March 23, 2020- Shawn P. Burns v. Barbara C. Burns, No. A-1-CA-37653

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
SHAWN P. BURNS,	2
Petitioner-Appellee,	3
v. 	No. A-1-CA-37653	4
BARBARA C. BURNS,	5
Respondent-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Gerard J. Lavelle, District Judge	8
Shawn P. Burns	9
Albuquerque, NM	10
Pro Se Appellee	11
Barbara C. Burns	12
Albuquerque, NM	13
Pro Se Appellant	14
MEMORANDUM OPINION	15
B. ZAMORA, Judge.	16
{1} 	Barbara C. Burns (Mother) separately appeals the denial of: (1) her motion for	17
modification of Shawn P. Burns’ (Father) child support obligation; and (2) her	18
motion to remove the two minor children’s (Children) belongings from Father’s	19
home. Mother argues the district court relied upon improper information in	20
determining the amount of the monthly child support award, and in failing to	21
schedule a hearing to allow Mother to present her arguments concerning the removal	22
Court of Appeals of New Mexico
Filed 3/23/2020 8:15 AM

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of Children’s possessions from Father’s home. We consolidate Mother’s appeals and	1
affirm.	2
BACKGROUND	3
{2} 	Father initiated divorce proceedings in June 2014. The final decree, entered	4
on April 18, 2016, granted Father “primary physical custody” of the parties’	5
Children. Mother and Father continued to contest custody and child support and on	6
May 4, 2017, agreed to resolve their disputes through binding arbitration. On	7
October 24, 2017, the arbitrator entered its award giving Father sole legal custody	8
of Children and establishing a 50/50 time-sharing schedule. In addition, the	9
arbitrator required Father to pay Mother $1,094 a month in child support. The child	10
support award was based on Mother’s July 2017 pay stub and Father’s 2016 1040	11
tax forms.	12
{3} 	Mother filed a motion to vacate the arbitration award on November 3, 2017,	13
“due to violation of [NMSA 1978,] 44-7A-24 [(2001)] and [NMSA 1978,] 40-4-9.1	14
[(1999)].” The district court held a hearing on multiple motions, including Mother’s	15
motion to vacate and, after hearing testimony, entered an order on April 6, 2018. The	16
court found that the parties agreed to a 50/50 time-sharing schedule and upheld the	17
arbitrator’s decision on child support. On April 4, 2018, two days before the district	18
court’s order, Mother filed a motion to modify child support, but due to multiple	19

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delays, the district court was not able to hold a hearing to calculate child support	1
until July 2018.	2
{4} 	At the hearing on the motion to modify child support, the district court used	3
both parents’ 2017 tax returns, W-2s, and a 50/50 time-sharing schedule to calculate	4
child support and found a modification was not warranted under NMSA 1978,	5
Section 40-4-11.1 (2008) because the recalculation did not produce at least a 20	6
percent increase or decrease in the amount of monthly support. Mother filed a motion	7
for reconsideration the next day which the district court denied on August 6, 2018,	8
finding that the child support was calculated on the parties’ “actual income for	9
2017.”	10
{5} 	Mother filed a motion in September 2018, requesting a hearing to “remove	11
any and all” of Children’s possessions from Father’s house because Children were	12
not “currently living with [Father]” and because Father threatened to “sell or give	13
away [Children’s] items if they [did not] stay with him.” The district court denied	14
the motion without a hearing, finding that Children had lived primarily with both	15
parents at various times and that there was no reason to believe this “haphazard	16
custody arrangement” would change. Mother appeals both orders.	17

