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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41032

VALENTINA E. WALKER n/k/a

VALENTINA E. BASILE,

Petitioner-Appellant,

v.

JOSEPH C. WALKER,

Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Debra Ramirez, District Court Judge

Law Office of Augustine M. Rodriguez, LLC

Augustine M. Rodriguez

Albuquerque, NM

for Appellant

Durham, Pittard & Spalding, LLP

Caren I. Friedman

Philip M. Kovnat

Santa Fe, NM

for Appellee

MEMORANDUM OPINION

MEDINA, Judge.

{1} Petitioner Valentina E. Walker n/k/a Valentina E. Basile, appeals the district 

court’s final order on Respondent Joseph C. Walker’s objections to the hearing officer’s 

child support modification award. The hearing officer reached its modified child support

award based in part on a calculation that included the cost of sending the parties two 

minor children to private school. Sending children to private school was not the status 
quo and was Petitioner’s unilateral decision. In its order, the district court held that any 

cost or expense for sending children to private school is Petitioner’s responsibility and 

that those costs and fees would “not be considered on any child support worksheet.” 

The district court’s order also held that Petitioner would have to reimburse Respondent 

for a series of child support overpayments. We affirm. 

DISCUSSION

{2} Because this is a memorandum opinion and the parties are familiar with the 

lengthy procedural history and facts on appeal, we discuss the facts only as they 

become necessary to our analysis. 

{3} On appeal, Petitioner argues the district court (1) erred because it had previously 

ruled that Respondent would not be reimbursed for overpayments; (2) misstated the law 

of apportionment regarding private school costs by failing to consider “substantial 

hardship” to Respondent, as well as “any extraordinary educational expenses for 

children of parties,” see NMSA 1978, §§ 40-4-11.2 (2021, amended 2023); 11.1(K)(2) 

(2021, amended 2023);1(3) erred by failing to rule on the issue of whether Petitioner 

would be reimbursed for the credit Respondent received by failing to provide medical 

insurance to the children; and (4) deprived Petitioner of due process by holding a 

hearing when she was on active duty with the U.S. Air Force. Respondent declined to 

file an answer brief. See Mannick v. Wakeland, 2005-NMCA-098, ¶ 39, 138 N.M. 113, 

117 P.3d 919 (“[A]n appellee does not . . . have to file a brief, and the appellate court 

will review the case in accordance with the same favorable view of the proceedings 

below.”). 

{4} Child support determinations are reviewed for abuse of discretion. Jury v. Jury, 

2017-NMCA-036, ¶ 26, 392 P.3d 242. “The [district] court’s discretion, however, must 

be exercised in accordance with the child support guidelines.” Styka v. Styka, 1999-

NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16. “The [district] court abuses discretion when 

it applies an incorrect standard, incorrect substantive law, or its discretionary decision is 

premised on a misapprehension of the law.” Klinksiek v. Klinkseik, 2005-NMCA-008, 

¶ 4, 136 N.M. 693, 104 P.3d 559 (alteration, internal quotation marks, and citation 

omitted). “In determining whether a deviation from the child support guidelines resulted 

from a misapprehension of law, we apply de novo review.” Jury, 2017-NMCA-036, ¶ 26.

{5} We begin with Petitioner’s argument that the district court erred by holding that 

Respondent was entitled to reimbursement for past child support overpayments 

because it had previously orally ruled that Respondent would not be reimbursed. 

Petitioner claims that the district court held that Respondent would not receive 

reimbursement during a presentment hearing when it stated, “I understand why 

[Respondent] would want consideration for an overpayment. I would suggest that that’s 

not a good . . . I would suggest that is absolutely unnecessary.” However, following a 

subsequent presentment hearing, the district court held that Respondent would receive 

 

1All references to Sections 40-4-11.2 and 40-4-11.1(K)(2) noted in this opinion are to the 2021 versions 

of the statutes, which were in effect when this case was decided. 
reimbursement for his overpayments, which totaled $7,864.54. Petitioner states that the 

entire final order should be set aside based on the district courts oral statement 

suggesting that reimbursement was unnecessary. We disagree and explain.

