This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 HERMAN D. SANCHEZ, 7 Petitioner-Appellant, 8

v. NO. 28,997 9 KELLYANN J. SANCHEZ, 10 Respondent-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 George P. Eichwald, District Judge 13 The Family Law Firm, P.C. 14 Felissa M. Garcia 15 Albuquerque, NM 16 for Appellant 17 Monica D. Baca 18 Albuquerque, NM 19 for Appellee 20 MEMORANDUM OPINION 21 FRY, Chief Judge. 22 Father appeals the district court’s or der denying his objections to the special 23 master’s report and calculating child support obligations for th e parties. Father 24 challenges the recommendations of the special master, the calculation of child support, 252 and the inclusion of private school tuition in the calculation. Father also claims that 1 attorney fees should be granted to him ba sed on Mother’s violation of a prior court 2 order, and Father asks this Court to review the district court’s procedures for assigning 3 cases to be heard by a special master. We affirm the district court’s order. 4 BACKGROUND 5 Father and Mother have tw o children, Jonathan and Jontel. In July 2004, the 6 parties entered into a stipulated settlement agreement and final decree of dissolution 7 of marriage (July stipulation), which reso lved issues regarding child custody, child 8 support, property, debts, taxes, and attorney fees. The parties also agreed that the 9 status quo would be maintained with re spect to doctors, dentists, child care, 10 extracurricular activities, and education at San Felipe Catholic School for Jonathan. 11 The parties agreed, by initialing changes made to the July s tipulation, that they would 12 share the cost of Jonathan’s tuition. The July stipulation set Father’s obligation for 13 child support at $802 per month. The districtcourt judge initially assigned to the case 14 was Judge Jewell, who found in a minute order that all issues between the parties were 15 resolved by the July stipulation “with the exception of the issue of private tuition of 16 the minor child, as it relates to child s upport.” Judge Jewell referred the issue of 17 “Jontel’s private education, as it relates to a child support calcu lation,” to a special 183 master. Judge Jewell specifically noted th at Jonathan’s private education expenses 1 were already included in the child support calculations. 2 After hearing argument from the parties, the special master recommended that 3 Jontel be allowed to atte nd San Felipe Catholic School be ginning at the same age that 4 Jonathan started attending the school and th at both Father and Mother should share 5 the cost of Jontel’s tuition. Although the parties argued other issues during the 6 hearing, the special master clarified that the only issues before her were whether 7 Jontel should attend private school and whateffect that would have on the parties’ 8 child support obligations. During the discussion on the calculation of child support, 9 Mother agreed that the speci al master could consider Father’s payments for the 10 children’s insurance and her in crease in income since the en try of the July stipulation. 11 Accordingly, the special master recommended that, beginning October 1, 2004, 12 Father’s child support obligation should bereduced to $750 per month, and beginning 13 June 1, 2005, the date that Jontel was to start school, Father’s child support obligation 14 should increase to $968 per month. Father filed objections to the special master’s 15 report on November 5, 2004. Father claimed that Jontel’s private school tuition 16 should not be part of the child support oblig ation. Father also claimed that, without 17 an evidentiary hearing, it was error to find that the parties must continue to pay for 184 Jonathan’s tuition as part of the child support obligation. A hearing on Father’s 1 objections was set for January 19, 2005. 2 On the date of the hearing, Judge Jewell recused due to the fact that Mother was 3 employed with the district court. Betw een January and Augus t 2005, the chief judge 4 of the second judicial district recused all other judges in the judicial district from 5 hearing the case, Father’s counsel withdr ew from representation of Father, and the 6 Supreme Court designated Judge Ei chwald of the thirteenth j udicial district to preside 7 over the case. A hearing was set for Marc h 1, 2006, but was ne ver held, reportedly 8 because the parties did not r eceive notice. A number of hearings were set and then 9 vacated. Ultimately, a hearing on all pending matters was held on April 29, 2008. 