March 13, 2019- Manuel Peralta v. Sharon Mae Britt, No. A-1-CA-35824

I 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MANUELPERALTA,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35824
5 	SHARON MAE BRITT f/k/a SHARON
6 MAE JOJOLA also f/k/a SHARON M.
7 JOJOLA,
8 	Defendant-Appellant,
9 and
10 	EDWARD BRITT II and STATE
11 	OF NEW MEXICO HUMAN SERVICES
12 	DEPARTMENT,
13 	Defendants.
14 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
15 	Kevin R. Sweazea, District Judge
16 Lori Bauer Apodaca
17 Los Lunas, NM
18 	for Appellee
19 Deschamps Law Firm, LLC
20 Lee Deschamps
21 	Philip P. Chandler, II
22 	Socorro, NM
23 	for Appellant
Court of Appeals of New Mexico
Filed 3/13/2019 11:03 AM
Mark Reynolds

1 	MEMORANDUM OPINION
2 ATTREP, Judge.
3 	{t} 	Defendant Sharon Britt appeals the district court's judgment, arguing the
4 district court erred in granting Plaintiff Manuel Peralta's motion for summary
5 judgment, awarding restitution to Peralta for past payments he made in support of
6 Britt's child (Child), and vacating a prior default judgment determining paternity
7 and ordering child support. Based on Britt's representations to the New Mexico
8 Human Services Department (HSD), the district court in the original parentage and
9 child support case entered a default judgment declaring Peralta the father of Child
10 and ordering Peralta to make monthly payments to Britt on behalf of Child. Many
11 	years 	later, 	a 	genetic 	test 	revealed 	Peralta 	was 	not 	Child's 	father. 	Peralta
12 	subsequently filed suit against Britt, and the district court ultimately ruled in his
13 	favor. On appeal, Britt raises various arguments, which we consolidate and address
14 as three principal contentions: (1) she contends any misrepresentations she made
15 	were immaterial and neither HSD nor Peralta could reasonably rely on them; (2) she
16 maintains that Peralta's action for relief was untimely; and (3) she argues that relief
17 is barred by the equitable defenses of laches, unclean hands, and estoppel. We affirm.
18 	BACKGROUND
19 	{2} 	Britt and Peralta had an intimate relationship in the few years preceding
20 Child's birth in February 1990. At the time Child was conceived, Britt had a sexual
2

1 relationship with another man. Britt did not disclose the relationship to Peralta and
2 told Peralta that he was Child's biological father. When Child was born, Britt sought
3 assistance from HSD to establish support for Child's upbringing. Britt represented
4 to HSD that Peralta was Child's father and that then:: were no other possible fathers.
5 HSD initiated a paternity action against Peralta and served him with process, but he
6 entered no appearance or responsive pleading. In November 1990, the district court
7 entered a default judgment adjudicating Peralta the father of Child and requiring him
8 to pay $3 00 per month in child support. Peralta made payments as ordered, even
9 though there were times when he did not make enough money to support himself.
10 	{3} 	Peralta never formed a relationship with Child, and, over time, he questioned
11 	whether Child was his. Peralta attempted to secure a paternity test with the assistance
12 	of Britt and HSD, but neither party was receptive. Fifteen years after Child was born,
13 	Britt established a relationship with Edward Britt, who sought to adopt Child. In the
14 course of the adoption proceedings, Peralta's paternity was tested. The results, which
15 	the parties received in September 2005, revealed a "zero percent chance" Peralta was
16 Child's 	father. 	After 	the 	district 	court 	entered 	an 	adoption 	decree, 	HSD
17 acknowledged Peralta was not Child's father and stopped seeking any prospective
18 	support from him.
19 	{4} 	Peralta made support payments to Britt totaling approximately $48,000 over
20 the years. Peralta sought the assistance of several attorneys to obtain restitution of
3

1 those payments but was unable to afford the quoted retainers. Eventually, in August
2 2008, Peralta, with the assistance of an attorney, filed a complaint against Britt,
3 HSD, and Edward Britt. 1 Peralta styled his complaint as an independent action for
4 	relief from a judgment, but also made reference to Rule 1-060(B) NMRA, which·
5 allows in certain circumstances for relief from a judgment by motion in the original
6 action. The complaint set forth various causes of action and requested that the default
7 judgment be set aside and that Peralta be awarded amounts he had paid to Britt in
8 child support. The case progressed slowly in district court, with the court ultimately
9 granting summary judgment in Peralta's favor, awarding him restitution of child
10 support payments made to Britt, and vacating the default judgment entered in the
11 	original parentage proceeding. The district court's resolution of this case was based
12 on our decision in State ex rel. Human Servs. Dep 't v. Rawls, 2012-NMCA-052, 279
13 	P.3d 766, which was issued during the pendency of the case below.
14 	DISCUSSION
15 	I.
16 	{5}
Applicable Law and Standard of Review
We agree with the district court that Rawls is applicable to this case. Rawls
17 involved a misattribution of paternity in which the putative father, notwithstanding
18 	his 	doubts, 	entered a 	stipulation 	of paternity sometime 	after entry 	of default
1 HSD was dismissed from the lawsuit when Peralta and HSD reached a
settlement agreement. Edward Britt also was dismissed when he was excluded as
Child's biological father.
4

