IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 IRENE C. MUNOZ, f/k/a 2 IRENE C. RIVERA, 3 Petitioner-Appellee, 4 and 5 STATE OF NEW MEXICO, ex rel. 6 HUMAN SERVICES DEPARTMENT, 7 Intervenor-Appellee, 8 v. NO. 28,006 9 ALFRED R. RIVERA, 10 Respondent-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 12 Freddie J. Romero, District Judge 13 Irene C. Munoz 14 Roswell, NM 15 Pro Se Appellee 16 Gary K. King, Attorney General 17 Santa Fe, NM 18 Anna Marie Green, Special Assistant Attorney General 19 Roswell, NM 20 for Intervenor-Appellee 212 Alfred R. Rivera 1 Lexigton, SC 2 Pro Se Appellant 3 MEMORANDUM OPINION 4 VIGIL, Judge. 5 Father appeals the district court order modifying child support. Father contends 6 that the district court erred in: (1) ordering a modified child support award that creates 7 a financial hardship for Father; (2) faili ng to review Father’s supporting evidence 8 when deciding whether to deviate from the child support guidelines; (3) not ordering 9 an abatement of child supportfor future summer visitation; (4) not considering the 10 potential child care tax benefit Mother may be receiving and reducing the amount of 11 work-related child care in the child support fo rmula; and (5) not considering that the 12 work-related child care describe d to the court at the hearing is not actually provided 13 to the children. We affirm the district court order. 14 BACKGROUND 15 In February 2004, a stipulated judgment and order was entered ordering 16 Father to pay ongoing child support in th e amount of $443.83 per month, plus $100 17 toward arrearages for a total of $543.83 per month. In April 2007, the State of New 18 Mexico, Human Services Department, Ch ild Support Enforcement Division (CSED) 19 filed a motion to intervene and a motion to modify child support. The district court 203 granted CSED’s motion to intervene. Moth er and Father both appeared and testified 1 on August 7, 2007, at the hearing on the moti on to modify child support. The district 2 court ultimately ordered Father to pay child support in the amount of $878.21 per 3 month retroactive to April 2007, when the motion to modify child support was filed. 4 Father appeals. 5 DISCUSSION 6 Rule 12-213(A)(3) NMRA requires appellants to cite “to the record proper, 7 transcript of proceedings or exhibits supporting each factual representation” in the 8 brief in chief and Rule 12-213(A)(4) requires that the argument in the brief in chief 9 have “citations to authorities, record proper, transcript of proceedings or exhibits 10 relied on.” Father did not cite to the recordproper or transcript of proceedings in his 11 brief. We are not required to search the record for support for Father’s arguments. 12 See Chavez v. Lovelace Sandia Health Sys., Inc. , 2008-NMCA-104, ¶ 37, 144 N.M. 13 578, 189 P.3d 711 (stating that “we are not obligated to search the record to find 14 support for a party’s argument”). “We will notreview issues raised for which there 15 are insufficient references to the record or transcript as required by the rules.” Olguin 16 v. Manning , 104 N.M. 791, 792, 727 P.2d 556, 557 (Ct. App. 1986). Additionally 17 Father attached several “adde nda” to his brief in chief. Because Father fails to show 18 that these documents are in the record on appeal or exhibits in the case, we will not 194 consider them on appeal. See Rangel v. Save Mart, Inc. , 2006-NMCA-120, ¶ 36, 140 1 N.M. 395, 142 P.3d 983 (“[The C ourt of Appeals] do[es] not consider matters not of 2 record.”); Jemko, Inc. v. Liaghat , 106 N.M. 50, 55, 738 P.2d 922, 927 (Ct. App. 1987) 3 (“It is improper to attach to a brief documents which are not part of the record on 4 appeal.”); Poorbaugh v. Mullen , 99 N.M. 11, 16, 653 P.2d 511, 516 (Ct. App. 1982) 5 (stating the rules of appellate procedure do not authorize consideration of documents 6 attached to briefs involving exhibits not identified or tendered into evidence before 7 the trial court). 8 We review the setting of child support for an abuse of discretion. See Styka v. 9 Styka , 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P. 2d 16. “The [district] courts 10 discretion, however, must be exercise d in accordance with the child support 11 guidelines.” Id. We will hold that a district court has abused its discretion “when it 12 applies an incorrect standard, incorrect s ubstantive law, or its discretionary decision 13 is premised on a misapprehension of the law.” Klinksiek v. Klinksiek , 14 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P. 3d 559 (internal quotation marks and 15 citation omitted). 16 1. Child Support Award Amount 17 The statutory child support guidelines, which were followed by the district 18 court in this case, are presumed to provide the proper amount of child support. See 195 Leeder v. Leeder , 118 N.M. 603, 605, 884 P.2d 494, 496 (Ct. App. 1994). Father 1 argues that the modified child support award in the amount of $878.21 per month 2 creates a financial hardship for him. An award that is over 40% of a payor’s gross 3 income is presumed to result in substantial hardship that justifies deviation from the 4 guidelines. See NMSA 1978, § 40-4-11.1(J) (1995) (amended 2008). Father’s gross 5 income, which is not contested, is $4167 per month. Therefore, the monthly child 6 support award totaling $928.21 (including arrear s) equals 22.28% of Father’s gross 7 income. This amount is below the salary threshold for a presumption of substantial 8 hardship. 9 Further, while the district court has di scretion to deviate from the child support 10 guidelines, it is not required to do so. See Boutz v. Donaldson , 1999-NMCA-131, ¶ 11 16, 128 N.M. 232, 991 P.2d 517 (“The ch ild support guidelines constitute a 12 ‘rebuttable presumption’ from which the court may choose to deviate under certain 13 circumstances in the sound discretion of the court, but the court is not required to do 14 so.”). As the district court explained to Father at the h earing, “the court is required 15 to follow the child support wo rksheets unless there is a substantial reason not to, a 16 good reason to deviate, and it’s the practice of this court to follow [the child support 17 worksheets].” The district court did notabuse its discretion in deciding that a 18 deviation from the child support guidelines was not warranted. 