10 At the April 2008 hearing, the parties presented argument on several matters, 11 including Father’s objections to the special master’s recommendations and the parties’ 12 child support obligations. Judge Eichwald denied Father’s objections to the special 13 master’s report and entered a child support order based on the parties’ 2007 income. 14 DISCUSSION 15 On appeal, Father raises a number of issues that concern the parties’ stipulation 16 entered on July 26, 2004, and the hearing before the special master on September 22, 17 2004. For example, Father claims thathis overtime earnings should not have been 18 considered when calculating child support; that it was error to require him to share the 195 cost of tuition for Jonathan, and that even if he were to share in tuition costs, there 1 should have been a downward deviation in child support; and that Judge Jewell should 2 not have assigned the special master to hear any portion of the case. In support of his 3 arguments, Father refers to oral comments made by Judge Jewell prior to entry of the 4 July stipulation and oral comments made by the special master and Judge Eichwald. 5 We point out, however, that “[o]ral statements of a judge in articulating [a] ruling . . 6 . do not constitute a ‘decision’ . . . and e rror may not be predicated thereon.” Balboa 7 Constr. Co. v. Golden , 97 N.M. 299, 304, 639 P.2d 586, 591 (Ct. App. 1981). We will 8 consider oral comments as instructive in de termining the intent of the judge only when 9 there is ambiguity in the judge’s decision. See San Pedro Neighborhood Ass’n v. Bd. 10 County Comm’rs , 2009-NMCA-045, ¶ 8, 146 N.M. 106, 206 P.3d 1011. However, 11 Father does not claim ambiguity in the July stipulation, the special master’s 12 recommendations, or Judge Eichwald’s order. Therefore, we will not consider 13 Father’s arguments to the extent that they rely on oral comments made below. 14 The parties signed a stipulated agreemen t in which they agreed to the child 15 support calculations, that Jonathan would c ontinue to attend private school, and that 16 the cost of Jonathan’s tuition would be in cluded in the child support. Judge Jewell 17 clarified that all of the issues between th e parties were resolved with the exception of 18 whether Jontel should also attend private sc hool and what effect that would have on 196 the parties’ child support obligations, and th e parties agreed with that clarification. 1 Judge Jewell entered a minute order to that effect and sent the case to the special 2 master for recommendations solely on the remaining unresolved issues. As noted 3 above, although Father attempted to raise other issues befo re the special master, the 4 special master informed Father that her review was limited to the unresolved issues 5 included in the minute order. 6 Father did not assert below any justification for setting aside the July stipulation 7 to which he had agreed. Therefore, we rej ect his challenges to the July stipulation’s 8 inclusion of Jonathan’s private school tuition and the calculation of child support 9 based on it. As for his argument that JudgeJewell should not have appointed a special 10 master, Father concedes that he never madethis argument below. Therefore, we will 11 not consider this claim. See Crutchfield v. N.M. De p’t of Taxation & Revenue , 2005- 12 NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (filed 2004). We limit our review to 13 the decisions that were made by Judge Eichwald in his order of August 18, 2008. 147 Objections to the Special Master’s Recommendations 1 Father attacks the special master’s recommendations, using a broad, scattershot 2 approach. We therefore first review the role of a special master and delineate the 3 issues decided by the speci al master in this case. 4 Judge Jewell appointed the special ma ster pursuant to Rule 1-053 NMRA, 5 which provides that the district court may limit the powers of the special master to 6 review and report on particular issues; the special master shall submit a report to the 7 district court and either party may file objections to the report; and the district court, 8 after holding a hearing, may adopt, modify, or reject the report in whole or in part or 9 may receive further evidence or may send th e case back to the special master with 10 instructions. Rule 1-053(C), (E)(1), (2). In this case, Judge Eichwald adopted the 11 special master’s report after holding a hearing on April 29, 2008. 