{6} “Formal written orders filed of record normally supersede oral rulings, and oral 

rulings cannot normally be used to contradict written orders.” Enriquez v. Cochran, 

1998-NMCA-157, ¶ 25, 126 N.M. 196, 967 P.2d 1136; see also Smith v. Love, 1984-

NMSC-061, ¶ 4, 101 N.M. 355, 683 P.2d 37 (noting that the district court may change 

its ruling “anytime before the entry of the final judgment”). Here, prior to issuing the final 

order, the district court heard additional evidence at a subsequent presentment hearing 

during which Respondent showed that he had been paying $462.62 monthly for health 

insurance, which had not been deducted from his child support payments for seventeen 

months. Given this evidence, the district court clarified that Respondent should, in fact, 

receive reimbursement for his overpayments. See Boutz v. Donaldson, 1999-NMCA131, ¶ 8, 128 N.M. 232, 991 P.2d 517 (“[A] reviewing court will make all reasonable 

inferences from the evidence to support the judgment below.”). Based on the forgoing, 

we affirm the district court because Petitioner has failed to demonstrate error in the face 

of our clear case law regarding the district court’s discretion to issue a written order that 

differs from an oral ruling.

{7} Petitioner’s second argument concerns the district court’s determination that 

“sole legal custody does not provide [Petitioner] the ability to hold [Respondent] 

financially responsible” for sending the children to private school. Petitioner claims that 

Respondent bore the burden of proving that “contributing to the costs of the private 

school would be a substantial hardship to him” before the district court could reach this 

conclusion. We disagree—Petitioner misconstrues the burdens of the parties. Here, 

Petitioner requested the deviation from the child support guidelines to include the costs 

of private school tuition. As such, she carried the burden to justify the requested 

change. See Jury, 2017-NMCA-036, ¶ 37 (“[A] petitioner must demonstrate a 

substantial change in circumstances affecting the welfare of the children to justify a 

modification.”); see also NMSA 1978, § 40-4-11.4(A) (2021) (providing that “[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”).

{8} In addition, we do not read the permissive language of Section 40-4-11.2 to 

require a party to demonstrate substantial hardship to justify deviating from the child 

support guidelines. See id. (“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 and basic child support 

schedule.” (emphasis added)). “The word ‘may’ is permissive, and is not the equivalent 

of ‘shall,’ which is mandatory.” Cerrillos Gravel Prods., Inc. v. Bd. of Cnty. Comm’rs, 

2004-NMCA-096, ¶ 10, 136 N.M. 247, 96 P.3d 1167; cf. Pederson v. Pederson, 2000-

NMCA-042, ¶ 4, 129 N.M. 56, 1 P.3d 974 (noting that “the Supreme Court’s use 

of may, rather than shall, was intended to underscore the [district] court’s discretion in 

allocating social security benefits payable directly to the child”). We therefore decline to 
hold that Respondent had to prove substantial hardship to refute a potential change in 

child support.

{9} Petitioner additionally argues that the district court misconstrued the law upon 

concluding that Respondent did not have to pay for the children’s private school tuition 

because child support guidelines mandate consideration of “extraordinary educational 

expenses” under Section 40-4-11.1(K)(2). Neither the statute nor our case law support 

Petitioner’s claim. See Styka, 1999-NMCA-002, ¶ 42 (noting that the use of the word 

“may” in Section 40-4-11.1(K) indicates that the district court has discretion to decide 

whether to include the costs of private school as “extraordinary educational expenses” 

in the child support worksheet). Consequently, we conclude that the district court did not 

err in its application of Sections 40-4-11.1(K)(2) or -11.2.

{10} We next consider Petitioner’s third argument—that the district court failed to rule 

on the issue of whether she would be reimbursed for medical insurance expenses. 