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DISCUSSION	1
I. 	Denial of Mother’s Request to Modify Child Support Amount	2
{6} 	Mother’s first argument is that the district court erred when it denied Mother’s	3
motion to modify the amount of monthly child support paid by Father to Mother.	4
More specifically, Mother argues the district court improperly calculated the amount	5
of monthly child support owed by Father by (1) using income from Mother’s second	6
job despite the court’s alleged prior indication that it would not do so; (2) using tax	7
returns from 2017, which did not take into account Father’s increased salary, to	8
calculate the 2018 child support amount; and (3) failing to account for the actual	9
time Children spent at Mother’s house. We disagree.	10
{7} 	We review child support determinations made by the district court for an	11
abuse of discretion. Jury v. Jury, 2017-NMCA-036, ¶ 26, 392 P.3d 242. The district	12
court’s 	discretion 	“must 	be 	exercised 	in 	accordance 	with 	the 	child 	support	13
guidelines.” Styka v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16. “A	14
district court abuses its discretion if it applies an incorrect standard, incorrect	15
substantive law, or its discretionary decision is premised on a misapprehension of	16
the law.” 	Jury, 2017-NMCA-036, ¶ 26 (internal quotation marks and citation	17
omitted).	18
{8} 	We first consider whether the district court erred in considering Mother’s	19
income from sources beyond her primary occupation as a nurse for Albuquerque	20

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Public Schools in determining the parties’ obligations for child support. Section 40-	1
4-11.1(C)(1) provides that, for purposes of establishing or modifying child support,	2
“ ‘income’ means actual gross income of a parent if employed to full capacity or	3
potential income if unemployed or underemployed.” Notwithstanding the plain	4
language of this statute, Mother contends the district court should not have	5
considered all sources contributing to her gross income because the court indicated	6
in an earlier hearing that it would not count income from her “second job” in	7
determining the appropriate amount of support. However, the district court’s	8
statements were mere musings about possible working capacities and even if they	9
were not, “no statement made by [a] trial judge in [a] divorce hearing is of any	10
binding effect in that case or in any case except as included in the findings of fact,	11
conclusions of law, and judgment entered in the case. This is true as to all statements	12
of trial judges[.]” Wray v. Pennington, 1956-NMSC-120, ¶ 8, 62 N.M. 203, 307 P.2d	13
536. Mother cites no legal authority establishing that such a statement will bind the	14
court in contravention of Section 40-4-11.1(C)(1). See In re Adoption of Doe, 1984-	15
NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that issues not supported by	16
cited authority will not be considered on appeal).	17
{9} 	Here, the district court found that Mother had “historically earned income	18
from several jobs during the parties’ marriage and divorce, including through the	19
calendar year 2017,” and that her income was variable from month to month. It	20

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therefore relied on tax information for its calculations, in accordance with statutory	1
authority. See § 40-4-11.1(K) (stating when “income varies a lot from month to	2
month, [the district court should use] an average of the last twelve months, if	3
available, or last year’s income tax return” (emphasis added)); § 40-4-11.1(C)(2)	4
(stating “gross income” includes “income from salaries, wages, . . . and bonuses).	5
Accordingly, the district court did not abuse its discretion by relying on Mother’s	6
2017 tax forms, which included income from her second job, for its child support	7
calculation. See 40-4-11.1 (c)(2), (K)”; see also Styka, 1999-NMCA-002, ¶ 11 (“We	8
believe the language of Section 40-4-11.1(C)(2) requires consideration of the actual	9
amount of income from the statutorily listed sources in determination of each	10
parent’s gross income.”).	11
{10} 	We next turn to Mother’s contention that the district court improperly	12
excluded evidence of Father’s increased income in 2018 when it denied Mother’s	13
April 2018 motion to modify the amount of child support. The district court “may	14
modify a child support obligation upon a showing of material and substantial	15
changes in circumstances subsequent to the adjudication of the pre-existing order	16
[on child support].” NMSA 1978, § 40-4-11.4(A) (1991). A “presumption of	17
material and substantial changes in circumstances” exists “if application of the child	18
support guidelines . . . would result in a deviation upward or downward of more than	19

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[20] percent of the existing child support obligation and the petition for modification	1
is filed more than one year after the filing of the pre-existing order.” Id.	2
{11} 	Mother argues that because Father received a raise in January 2018, the	3
district court should have calculated his support obligation based upon his projected	4
2018 income rather than the income reported on his 2017 tax returns. However,	5
Mother fails to point to anything in the record nor does she develop an argument	6
establishing that Father’s 2018 pay raise would have modified the child support	7
amount by 20 percent or more. We therefore do not review this argument. See Muse	8
v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (holding “[w]e will	9
not search the record for facts, arguments, and rulings in order to support generalized	10
arguments”); see also Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701	11
(“This Court has no duty to review an argument that is not adequately developed.”).	12
{12} 	We next address Mother’s argument that the district court should have	13
modified the child support amount because there was a change in the time-sharing	14
schedule such that she had primary physical custody of Children. Our understanding	15
of Mother’s argument is that Children began primarily living with her beginning in	16
May 2018 and, therefore, she is entitled to an increase in child support from that time	17
as a result of an increase in the amount of time Children spent with her. However,	18
the district court expressly rejected this argument, based on the parties’ history of	19
frequently changing custody arrangements. Section 40-4-11.1(F)(2) requires that the	20