1 judgment against him. 2012-NMCA-052, ,, 2, 	3. Five years after the default
2 judgment, a paternity test revealed Rawls was not the child's father, and he moved
I
3 in the original action to set aside the default judgment under Rule 1-060(8). Rawls,
4 2012-NMCA-052, ,, 3, 4. The district court denied Rawls relief. Id. ,, 4-5. This
5 Court analyzed Rawls' claim under Rule 1-060(8)(6), which requires the motion be
6 made in a "reasonable time" and a showing of"extraordinary circumstances." Rawls,
7 2012-NMCA-052, , 	13. We reversed the district court, emphasizing that "[t]he
8 unique circumstances of [the] case raise a significant issue as to the fairness of
9 requiring a person to pay child support when he is unerringly determined not to be
10 the biological father of a child and found to have had no personal relationship with
11 	the child." Id. , 	12. This Court concluded that a "change from a mistaken admission
12 	of paternity to proof of non-paternity qualifies as an extraordinary change of
13 	circumstance sufficient to permit Rule 1-060(8)(6) relief from a child support
14 obligation[,]" and we set aside the default judgment and stipulated order, thereby
15 	relieving Rawls of his obligation to make any future payments. Id. ,, 17, 19.
16 {6} 	Additionally in Rawls, 	this 	Court imported an analysis 	from 	Wheat 	v.
17 	Commonwealth, 217 S.W.3d 266 (Ky. Ct. App. 2007), which provided that a
18 misdesignated father may be relieved of an accrued child support obligation where
19 a parent has engaged in fraud or misrepresentation to secure a paternity adjudication.
20 	Rawls, 	2012-NMCA-052, 	, 	20. 	In 	making 	a 	determination 	of 	fraud 	or
5

1 misrepresentation, this Court examined the five elements in Wheat: (1) whether "the
2 mother had made a material representation," (2) "which was false," (3) "which was
3 either known to be false or which was made recklessly," (4) "which was made with
4 an inducement to be acted upon," and (5) "was relied upon thereby causing the
5 injury." Rawls, 2012-NMCA-052,, 20. After determining the Wheat elements were
6 met, we additionally ordered that Rawls be relieved of any obligation "to pay
7 accrued child support[.]" Id. ,, 21, 23.
8 	{7} 	In granting Peralta's motion for summary judgment in this case, the district
9 court concluded that Rawls allowed for relief, even for support obligations already
10 	satisfied, and that the 	Wheat elements were undisputed. We review the district
11 	court's grant of summary judgment de novo. Phoenix Funding, LLC v. Aurora Loan
12 Servs., LLC, 2017-NMSC-010, , 	17, 390 P.3d 174. We view the facts in the light
13 	most favorable to Britt, who opposes summary judgment, and draw all reasonable
14 	inferences in support of trial on the merits. See id. We will affirm a grant of summary
15 judgment where there exists no genuine issue with respect to any material fact and
16 we conclude the moving party is entitled to judgment as a matter of law. Id.
17 {8} 	Although Peralta's claims were brought as an independent action and resolved
18 	on summary judgment, Rawls, as noted, addressed a motion for relief under Rule
19 	1-060(8), and the parties have made various arguments in district court and on
20 appeal based on Rawls and Rule 1-060(8). The parties do not contend that the
6

