or alternatively to request a hearing on the request for reduction. McCurry v. McCurry, 1994-NMCA-047, 117 N.M. 564; Britton v. Britton, 1983-NMSC-084, 100 N.M. 424 (general rule is that an undivided support award directed at more than one child is presumed to continue in force for the full amount until the youngest child reaches majority).
• Retroactive modification of child support not permitted – The trial court does not have discretion to modify past, as distinguished from future, child support payments. Gomez v. Gomez, 1978-NMSC-093, 91 N.M. 310; Chrane v. Chrane, 1982-NMSC-089, 98 N.M. 471.

• Held to same standard – “Although pro se pleadings are viewed with tolerance, a pro se litigant, having chosen to represent himself, is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar.” Woodhull v. Meinel, 2009-NMCA-015, 145 N.M. 533.

• Any noncustodial parent liable – Making any non-custodial parent liable for the entire amount spent by state taxpayers on public assistance, even though there may be other non-custodial parents whose whereabouts are unknown, would be consistent with the intent behind Section 27-2-28(A). State ex rel., Human Services Department v. Barela, 1994-NMCA-036, 117 N.M. 526.

• Child’s interest – Retroactive child support is for the benefit of a child as well as for the child’s custodian. Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779. A parent’s waiver of a child’s interest in child support may infringe upon the child’s rights. Id. Person claiming waiver has the burden of persuasion to show that a waiver of retroactive child support would not infringe upon the child’s right to financial support throughout the child’s minority. Id.
• Child support arrears – The district court can award retroactive child support going back to date of birth even in cases where there is a valid Acknowledgment of Paternity. State ex rel, Human Services Department and Toledo v. Toney, 2019-NMCA-035, 444 P.3d 1074.
• Compare UPA vs. dissolution of marriage – In dissolution of marriage cases, child support goes back to the date the petition is filed. Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779, citing, NMSA 1978, Section 40-4-11 to 40-4.11.2.
• Retroactive to the date of the child’s birth (under pre-July 1, 2021 law – A paternity action under the UPA provides for a remedy of child support retroactive to the date of a child’s birth. Sisneroz v. Polanco, 1999-NMCA-039, 126 N.M. 779.

Change from mistaken admission of paternity to proof of non-paternity qualifies as an extraordinary change of circumstance sufficient to permit Rule 1-60(B)(6) relief from a child support obligation. State ex rel. Human Services Department v. Rawls, 2012-NMCA-052, 279 P.3d 766. Respondent was relieved from paying prospective child support. Id.

• Offset of on-going child support - When a child’s monthly receipt of social security funds coincides with a parent’s default on child support payments, the arrearages may be offset by the social security payments up to the amount, but not exceeding, the parent’s child support obligation. Mask v. Mask, 1980-NMSC-134, 95 N.M. 229.
• Offset of lump-sum payment against arrearages – Father was entitled to an offset “in the amount of the child support payments owed for the month’s the lump-sum covered.” Romero v. Romero, 1984-NMCA-049, 101 N.M. 345.Offset of on-going child support - When a child’s monthly receipt of social security funds coincides with a parent’s default on child support payments, the arrearages may be offset by the social security payments up to the amount, but not exceeding, the parent’s child support obligation. Mask v. Mask, 1980-NMSC-134, 95 N.M. 229.
• SSI received by the child – The trial court has broad authority to fashion rulings in the best interests of the children. Gonzales v. Shaw, 2018-NMCA-059, 428 P.2d 280. Non-custodial parent has burden of presenting evidence that disabled child is not in need of both SSI benefits and child support. Id.
• Trial court’s discretion – Court of Appeals held that “in allowing a credit against basic child support for off-schedules sources of income, such as social security benefits paid directly to the child, Section 40-4-11.2 requires the trial court to exercise its discretion on a case-by-case basis, with the child’s standard of living as a crucial factor. Pedersen v. Pedersen, 2000-NMCA-042, 129 N.M. 56

• No statute of limitations against state – The New Mexico legislature does not have the authority to extinguish obligations owed to the state. Article 4, § 32, New Mexico Constitution.
• Reaffirmation of debt – “The renewal of a debt barred by limitation is a new contract; the consideration for the new promise is the old debt, and is sufficient. . . . The distinction between the acknowledgment of a debt before and after the statute has run consists merely in its effect upon the debt and the remedy. An acknowledgment or promise made before the statute has run, vitalizes the old debt for another statutory period dating from the time of the acknowledgment or promise, while an acknowledgment made after the statute has run give a new cause of action, for which the old debt is consideration.” Davis v. Savage, 1946-NMSC-011, 50 N.M. 30.
• Section 37-1-2 – The 14-year period set forth in Section 37-1-2 applies to court ordered monthly installments of child support. Britton v. Britton, 1983-NMSC-084, 100 N.M. 424. Each monthly child support installment mandated in the final decree was a final judgment, not subject to retroactive modification. Id. Section 37-1-2 bars the filing of any action founded on a judgment after 14 years. While the statute may bar the filing of an action to enforce a judgment, it does not allow for vacating the judgment. Id., citing, Davis v. Savage, 1946-NMSC011, 50 N.M. 30 (“statutes of limitation merely bar the remedy and do not destroy the debt”).

• Contract between the parties – “A stipulated judgment is not considered to be a judicial determination; rather it is a contact between the parties.” Owen v. Burn Const. Co., 1977-NMSC-029, 90 N.M. 297, quoting, State v. Clark, 1968-NMSC-057m 79 N.M. 29.

• Subsequent children can be considered – The district court can take into consideration subsequent children when father was unaware of the existence of an older child and had no pre-existing obligation to financially support the older child. State ex rel., Human Services Department v. Chavez, Memorandum Opinion, December 19, 2002.