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district court use Worksheet B for child support calculations, which the district court	1
used in this case, when the children spend at least 35 percent of their time in each	2
parent’s home. See § 40-4-11.1(D)(3) (defining “shared responsibility” as a custody	3
arrangement where children “spend at least [35] percent of the year in each home.”)	4
Mother fails to show how the district court applied “an incorrect standard, incorrect	5
substantive law, or its discretionary decision is premised on a misapprehension of	6
the law.” Jury, 2017-NMCA-036, ¶ 26 (internal quotation marks and citation	7
omitted). 	Moreover, 	since 	Mother 	filed 	her 	appeal, 	the 	district 	court 	has	8
subsequently adjusted child support based on actual time-sharing for 2018, making	9
Mother’s time-sharing argument moot. See Crutchfield v. N.M. Dep’t of Taxation &	10
Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“[a] reviewing court	11
generally does not decide . . . moot questions”). We conclude that the district court	12
did not abuse its discretion in denying Mother’s motion to modify the amount of	13
child support.	14
II. 	Children’s Possessions at Father’s House	15
{13} 	Finally, we turn to Mother’s argument that the district court erred in denying	16
her motion to remove Children’s belongings from Father’s home. Mother broadly	17
argues that the district court “acted unconstitutionally, . . . violated the rules of	18
evidence[,]” and violated “New Mexico’s Creed of Professionalism” in declining to	19
schedule a hearing on the motion. The district court retains discretion to make	20

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determinations about hearings and evidence. See State v. Hargrove, 1989-NMSC-	1
012, ¶ 21, 108 N.M. 233, 771 P.2d 166 (explaining that the district court has “the	2
discretion to control trial proceedings to avoid the needless consumption of time[.]”).	3
A district court is not always required to hold an in-person hearing, and some matters	4
are properly heard based solely on review of the pleadings submitted by the parties.	5
See N.M. Transp. Dep’t, Motor Vehicle Div. v. Yazzie, 1991-NMCA-098, ¶ 12,112	6
N.M. 615, 817 P.2d 1257 (holding that the defendant received a hearing when the	7
district court made its decision based on a petition for relief and an administrative	8
record, without in-person argument). A matter is “heard” when the district court	9
makes a ruling on an issue. See id. (defining a “hearing” as “as every step where the	10
[court] is called upon to rule for or against any party”). Furthermore, Mother fails to	11
cite to any authority in support of her argument that the district court abused its	12
discretion in denying her motion and we therefore assume none exists. See In re	13
Adoption of Doe, 1984-NMSC-024, ¶ 2 (issues not supported by cited authority will	14
not be considered on appeal); Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28,	15
320 P.3d 482 (“Where a party cites no authority to support an argument, we may	16
assume no such authority exists.”); see also Woodhull v. Meinel, 2009-NMCA-015,	17
¶ 30, 145 N.M. 533, 202 P.3d 126 (“Although pro se pleadings are viewed with	18
tolerance, a pro se litigant, having chosen to represent himself, is held to the same	19
standard of conduct and compliance with court rules, procedures, and orders as are	20

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members of the bar”) (internal quotation marks and citation omitted). Accordingly,	1
we decline to address Mother’s argument, and affirm the district court’s denial of	2
her motion to remove Children’s belongings from Father’s home.	3
CONCLUSION	4
{14} 	For the foregoing reasons, we affirm.	5
{15} 	IT IS SO ORDERED.	6
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_____________________________	9
BRIANA H. ZAMORA, Judge	10
WE CONCUR:	11
_______________________________	12
LINDA M. VANZI, Judge	13
_______________________________	14
JACQUELINE R. MEDINA, Judge	15