1 analysis in this case should depart from Rawls because this is an independent action,
2 nor do we address this possibility here. We generally review rulings on Rule
3 	l-060(B) motions for abuse of discretion. Rawls, 2012-NMCA-052, 18. Where an
4 issue, however, requires us to determine whether the district court misapprehended
5 the applicable law or correctly applied the law to the facts at hand, we review the ·
6 issue de novo. Id. 	Because the dispute here revolves around the district court's
7 application of Rawls to circumstances undisputed by the parties, our review is de
8 novo.
9 II.
10
11
12 {9}
The 	District 	Court 	Did 	Not 	Err 	in 	Concluding 	That 	Britt's
Representations Were Material and That Peralta and HSD Were Entitled
to Rely on Them
Britt does not challenge that, by extension, Rawls and Wheat permit restitution
13 	of child support payments upon a showing of fraud or misrepresentation. And Britt
14 concedes on appeal that the "representations. [she] made to HSD were false (though
15 	unknowingly)[,] that, uncertain of their veracity, she made them recklessly[, and]
16 that ... HSD and the [distri.ct] court ... were induced to act as Britt had hoped."
17 Britt nevertheless questions whether her representations were material and whether
18 HSD and Peralta could reasonably rely on them. In particular, she argues, without
19 citing authority, that her representations were not material because they were not
20 	made directly to Peralta, but instead to HSD. Britt next contends, again without
21 	citing any authority, that it was unreasonable for HS.p and Peralta to rely on her
7

1 representations without further investigation due to the intimate nature of the
2 representations and because Peralta questioned his paternity early on.
3 {10} 	Upon an examination of Rawls, Britt's arguments fail. First, Rawls (ocused
4 on the mother's misrepresentation to HSD and HSD's reliance thereon, observing
5 that HSD had "acted upon" the mother's "representation to file a petition to name
6 Rawls as the father of [the c]hild." Rawls, 2012-NMCA-052, 1 21 	(alterations,
7 internal quotation marks, and citation omitted). The Court concluded this was
8 enough to satisfy any materiality and reliance requirements in Wheat. See Rawls,
9 2012-NMCA-052, 1 21. Britt's contention to the contrary, particularly without
10 reference to any legal support, is thus unavailing. See Curry v. Great Nw. Ins. Co.,
11 	2014-NMCA-031, 128, 320 P.3d 482 ("Where a party cites no authority to support
12 an argument, we may assume no such authority exists."). Second, Rawls appeared
13 	to accept the possibility that HSD and a putative father might both rely on the
14 mother's representation even where the putative father has doubts about paternity.
15 	See id. 11 16, 21. And Britt has offered no basis for distinguishing Peralta's early
16 	doubts from those the putative father had in Rawls.
17 	{11} 	Based on the principles established in Rawls as applied to the undisputed facts
18 	in this case, we conclude the district court did not err in concluding that Britt's
19 misrepresentations were material and that HSD and Peralta were entitled to rely on
20 them.
8

1 III.
2
3 	{12}
The District Court Did Not Err in Determining the Action Was Timely
U oder the Circumstances
Britt additionally argues that Peralta's action for relief was not timely filed
4 within Rule 1-060(B)(6)'s reasonable time requirement, given that it came nearly
5 eighteen years after Child's birth. "What constitutes-a reasonable time [under Rule
6 1-060(B)(6)] depends on the circumstances of each case." Meiboom v. 	Watson,
7 2000-NMSC-004,, 23, 128 N.M. 536,994 P.2d 1154 (internal quotation marks and
8 citation omitted). Various considerations guide the inquiry, including "the interest
9 in finality, the reason for delay, the practical ability of the litigant to learn earlier of
10 the grounds relied upon, and the consideration of prejudice if any to other parties."
I I 	Id. 	, 	24 (alterations, internal quotation marks, and citation omitted); see also
12 Apodaca v. Tome Land & Improvement Co. (NSL), 1978-NMSC-018,, 31, 91 N.M.
13 	591, 577 P.2d 1237 (observing that, in other equitable relief contexts, "lapse[s] of
14 time alone do[] not necessarily imply an unreasonable delay in bringing suit, but it
15 	must also appear that the delay has worked to the injury of another" (alteration,
16 internal quotation marks, and citation omitted)). Whether the statute of limitations
17 governing the claim giving rise to the request for relief has expired may also guide
18 the reasonableness analysis. Meiboom, 2000-NMSC-004, ,-r 26.2
2Whether these considerations apply in the same manner in an independent
action for relief is a question left unaddressed by the parties. Because the parties
have given us no reason to distinguish, and no authority distinguishing, the standards
we apply in independent actions from the standards we apply to Rule 1-060(B)(6)
9

