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 Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 MARK MINTEER, 7 Petitioner-Appellee, 8 v. NO. 30,019 9 DIANE SUDLOW, 10 Respondent-Appellant 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Elizabeth E. Whitefield, District Judge 13 Sutin, Thayer & Browne, P.C. 14 Derek V. Larson 15 Kerry C. Kiernan 16 Albuquerque, NM 17 for Appellee 18
Diane J. Sudlow 19 Albuquerque, NM 20 Pro Se Appellant 21 MEMORANDUM OPINION 22 FRY, Chief Judge. 23 Mother appeals from the district court’s order on child support. We proposed 24 to affirm in a calendar notice, and Mother has responded with a memorandum in 252 opposition. We have duly considered Mothe r’s arguments, but we are not persuaded 1 by them. We affirm the district court’s decisions. 2 Mother filed a memorandum in opposition to our calendar notice on April 5, 3 2010. On April 8, 2010, Mother file d a motion to amend her memorandum in 4 opposition and an amended memorandum in opposition. Initially, we point out that 5 Mother’s amended memorandum in oppositi on was not timely under our rules, and 6 in any event, our appellate rules do not allow for the filing of an amended 7 memorandum in opposition. See Rule 12-210 NMRA. Futhermore, the additions 8 made to the memorandum in opposition refe r to authorities from other jurisdictions 9 or legal publications, but Mother fails to explain how these argum ents were preserved 10 in the district court. See Woolwine v. Furr’s, Inc. , 106 N.M. 492, 496, 745 P.2d 717, 11 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that 12 appellant fairly invoked a ruling of the trial court on the same grounds argued in the 13 appellate court.”); see also State v. Lopez , 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 14 P.3d 942 (filed 2007) (stating that the primary purposes for the requirement of 15 preservation are to specifically alert the trial court to claimed error so any mistake can 16 be corrected, to allow the opposing party an opportunity to respond to the claim of 17 error, and to create a record sufficient for re view by the appellate c ourt). As discussed 18 in our calendar notice and in this opinion, th e district court’s decisions regarding child 19 support and attorney fees were in complian ce with New Mexico law, and we therefore 20 find it unnecessary to look at law from other jurisdictions, particularly because there 21 is nothing to show that the arguments werepreserved for purposes of appeal. For 223 these reasons, we deny Mother’s motion to amend her memorandum in opposition and 1 we do not consider the arguments madein the amended memorandum in opposition. 2 3 Mother continues to argue that the district court erred in calculating Father’s 4 income for purposes of child support. Fath er is a shareholder in a Subchapter S 5 corporation. According to Mother, Fath er’s income should include shareholder 6 distributions, quarterly bonuses, income retained by the corporation, and 7 “unaccounted for” deposits. As discussed inour calendar notice, the district court 8 heard testimony regarding the monies that Mother contended should be considered as 9 income to Father, and that testimony was de termined to be credible. The testimony 10 showed that distribution from retained earnings are used for payment of a life 11 insurance policy on his partner’s life, as re quired by the shareholders’ agreement, and 12 Father was paid bonuses, included in his wa ges, for the cost of the life insurance 13 premiums. [RP 674] The testimony showed that shareholder distributions were for 14 payment of taxes on the corporation’s earni ngs. [RP 676] The testimony showed that 15 retaining earnings in the corporation is a prudent business decision where revenues 16 are inconsistent, and employees must be paid during low revenue months. [RP 676- 17 77] The testimony showed that the “unacc ounted for” deposits were from sales and 18 savings, and were used to finance the lawsuit. [RP 677] As explained in our calendar 19 notice, the district court found, for various reasons, that the monies should not be 20 included as income to Father. 214 Mother argues that the findings by the district court were not supported because 1 there was conflicting or inconsistent tes timony, there was manipulation of finances 2 and shielding of income, and there were certain statements that were not supported by 3 documentation or expert tes timony. We reiterate that child support calculations are 4 within the discretion of the district court, and we review the district court’s findings 5 on income to determine whether they are supported by substantial evidence. Quintana 6 v. Eddins , 2002-NMCA-008, ¶ 9, 131 N.M. 435, 38 P.3d 203 (filed 2001). 