CHRISTINA J. GONZALES, Petitioner-Appellee,
RICHARD S. SHAW, Respondent-Appellant.
FROM THE DISTRICT COURT OF BERNALILLO COUNTY Gerard J.
Lavelle, District Judge
D. Baca Albuquerque, NM for Appellee
Trujillo Dodd, Torres, O'Brien, Sanchez, L.L.C. Donna S.
Trujillo Dodd Albuquerque, NM for Appellant
MICHAEL E. VIGIL, JUDGE.
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.
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
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.
Sufficiency of the Evidence That Son Is a Disabled Adult
Entitled to Continuing Child Support
Respondent claims that "[i]t is clear that New Mexico
adopts the notion that 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.
"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.
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.
The evidence presented in the hearing of this case
overwhelmingly demonstrates that Son was severely disabled
before reaching ...