Petitioner filed a motion for summary and declaratory judgment that included a request 

for reimbursement for medical insurance expenses. Several months later, the parties 

entered a stipulated order in which Petitioner withdrew her motion for summary and 

declaratory judgment. Having withdrawn her claim, we hold that Petitioner cannot now 

complain that the district court did not rule on this issue. See Chris L. v. Vanessa O., 

2013-NMCA-107, ¶ 27, 320 P.3d 16 (“Invited error occurs where a party has 

contributed, at least in part, to perceived shortcomings in a [district] court’s ruling, and, 

as a result, the party should hardly be heard to complain about these shortcomings on 

appeal.” (alteration, omission, internal quotation marks, and citation omitted)).

{11} We thus turn to Petitioner’s fourth and final argument. Petitioner claims that the 

district court deprived her of due process by conducting a hearing while she was on 

active duty with the U.S. Air Force and delaying in issuing a final order. Petitioner claims 

that the U.S. Code, specifically 50 U.S.C. § 3938 (Child custody protection), “requires 

that legal proceedings be stayed pending return from military deployment.” Section 

3938 states, 

(a) Duration of temporary custody order based on certain deployments

If a court renders a temporary order for custodial responsibility for a 

child based solely on a deployment or anticipated deployment of a parent 

who is a servicemember, the court shall require that the temporary order 

shall expire not later than the period justified by the deployment of the 

servicemember.

(b) Limitation on consideration of member’s deployment in 

determination of child’s best interest

If a motion or a petition is filed seeking a permanent order to modify 

the custody of the child of a servicemember, no court may consider the 

absence of the servicemember by reason of deployment, or the possibility 
of deployment, as the sole factor in determining the best interest of the 

child.

(c) No Federal jurisdiction or right of action or removal

Nothing in this section shall create a Federal right of action or 

otherwise give rise to Federal jurisdiction or create a right of removal.

(d) Preemption

In any case where State law applicable to a child custody 

proceeding involving a temporary order as contemplated in this section 

provides a higher standard of protection to the rights of the parent who is a 

deploying servicemember than the rights provided under this section with 

respect to such temporary order, the appropriate court shall apply the 

higher State standard.

(e) Deployment defined

In this section, the term “deployment” means the movement or 

mobilization of a servicemember to a location for a period of longer than 

60 days and not longer than 540 days pursuant to temporary or 

permanent official orders

(1) that are designated as unaccompanied;

(2) for which dependent travel is not authorized; or

(3) that otherwise do not permit the movement of family 

members to that location.

{12} No portion of this statute supports Petitioner’s claim that it requires proceedings 

be stayed during military deployment. See State ex rel. Child., Youth & Fams. Dep’t v. 

Douglas B., 2023-NMSC-028, ¶ 13, 539 P.3d 294 (noting that when interpreting the 

U.S. Code, “we look first to the plain language of the statute, giving the words their 

ordinary meaning” (internal quotation marks and citation omitted)). We further note that 

§ 3938 only pertains to child custody disputes—not child support, which was at issue at 

the emergency hearing that occurred when Petitioner was deployed. 

{13} Additionally, we note that at the emergency hearing, which Respondent had 

requested to prevent the children from attending private school, Petitioner’s counsel 

motioned for a continuance until she returned. The district court denied the motion 

because Petitioner was able to attend the hearing telephonically. As such, Petitioner 

has failed to demonstrate prejudice arising from her physical absence at the emergency 

hearing—she attended telephonically and had an opportunity to respond to 

Respondent’s request to prevent the children from attending private school. 
{14} Finally, Petitioner argues that the district court denied her due process by failing 

to issue a final order until a year-and-a-half after the evidentiary hearing. However, 

Petitioner has not offered any authority to support her argument, and the argument is 

undeveloped—Petitioner fails to explain how she was prejudiced beyond her general 

claim. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 

(“We assume where arguments in briefs are unsupported by cited authority, counsel 

after diligent search, was unable to find any supporting authority.”); Headley v. Morgan 

Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review 

unclear arguments.”). We therefore conclude that Petitioner has failed to demonstrate 

reversible error.

CONCLUSION

{15} For the foregoing reasons, we affirm.

{16} IT IS SO ORDERED.

JACQUELINE R. MEDINA, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge 

MICHAEL D. BUSTAMANTE, Judge,

retired, Sitting by designation