196 Because the district court modification of child support was based on 1 application of the child support guidelines, we hold that Father has not shown an 2 abuse of discretion. See Klinksiek , 2005-NMCA-008, ¶ 4 (stating that discretion of 3 the district court must be exercised inaccordance with the ch ild support guidelines). 4 2. Review of Supporting Evidence 5 Father argues that the district court failed to review supporting evidence that he 6 presented at the hearing in support of his argument for a deviation from the guidelines. 7 It appears that all of the ev idence to which Father refers is that which is attached to 8 his brief—documents that we will not consider because Fath er fails to show where in 9 the record he presented these documents to the district court for consideration. 10 Further, Father does not show that thes e documents were exhibits. Therefore, we 11 reject Father’s argument. See Rule 11-103(A)(2) NMRA (providing that error may 12 not be predicated upon a ruling which excl udes evidence unless a substantial right of 13 the party is affected, and the substance of the evidence was made known to the court 14 by offer or was apparent fro m the context within whic h questions were asked); State 15 v. Shaw , 90 N.M. 540, 542, 565 P.2d 1057, 1059 (Ct. App. 1977) (stating that a tender 16 of proof is required to advise the trial court of the nature of the evidence so that the 17 trial court can intelligently consider it); State v. Lujan , 99 N.M. 453, 456, 659 P.2d 18 905, 908 (Ct. App. 1983) (stating that an appellate court cannot determine whether 197 evidence was properly excluded by the trial court without a tender of the excluded 1 evidence). 2 However, Father did testify why he believed a deviation from the guidelines 3 was warranted. Father asserted that: (1) it is more expensive to live in his city of 4 residence in South Carolina than it is to live in Roswell, New Mexico, where the 5 children and Mother reside; (2) Father n eeded “a break” on child support because he 6 had recently moved back to the United States from abroad; (3) the children are near 7 the age when they would no longer need ch ild care; and (4) Father would never be 8 able to pay back his arrearage. After c onsidering this testimony, the district court 9 determined that no deviation from the guidelin es was required. However, the district 10 court did order, to Father’s benefit, that Father wa s not required to begin the 11 retroactive support payments for six months (without interest accruing) and that the 12 remaining arrears were not required to be paid monthly, but instead would be paid 13 through tax intercept. Thus, c ontrary to Father’s contenti on, the district court did not 14 ignore Father’s circumstances in its ruli ng and we conclude there was no abuse of 15 discretion. 16 3. Abatement of Child Support for Summer Visitation 17 Father contends that he was unfairly denied his request for an abatement of 18 child support during future summer visitation. The district court is permitted, but not 198 required, to partially abate child support during the summer for visitations of one 1 month or longer. See§ 40-4-11.1(F)(1). Father’s and Mother’s mediated parenting 2 plan provides that the children will visit Father for three weeks during the summer of 3 2008 and for a full month in the summer of 2 009. Thus, Father was not eligible for 4 a partial abatement of child support until the summer of 2009 when the children were 5 scheduled to visit for a full month. Furthermore, while the district court decided not 6 to order an abatement at the time of the hearing in August 2007, it informed Father 7 that he could raise a motion for abatement of child support the following year. The 8 district court did not abus e its discretion in denying Father’s request for future 9 abatement of child support. 10 4. Work-related Child Care 11 Father argues for the first time on appealthat the district court erred by not 12 taking into consideration the potential tax benefit Mother may be receiving and, 13 accordingly, not reducing the $200 for child care. 14 At the hearing, Father did not raise the issue of reducing the amount of child 15 care because of Mother’s potential tax benef it. Father’s main statement about child 16 care during the hearing was to ask the distri ct court for permission to pay it directly. 17 After this request was denied, Father asked the district court if he could claim child 18 care on his taxes, because Father was under the misappreh ension that he was paying 199 the full $200 for child care, rather than his share in proportion to his income. Father 1 made no further statement regarding the child care tax benefit. 2 Because Father did not raise the issue of reducing the child care because of 3 Mother’s potential tax benefit at the hearing, we will not review this issue on appeal. 4 See Spectron Dev. Lab. v. Am. Hollow Boring Co. , 1997-NMCA-025, ¶ 32, 123 N.M. 5 170, 936 P.2d 852 (“[W]e review the case litigated below, not the case that is fleshed 6 out for the first time on appeal.”) (alteration in original) (internal quotation marks and 7 citation omitted). 8 5. Children Not Currently Receiving Child Care 9 Father alleges in his brief in chief thatthe children have not ever received the 10 child care from their uncle thatwas described to the district court by Mother. Because 11 Father did not raise this issue in the distri ct court, we will not review it on appeal. Id. 12 CONCLUSION 13 For the above reasons, we affirm the district court’s judgment. 14 IT IS SO ORDERED. 15

__________ ___________ ___________ 16 MICHAEL E. VIGIL, Judge 17 WE CONCUR: 18

________________________________ 1910 JAMES J. WECHSLER, Judge 1

________________________________ 2 JONATHAN B. SUTIN, Judge 3