12 Judge Jewell gave the special master au thority to address only two questions: 13 (1) whether Jontel should be enrolled in private school that both parties would pay for, 14 and (2) what effect enrollment in priv ate school would have on the child support 15 calculations. Importantly, Judge Jewell did not give the special master authority to 16 revisit issues decided by the July stipulati on, including the income of the parties used 17 for calculation of child support or the priv ate school tuition for Jonathan. The issue 18 of Jonathan’s tuition was not before the special master and not included in her 198 recommendations and, therefore, Father’s attempt to include the issue in his objections 1 was ineffective. The special master’s recommendations were that Jontel should also 2 be enrolled in private school and that th e child support calculation should be adjusted 3 to include tuition for Jontel, Mother’s in crease in income, and Father’s insurance 4 payments. 5 Father claims that th e special master’s recommendations regarding child 6 support were arbitrary and capricious and not supported by substantial evidence. 7 Father claims that the special master erre d in assuming that Father would continue to 8 earn overtime wages and in failing to reduce Father’s child support obligation based 9 on his claim that he had not worked overtime hours for two months prior to the 10 hearing. Father also argue s that there was no evidence presented to the special master 11 showing that the parties could afford to pay the private school tuition. 12 Father’s arguments are without merit. The figure used by the special master 13 regarding Father’s income was the same figure Father agreed to in the July stipulation 14 for child support calculations. As directed by Judge Jewell and as found by the 15 special master, the only child support issue that the special master had the authority 16 to address was whether Jontel’s private sc hool tuition should be shared by the parties 17 for purposes of child support. The special master did not have the authority to 18 determine whether Father’s income shoul d or should not have included overtime. 199 On the issue of whether the parties coul d afford private school tuition for Jontel, 1 the evidence presented to the special mast er established that the tuition was $300 per 2 month. Father maintained that he could not afford to pay his share of Jontel’s tuition 3 because he had a mortgage payment of $1055 per month and a car payment of $663 4 per month, and that neither child shoul d attend private school. Yet Father had 5 stipulated that Jonathan should continue to attend private school and that he would 6 continue to pay his share of Jonathan’s tuition. The special master concluded that 7 Jontel should have the same advantage. 8 To the extent that Father is claimi ng that Judge Eichwald did not properly 9 review the special master’s recommendati ons before adopting them, we disagree. 10 “[T]he district court must accept the special master’s findings of fact unless they are 11 clearly erroneous.” See Lozano v. GTE Lenkurt, Inc. , 1996-NMCA-074, ¶ 16, 122 12 N.M. 103, 920 P.2d 1057. Given th e discrete issues assigned to the special master to 13 consider and the stipulations the parties ma de in the July stipulation, we cannot say 14 that the special master’s findings were not supported by substantial evidence. 15 Behavior of the Special Master 16 Father also claims that the special master behaved improperly by advocating on 17 behalf of Mother. In his brief, Father states that he provided Judge Eichwald with 18 specific examples of the special master’s improper conduct and bias. We have 1910 reviewed the transcript of the hearing, and although Father’s counsel used such words 1 as “bias” when presenting Father’s case, there is no indication that Father’s counsel 2 specifically asked Judge Eichwald to find that the special master behaved 3 inappropriately. Nevertheless, because Father’s counsel read from the transcript of 4 the hearing before the special master and argued to Judge Eichwald that the special 5 master made numerous errors, we will address Father’s claims. 6 According to Father, the special mast er failed to perfo rm her duties with 7 impartiality when she suggested that Motherwas facing struggles similar to Father, 8 stated that expenditures by Father might be more than those of Mother but that the 9 percentages were the same, and explained that it would not be appropriate for Mother 10 to pay 50% of the tuition because Mother did not have 50% of the income. Father 11 analogizes to the provisions of the Code of Judicial Conduct that require a judge to 12 recuse if the judge’s impartiality might be questioned. See Rule 21-400(A)(1) 13 NMRA. We are not persuaded. “In order to be disqualifying, [a judge’s] bias or 14 prejudice must stem from an extrajudicial source and result in an opinion on the merits 15 on some basis other than what the judge l earned from his participation in the case.” 16 Dawley v. La Puerta Arch itectural Antiques, Inc. , 2003-NMCA-029, ¶ 39, 133 N.M. 17 389, 62 P.3d 1271 (filed 2002) (internal quotation marks and citation omitted). There 18 is nothing in the record before us indicating that the special master’s findings were 1911 based on any extrajudicial source. Indeed , the special master’s comments appear to 1 us to be in the nature of explanations of her recommendations, which are not 2 prohibited. 