1 {13} 	Although the parties have not explicitly addressed the possibility, Rule
2 	1-060(B)(6)'s 	reasonable 	time 	requirement 	likely 	requires 	both 	timeliness 	in
3 uncovering the ground for relief and timeliness in seeking relief once the ground has
4 been discovered. See Restatement (Second) of Judgments§ 74 (Am. Law Inst. 1982)
5 (explaining.relief from a judgment may be denied if "person seeking relief failed to
6 exercise reasonable diligence in discovering the ground for relief, or after such
7 discovery was unreasonably dilatory in seeking relief'). The eighteen-year lapse
8 Britt has identified here may thus be more appropriately viewed and analyzed as a
9 fifteen-year period before the misrepresentation was discovered, and an ensuing
10 three-year period before Peralta initiated his action for relief.
11 	{14} 	With respect to the initial fifteen-year period, Britt has offered no basis to
12 distinguish it from 	the 	five-year period that elapsed before discovery 	of the
13 	misrepresentation in Rawls, other than to say that the fifteen-year period is longer.
14 See Rawls, 2012-NMCA-:-052, , 	18 (observing that, "notwithstanding a nine-year
15 	delay in requesting relief, and the [putative father's] failure to submit to DNA testing
16 earlier," Mississippi Supreme Court held that "it was profoundly unjust. to require
17 [the putative father] to continue making child support payments for a child which is
18 known not to be his and thereby ordering the trial court to set aside the paternity and
motions, we assume for purposes of this case that the standards apply in the same
way and address only the arguments raised, which have focused on the Rule 1-
060(B )(6) timeliness principles. See Curry, 2014-NMCA-031,, 28.
10

1 child support order" (internal quotation marks and citation omitted) (citing with
2 approval MA.S. v. Miss. Dep 't of Human Servs., 842 So.2d 527, 528, 531 (Miss.
3 2003) (en bane))). Britt offers no challenge to the undisputed fact that Peralta sought
4 to investigate his paternity at times during that fifteen-year period with the assistance
5 of both HSD and Britt, but neither was willing to help him secure a test. 3 In addition,
6 Britt offered no evidence in the district court that she, HSD, Child, or any other
7 affected party suffered prejudice as a result of Peralta's delay, nor has she challenged
8 the district court's determination that she offered no such evidence. See Meiboom,
9 2000-NMSC-004, 1 24 (highlighting consideration of prejudice to other parties in
10 determining reasonableness); Apodaca, 1978-NMSC-018, 131 (requiring showing
11 	of prejudice in equitable analysis).
12 	{15} 	With respect to the three-year period after discovery of the misrepresentation,
13 	Britt again offered no evidence of prejudice resulting from Peralta's delay in
14 	initiating the action. See Meiboom, 2000-NMSC-004, 124; Apodaca, 1978-NMSC-
3
Britt asserts, without any record citation, that Peralta knew within a year of
Child's birth that he was not the father and therefore his delay in taking action was
unreasonable. The only citation in Britt's brief that could possibly be construed to
support this contention is a 1991 letter Peralta purportedly wrote to HSD in which
he requested an attorney and paternity test and stated that "[Britt] verbally admitted
to me that [Child] is not mine but still refuses to take a blood test." Yet, when citing
this letter at another point in her briefing, Britt questions whether she made such an
admission to Peralta. Regardless, the district court ordered this letter stricken when
it denied Britt's motion for reconsideration of the grant of summary judgment, and
Britt has 	not 	appealed this 	ruling. 	We 	therefore 	do 	not 	give 	it any 	further
consideration.
11

I 	O18, 131. Moreover, had Peralta initiated a new action for fraud based on the newly-
2 discovered information, the statute of limitations would have given him four years
3 to do so. See NMSA 1978, § 37-1-4 (1880); cf Meiboom, 2000-NMSC-004, 1 26
4 (concluding timeline was unreasonable in part because "the statute oflimitations had
5 expired several months before" motion for relief was filed). Further, while we
6 acknowledge that as a general rule a claimant's poverty may not excuse delay in
7 enforcing a right, in certain circumstances "poverty may excuse delay in filing suit
8 if there is a clear showing of poverty and of diligent efforts to overcome financial
9 barriers." 30A C.J.S. Equity§ 154 (2007) (noting that "if plaintiff has been diligent
10 then he or she has not slept on his or her rights and laches does not bar his or her
11 	cause of action"). Peralta presented evidence that he sought help from various
12 attorneys but could not afford the retainers, and that he initiated this action upon
13 	finally retaining an attorney. Britt advanced no evidence to the contrary, nor has she
14 argued that it was error for the district court to consider Peralta's financial position.
15 	{16} 	Given the undisputed facts on reasonableness and the lack of any record made
16 on prejudice, we conclude the district court did not err in determining that Peralta's
17 action satisfied any timeliness requirement imposed by Rule l-060(B)(6).
18 	IV. 	Britt's Remaining Equitable Arguments Are Unavailing
19 {17} 	Britt relies on various equitable doctrines, such as laches, unclean hands, and
20 equitable estoppel, to argue that the district court's restitution award was inequitable.
12

