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Gonzales v. Shaw

Court of Appeals of New Mexico

July 17, 2018

CHRISTINA J. GONZALES, Petitioner-Appellee,
v.
RICHARD S. SHAW, Respondent-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Gerard J. Lavelle, District Judge

          Monica D. Baca Albuquerque, NM for Appellee

          Trujillo Dodd, Torres, O'Brien, Sanchez, L.L.C. Donna S. Trujillo Dodd Albuquerque, NM for Appellant

          OPINION

          MICHAEL E. VIGIL, JUDGE.

         {¶1} Respondent Richard Shaw appeals the district court's order setting child support for his adult disabled son, Blake (Son), and memorandum order and judgment awarding Petitioner Christina Gonzales attorney fees and costs. Respondent raises four arguments on appeal: (1) the evidence was insufficient to find Son is a disabled adult in need of continuing child support; (2) the district court erred in relying on the report and testimony from clinical neuropsychologist, Dr. Jonathan R. Kurtyka, Ph.D., in its determination on the issue of continued child support for Son; (3) the district court erred in its treatment of the proceeds Son receives as a result of his disabilities from Social Security as part of the child support calculation; and (4) the district court erred in its award of attorney fees and costs to Petitioner. We affirm.

         BACKGROUND

         {¶2} Petitioner filed a motion to establish child support for Son-nineteen years old at the time-pursuant to Cohn v. Cohn, 1997-NMCA-011, ¶ 5, 123 N.M. 85, 934 P.2d 279 (establishing the possibility of child support persisting beyond a child's eighteenth birthday in certain circumstances of disability.) After an evidentiary hearing that took place over the course of two days, the district court concluded, under Cohn, that Petitioner and Respondent have a continuing obligation to financially support Son. The district court determined that Respondent's child support obligation to Son is $582 per month.

         {¶3} In its memorandum order and judgment, the district court explained that "[t]he testimony of Dr. Jonathan Kurtyka was helpful and compelling in terms of the decision to award child support. Both parties had the opportunity to interview Dr. Kurtyka prior to his testimony in Court and, therefore, had access to Dr. Kurtyka's information before the two trial dates that were eventually needed to resolve the issues herein. In addition to Dr. Kurtyka's testimony, Respondent's own witnesses, who were subpoenaed to come to Court, testified that [Son] is disabled." The district court further ordered that Petitioner shall be awarded attorney fees, gross receipts tax, and costs related to Dr. Kurtyka's testimony. Respondent appeals.

         DISCUSSION

         I. Sufficiency of the Evidence That Son Is a Disabled Adult Entitled to Continuing Child Support

         {¶4} Respondent claims that "[i]t is clear that New Mexico adopts the notion that parents shall continue to support their disabled or incapacitated children. However, the facts of this case do not rise to the level of a[n] incapacitated adult child, despite his defined disabilities." Respondent therefore contends that the evidence was insufficient to determine Son is a disabled adult in need of continuing child support.

         {¶5} "Child support determinations are made at the discretion of the district court and are reviewed for abuse of discretion." Jury v. Jury, 2017-NMCA-036, ¶ 26, 392 P.3d 242. "A district court abuses its discretion if it applies an incorrect standard, incorrect substantive law, or its discretionary decision is premised on a misapprehension of the law." Id. (internal quotation marks and citation omitted). To the extent that Respondent argues that there was an insufficient basis to support the district court's findings concerning the extent of Son's disability, "we review the evidence in the light most favorable to support the district court's findings, resolving all conflicts and indulging all permissible inferences in favor of the decision below." Gabriele v. Gabriele, No. A-1-CA-34523, 2018 WL 797270, ___ -NMCA- ___, ¶ 18, ___ P.3d ___ (Jan. 31, 2018) (alteration, internal quotation marks, and citation omitted). However, insofar as Respondent challenges the district court's legal conclusion concerning whether Son qualified as an adult in need of continued child support under Cohn, our review is de novo. See Gabriele, ___-NMCA- ___, ¶ 18.

         {¶6} We held in Cohn that under the common law, "if a child is disabled at the time of reaching majority, ... the parental duty to provide .support continues indefinitely, until the disability is removed." 1997-NMCA-011, ¶¶ 5-6 (internal quotation marks and citation omitted). In Cohn, the father appealed the district court's order requiring him to pay child support for his thirty-seven-year-old son, George, who had been "severely mentally and physically handicapped since birth." Id. ¶¶ 1-2. At the time the district court entered its order, George had been and continued to be cared for by his mother. Id. ¶ 2. The district court found that George had the mind of a three-year-old child and was incompetent, suffered from frequent epileptic seizures, had to be helped in bathing and dressing, and needed constant supervision. Id. On appeal and based on the district court's findings concerning George's condition, we concluded that George was "severely disabled" before reaching the age of majority and therefore the district court did not err in ordering the father to pay support for his disabled adult son. Id. ¶ 6.

         {¶7} The evidence presented in the hearing of this case overwhelmingly demonstrates that Son was severely disabled before reaching ...


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