3 Father also claims that the special master unfairly refused to consider his 4 argument against including overtime earnings inhis income despite the fact that the 5 special master revised the worksheet to reflect Mother’s increase in income and 6 Father’s insurance costs. We are not pe rsuaded. The special master changed the 7 worksheet to reflect Mother’s increased in come and Father’s payment of insurance 8 with the agreement of the parties. Motherapparently did not agree to revise the 9 worksheet to eliminate Father’s overtime earnings, and the special master had no 10 authority to make such a revision. Wehold that the special master did not act 11 inappropriately. 12 Child Support Calculation 13 Father challenges the calculation of child support in this case by broadly 14 attacking the calculation from the July s tipulation, the calculation recommended by 15 the special master, and the award entered by Judge Eichwald. As discussed above, the 16 parties agreed to the child support award in the July stipulation, and Father did not 17 move to modify that award. The ch ild support award recommended by the special 18 master was based on Jontel’s tuition, Mo ther’s increased in come, and Father’s 1912 payments for insurance. Judge Ei chwald adopted the special master’s 1 recommendation that Jontel’s tuition be shared by the parties. Therefore, the only 2 determination left for Judge Eichwald to make was the calculation of the parties’ child 3 support obligations beginning from the date of the April 29, 2008, hearing. 4 An award of child support is within the discretion of the trial court so long as 5 it is in compliance with child support guidelines. See Quintana v. Eddins , 6 2002-NMCA-008, ¶ 9, 131 N.M. 435, 38 P.3d 203 (filed 2001). Father argues that 7 Judge Eichwald erred in ignoring his concern that the parties could not afford private 8 school tuition, in ignoring “Judge Jewell’s inclination and direction to lower child 9 support,” and in refusing to allow a downw ard deviation based on the imputation of 10 income to him. We are not persuaded. We find nothing in the record to support 11 Father’s claim that Judge Eichwald ignored the arguments and evidence presented by 12 the parties. Instead, the r ecord shows that Judge Eichwald heard many portions of the 13 transcripts from the hearings before J udge Jewell and the special master, heard 14 extensive argument from counsel, and asked the parties a number of questions before 15 making his decision. In addition, Judge Ei chwald directed the parties to submit 2007 16 W-2 forms to ensure that the information re garding their income was current. As for 17 Father’s claim that Judge Eichwald ignored “direction” from Judge Jewell, Father 18 refers only to oral comments made at th e July 2004 hearing and not to the language 1913 in the July stipulation or in Judge Jewell’ s minute order. As di scussed above, the oral 1 comments Judge Jewell made before entering the July stipulation do not constitute a 2 decision, and we will not find error based on those comments. See Balboa Constr. 3
Co. , 97 N.M. at 304, 639 P.2d at 591. 4 Finally, Father claims that income was erroneously “imputed” to him for 5 purposes of calculating child support. Fath er argues that by virtue of the imputed 6 overtime income, his share of “uncovered e xpenses increased proportionately to the 7 increase of his income due to the addition of unearned overtime” and that his 8 “proportionate share” of expenses for me dical, dental, and extracurricular activities 9 was inflated. 10 With respect to the child support calculation, Judge Eichwald stated that the 11 child support award was based on the partie s’ 2007 earned income. We presume that 12 Judge Eichwald was correct, and it is Father’s burden to de monstrate error. See 13 Farmers, Inc. v. Dal Mach. & Fabricating, Inc. , 111 N.M. 6, 8, 800 P.2d 1063, 1065 14 (1990). Father claims, without providing record support, that his base income was 15 $4,298 per month. Father argued to Judge Eichwald that his “base” income should be 16 used rather than the income established by his 2007 income tax returns. Father has 17 not designated for appeal the income ev idence that Judge Eichwald relied on. 18 Therefore, we presume that the evidence presented to JudgeEichwald established that 1914 Father’s income was $4,509 per month, as listed on the worksh eet Judge Eichwald 1 completed. See Michaluk v. Burke , 105 N.M. 670, 676-77, 735 P.2d 1176, 1182-83 2 (Ct. App. 1987) (explaining that “[w]here the record on appeal is incomplete, the 3 ruling of the [district] court is pres umed to be supported by the evidence”). 