1 First, a !aches defense requires that Britt establish injury or prejudice resulting from
2 Peralta's delay in initiating the action, and as noted, she presented no evidence of
3 prejudice to the district court. See Magnolia Mountain Ltd., P'ship v. 	Ski Rio
4 Partners, Ltd., 2006-NMCA-027, ,, 32-33, 139 N.M. 288, 131 P.3d 675 ("[The
5 d]efendant has offered no reason why it was prejudiced by [the p]laintiffs delay in
6 filing the action."); see also Cain v. Cain, 1978-NMSC-014, ,, 3, 11, 91 N.M. 423,
7 575 P.2d 607 (reversing a ruling that laches applied to ex-husband's claim that he
8 thought his alimony obligation lasted only a year where his ex-wife failed to enforce
9 alimony payments for eighteen years and holding there was no substantial evidence
10 	of an unreasonable delay prejudicing the ex-husband).
11 	{18} 	Second, to prevail on an unclean hands defense, Britt must establish that
12 Peralta "dirtied" his hands "in acquiring the right he now asserts." See Romero v.
13 	BankoftheSw., 2003-NMCA-124, ,38, 135 N.M. 1, 83 P.3d288 (internal quotation
14 marks and citation omitted). In claiming unclean hands, Britt relies on the argument
15 	that Peralta doubted his paternity from early on but continued to make child support
16 payments. As noted, Britt has offered no basis for distinguishing Peralta's doubts
17 from the similar doubts harbored by the putative father in Rawls. And she has
18 presented no authority in support of the notion that Peralta's payments in compliance
19 with a court order may constitute inequitable conduct based on his early-arising
20 doubts, and we assume none exists. See Curry, 2014-NMCA-031,, 28.
13

1 {19} 	Finally, with respect to the defense of estoppel, we must evaluate whether
2 Britt "relied to 	[her] 	detriment" 	on Peralta's conduct, 	such that it would be
3 inequitable to award Peralta relief for a right he might otherwise assert. See Brown
4 v. Taylor, 1995-NMSC-050, ,-r 10, 120 N.M. 302, 901 P.2d 720. Britt again advances
5 the notion that Peralta acquiesced in the paternity judgment and implicitly waived
6 his right to recovery by making payments over the years and for such a duration that
7 she 	reasonably 	believed 	he 	would 	no 	longer 	assert 	his 	right. 	But, 	as 	Britt
8 acknowledges and the district court found, it is undisputed that Peralta questioned
9 his paternity, seeking both the assistance of Britt and HSD in securing a paternity
10 test. Further, Britt offered no evidence to the district court that she relied on Peralta's
11 	continued payments to her detriment or that she was otherwise prejudiced. See
12 Brown, 1995-NMSC-050, ,-r 12 (noting "the party asserting the defense [of estoppel]
13 	must demonstrate prejudice, and for such purposes, prejudice cannot be inferred
14 merely from the passage of time" (internal quotation marks and citation omitted));
15 	see also Sisneroz v. Polanco, 1999-NMCA-039, ,-r,-r 11-18, 126 N.M. 779, 975 P.2d
16 392 (holding mother's inaction in establishing paternity and pursuing child support
17 for eleven years did not constitute an unequivocal act of waiver or acquiescence).
18 	{20} 	At its core, Britt's argument on appeal is that it is inequitable or unfair to order
19 her to make restitution. We recognize, as did the Court in Rawls, the very significant
20 policy interests favoring the finality of judgments and disfavoring the potential
14

1 banns 	to 	HSD 	and 	Child 	in 	scenarios 	like 	these, 	and 	the 	various 	equitable
2 considerations that may weigh against Peralta. See Rawls, 2012-NMCA-052, ,-r 12.
3 Rawls, however, highlighted the important countervailing consideration of "the
4 fairness of requiring a person to pay child support when he is unerringly detennined
5 not to be the biological father of a child and found to have had no personal
6 relationship with the child." Id. And in the absence of a showing of harm to the child,
7 Rawls determined that these circumstances may often compel a conclusion that the
8 fairness question favors the misdesignated father over the mother who "mistakenly
9 or intentionally" identifies him as the father. See id. ,-r 22. On the undisputed record
10 here, we conclude the district court did not err in weighing the equities in favor of
11 	Peralta.
12 CONCLUSION
13 	{21}
14 	{22}
15
16
We affirm the district court's judgment.
IT IS SO ORDERED.
15