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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 KATHERINE BALLARD,

3 Petitioner-Appellant,

4 v. NO. 33,617

5 TUXIE BALLARD,

6 Respondent-Appellee,

7 and

8 STATE OF NEW MEXICO ex rel. HUMAN SERVICES DEPARTMENT,

9 CHILD SUPPORT ENFORCEMENT DIVISION,

10 Intervenor-Appellee.

11 APPEAL FROM THE DISTRICT COURT OF UNION COUNTY

12 John M. Paternoster, District Judge

13 Kalm Law Firm, P.C.

14 Cory J. Kalm

15 Thomas L. Kalm

16 Albuquerque, NM

17 for Appellant

18 Tuxie Ballard

19 Paradise, TX
2

1 Pro Se Appellee

2 Larry Heyeck, Deputy Director of Legal Services

3 Santa Fe, NM

4 Hector H. Balderas, Attorney General

5 Lila Bird, Special Assistant Attorney General

6 Santa Fe, NM

7 for Intervenor-Appellee

8 MEMORANDUM OPINION

9 HANISEE, Judge.

10 {1} Petitioner Katherine Ballard appeals the district court’s denial of her request for

11 an upward adjustment of Respondent Tuxie Ballard’s child support obligation.

12 Petitioner argues the district court erroneously used Schedule B of the child support

13 guidelines set out in NMSA 1978, Section 40-4-11.1(K) (2008) to determine

14 Respondent’s current support obligation. Petitioner also appeals the district court’s

15 failure to include income from Respondent’s “side jobs” in its calculation of

16 Respondent’s child support obligation and its order granting Intervenor-Appellee State

17 of New Mexico Human Services Department, Child Support Enforcement Division

18 (HSD)’s motion to intervene. We affirm.

19 {2} Petitioner obtained a default judgment against Respondent on March 28, 2011.

20 In addition to dissolving their marriage, the default judgment awarded joint legal
3

1 custody of their two children (Children) to both Petitioner and Respondent, but gave

2 Petitioner primary physical custody. The default judgment set out a fairly detailed

3 schedule dividing periods of responsibility for Children over the year between

4 Petitioner and Respondent. It calculated Respondent’s child support obligation using

5 Worksheet A of Section 40-4-11.1(K). Under the default judgment, Respondent was

6 obliged to provide Children with health insurance and to pay Petitioner child support

7 in the amount of $771.12 per month.

8 {3} On December 19, 2012, HSD filed a motion to intervene and a separate motion

9 to modify downward the amount of child support payable by Respondent. Petitioner

10 opposed HSD’s motion to modify, arguing instead that the default judgment should

11 be modified to increase Respondent’s child support obligation. The district court

12 granted HSD’s motion to intervene and designated a special master to conduct a

13 hearing on HSD’s motion to modify.

14 {4} After the hearing, the special master recommended denying both HSD’s motion

15 to decrease and Petitioner’s motion to increase Respondent’s child support obligation.

16 The special master found that no downward modification of support was warranted

17 because: (1) there was no demonstration that the timesharing order was being strictly

18 adhered to by Respondent, such that it would be proper to lower the amount paid to

19 Petitioner; (2) Respondent would not qualify for a presumption of changed
4

1 circumstances if income from his “side jobs” was considered; and (3) the established

2 monthly support obligation fit a timesharing circumstance somewhere between

3 Worksheets A and B. Because the increase in support would not exceed twenty

4 percent of the current support obligation, no upward modification was recommended

5 by the special master. Petitioner filed objections to the special master’s

6 recommendation, which the district court overruled. Petitioner appeals the district

7 court’s orders granting HSD’s motion to intervene and denying Petitioner’s request

8 that the default judgment be modified to increase Respondent’s child support

9 obligation.

10 {5} In rejecting the competing claims for modification of Respondent’s child

11 support obligation, and as part of its application of the child support guidelines set

12 forth separately in Section 40-4-11.1, the district court calculated the amount of time

13 that Children spent with Respondent under the default judgment’s custody

14 arrangement. The district court concluded that the default judgment set out a “shared

15 responsibility” custody arrangement, and therefore that Worksheet B (and not

16 Worksheet A, which the default judgment had used) must be used to determine

17 Respondent’s current support obligation. The district court then determined

18 Petitioner’s and Respondent’s monthly incomes, expenditures on health insurance and

19 work-related childcare, and other facts relevant to a calculation of income under the
5

1 guidelines. It too concluded that Respondent’s current guidelines obligation did not

2 exceed his obligation under the default judgment by more than twenty percent, so

3 NMSA 1978, Section 40-4-11.4 (1991), Subsection (A)’s presumption of changed

4 circumstances did not apply. Consequently, no change to Respondent’s child support

5 obligation was effectuated.