4 Furthermore, income is the actual gro ss income and earnings of a parent and 5 includes income from any source. See NMSA 1978, § 40-4-11.1(C)(1), (2) (2008). 6 Income is imputed when a parent is une mployed or not employed to full capacity as 7 shown by a discrepancy betweenthe parent’s actual income and the parent’s earning 8 potential. See State ex rel. Human Se rvs. Dep’t v. Kelley , 2003-NMCA-050, ¶ 13, 133 9 N.M. 510, 64 P.3d 537; Quintana , 2002-NMCA-008, ¶ 23; see also 10 § 40-4-11.1(C)(1). In other words, inco me is based on actual earnings, and imputed 11 income is based on potential earnings. Bas ed on our presumption above, the evidence 12 submitted to Judge Eichwald established that Father’s actual earned income was 13 $4,509 per month, and this amount did notinclude Father’s potential earnings. 14 Therefore, we reject Father’s argument that the child support award was based on 15 income wrongly imputed to him. 16 To the extent that Father is arguing that Judge Eichwald should not have 17 ordered the parties to pay their proportionate share for extracurricular activities and 18 medical expenses, we point out that the partie s agreed to this in the July stipulation, 1915 and neither party challenged that agreemen t. We hold that Judge Eichwald did not 1 abuse his discretion in entering the award of child support. 2 Attorney Fees 3 Father contends that Judge Eichwald should have required Mother to pay the 4 attorney fees he incurred in enforcing the terms of the July stipulation. The only part 5 of the July stipulation that Judge Eichwaldenforced at Father’s instigation was the 6 requirement that Mother pay the Capitol One credit card bill, even though she had 7 discharged the debt in bankruptcy. JudgeEichwald denied Father’s request for 8 attorney fees, stating that his attorney should have looked into having Father’s name 9 removed from the account and in forming Father that he could pursue an order to show 10 cause against Mother if the bill was not paid. It was within Judge Eichwald’s 11 discretion to decline to award attorn ey fees in this divorce action. See Lucas v. Lucas , 12 95 N.M. 283, 285, 621 P.2d 500, 502 (1980). We hold that Judge Eichwald did not 13 abuse his discretion by refusing to require Mother to pay Father’s attorney fees. 14 Mother requests that we order Father to pay her attorney fees on appeal as the 15 prevailing party in this case, pursuant to Rule 12-403(A) NMRA. Father did not 16 respond to this request. In support of her re quest, Mother states th at Father earns over 17 twice as much as she does, that she cannot a fford the cost of this appeal, and that her 18 attorney fees amount to $5,000, plus tax. Rule 12-403(A) permits an award of 1916 attorney fees on appeal to the prevailing party if such an award is “provided by law.” 1 Although we agree that Mother is the prevailing party, weremand her request to Judge 2 Eichwald to determine, in his discretion, whether Mother is entitled to an award for 3 the attorney fees she incurred in this appeal. This is because many fact-intensive 4 factors inform the determination, such as the economic disparity between the parties, 5 the needs of the parties and the parties’ ability to pay, prior settleme nt offers, the total 6 amount of fees expended by each party, succe ss on the merits, the complexity of the 7 issues, and the abilities of the parties’ attorneys. See Rule 1-127 NMRA (allowing 8 attorney fee awards in divorce actions); see also Garcia v. Jeantette , 2004-NMCA9 004, ¶ 19, 134 N.M. 776, 82 P.3d 947 (filed 2003) (discussing factors to be considered 10 for an award of attorney fees in a domestic relations case). Judge Eichwald is in a 11 better position than we are to a ssess the evidence on these factors. 12 CONCLUSION 13 For the reasons discussed above, we a ffirm the order filed on August 18, 2008. 14 We remand the issue regarding Mother’s re quest for attorney fees related to this 15 appeal. 1617 IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Chief Judge 3 WE CONCUR: 4

5 MICHAEL E. VIGIL, Judge 6

7 ROBERT E. ROBLES, Judge 8