7 Application of the law to the facts is de novo. N.M. Right to Choose/NARAL v. 8 Johnson , 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450. In our calendar notice, 9 we conducted a detailed review of the findi ngs and conclusions in this case, and 10 proposed to conclude that the district c ourt did not commit error in its calculation of 11 the income of the parties. In her me morandum in opposition to our calendar notice, 12 Mother makes similar arguments to those made in the docketing statement. We do 13 not find Mother’s arguments in opposition to our proposed disposition to be 14 persuasive. See Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 15 P.2d 683 (“Our courts have repeatedly he ld that, in summary calendar cases, the 16 burden is on the party opposing the proposed disposition to clearly point out errors in 17 fact or law.”). We therefore affirm th e district court’s income determinations. 18 In her memorandum in opposition, Mother claims that Father uses the company 19 vehicle for personal use, while she must pay for her own vehicle and vehicle expenses, 20 and therefore, the company vehicle and cost s to run and maintain the company vehicle 21 should be considered income to Father. [MIO 4-5] Mother did not include this 225 argument in her docketing statement. Ther e was testimony that supported the district 1 court’s determination that the company vehi cle should not be imputed as income to 2 Father. The testimony showed that Father di d not have personal us e of the vehicle and 3 that, in four years, Father only occasionally used the vehicle to transport the parties’ 4 child. [MIO 4-5; RP 677-78] Therefore, to the extent that Mother is attempting to 5 amend her docketing statement to add this argument, we hold that the issue is not 6 viable and we deny her motion to amend the docketing statement. See State v. Moore , 7 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), superceded by rule on other 8 grounds as recognized in State v. Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. App. 9 1991) (stating that appellate c ourt will deny motions to amend that raise issues that are 10 not viable, even if they allege fundamental or jurisdictional error). 11 Mother continues to claim that it was an abuse of discretion for the district court 12 to order that each party pay “his or her respective attorneys fees and costs.” [RP 717] 13 See Monsanto v. Monsanto , 119 N.M. 678, 681, 894 P.2d 1034, 1037 (Ct. App. 1995) 14 (reviewing award of attorney fees for abuse of discretion). The order was based on 15 cross-motions by the parties and affidavits. As discussed in our calendar notice, the 16 district court considered the factors unde r Rule 1-127 NMRA. We noted that Mother 17 did not demonstrate error by the district c ourt and pointed out that the record showed 18 a number of show cause motions, and one order finding Mother in contempt. 19 In her memorandum in opposition, Mother continues to argue, as argued in her 20 motion or stated in her affidavit, that there is a disparity in the parties’ incomes and 21 that she has no assets to pay attorney fees . [RP 693; 699] Mother claims that Father 226 conferred with his attorney more than she conferred with her attorney, indicating that 1 Father is the more litigious party. [MIO 9-10] Mother also provides an explanation 2 for the reason she was held in contempt of court and states th at she does not believe 3 she was sanctioned for mi sunderstanding that she should provide Father with 4 documents that she alleges healready possessed. [MIO 8-9] As noted above, the 5 district court considered the factors under Rule 1-127 when decidi ng the attorney fees 6 issue. Mother’s arguments do not persuadeus that the district court abused its 7 discretion in awarding attorney fees to neither party. We affirm the district court’s 8 decision on attorney fees and costs. 9 Mother does not respond to our proposed disposition with regard to the tax 10 deduction. Frick v. Veazey , 116 N.M. 246, 247, 861 P.2d 287, 288 (Ct. App. 1993) 11 (“Failure to file a memorandum in opposition constitutes acceptance of the disposition 12 proposed in the calendar notice.”). We affirm on this issue. 13 CONCLUSION 14 For the reasons discussed in this opini on and in our calendar notice, we affirm 15 the decisions of the district court. 16 IT IS SO ORDERED. 17

18 CYNTHIA A. FRY, Chief Judge 19 WE CONCUR: 207 1 MICHAEL E. VIGIL, Judge 2

3 TIMOTHY L. GARCIA, Judge 4