6 {6} Petitioner’s first argument on appeal is that the district court was precluded by

7 res judicata from reassessing the applicable worksheet because the default judgment

8 itself states that “Worksheet A is appropriately utilized for calculating support.” We

9 do not agree. To be sure, New Mexico courts have sometimes used the doctrine of res

10 judicata to reject efforts to relitigate issues decided by a divorce decree. But New

11 Mexico courts have used res judicata in this context only when a party seeks to

12 relitigate factual disputes that were decided in a previous decree, not factual disputes

13 concerning changes subsequent to the entry of the most recent decree. See, e.g., Fox

14 v. Doak, 1968-NMSC-031, ¶ 12, 78 N.M. 743, 438 P.2d 153 (holding that a

15 modification of child custody order was precluded by res judicata when the underlying

16 finding of changed circumstances was based on facts in existence prior to entry of

17 previous order).

18 {7} Here, Petitioner argues that it was improper for the district court to recalculate

19 the custody arrangement set out in the default judgment in order to determine whether
6

1 Respondent’s support obligation had increased by more than twenty percent after

2 entry of the default judgment. But as we have noted above, the cases that have applied

3 res judicata in the context of child custody and support have only done so when a

4 party argues changed circumstances based on facts in existence prior to the entry of

5 the most recent decree. Extending res judicata to preclude litigation of facts

6 subsequent to the most recent judgment would be contrary to the plain text of Section

7 40-4-11.4(A), which provides for modification of a child support obligation “upon a

8 showing of material and substantial changes in circumstances subsequent to the

9 adjudication of the pre-existing order.” (Emphasis added.) So we instead assess

10 whether the district court’s use of Worksheet B in its “application of the child support

11 guidelines” under Section 40-4-11.4(A) was supported by substantial evidence. See

12 Thompson v. Dehne, 2009-NMCA-120, ¶ 8, 147 N.M. 283, 220 P.3d 1132 (“The

13 setting of child support is left to the sound discretion of the [district] court as long as

14 that discretion is exercised in accordance with the child support guidelines [and we]

15 review the [district] court’s findings of fact to determine if there is substantial

16 evidence to support the determinations.”) (internal quotation marks and citations

17 omitted). We conclude that it was.

18 {8} NMSA 1978, Section 40-4-1 (1973) allows either party to a marriage to petition

19 a district court to dissolve the marriage. When the district court enters a final judgment
7

1 dissolving the marriage, it “may make such an order for the . . . maintenance . . . of the

2 [parties’] minor children . . . as may seem just and proper.” NMSA 1978, § 40-4-

3 7(B)(4) (1997). As stated, maintenance of the parties’ minor children is determined

4 by reference to the child support guidelines in Section 40-4-11.1. See § 40-4-11.1(A)

5 (“In any action to establish or modify child support, the child support guidelines as set

6 forth in this section shall be applied to determine the child support due and shall be

7 a rebuttable presumption for the amount of such child support.”); see also Leeder v.

8 Leeder, 1994-NMCA-105, ¶ 6, 118 N.M. 603, 884 P.2d 494 (stating that a court may

9 deviate from the guidelines calculation of child support “only when the children’s

10 needs for care, maintenance, and education, in light of the parents’ financial resources,

11 justify a departure”).

12 {9} “The basic child support obligation shall be calculated based on the combined

13 income of both parents and shall be paid by them proportionately pursuant to

14 Subsection K of [Section 40-4-11.1].” Section 40-4-11.1(E). Subsection K of Section

15 40-4-11.1 provides a “basic child support schedule” that fixes each parent’s child

16 support obligation based on the parents’ combined income and the number of children

17 they have. This number is then “adjusted” upward or downward using the physical

18 custody arrangement set out in the court’s most recent child custody adjudication.

19 Section 40-4-11.1(F). 
8

1 {10} The physical custody adjustment is made using one of two worksheets set out

2 in Subsection K: Worksheet A or Worksheet B. The applicable worksheet is

3 determined by the type of custody arrangement in effect: if the custody arrangement

4 has the children spending less than thirty-five percent of the time with one parent, then

5 Worksheet A applies; if both parents have the children for more than thirty-five

6 percent of the time, Worksheet B applies. Section 40-4-11.1(D), (F); see also Erickson

7 v. Erickson, 1999-NMCA-056, ¶ 3, 127 N.M. 140, 978 P.2d 347.

8 {11} The district court may modify an existing child support obligation when a

9 parent demonstrates “material and substantial changes in circumstances subsequent

10 to the adjudication of the pre-existing order.” Section 40-4-11.4(A). Although Section

11 40-4-11.4 does not specifically define “material and substantial changes in

12 circumstances[,]” it does provide for a presumption of material and substantial

13 changes in circumstances when “application of the child support guidelines in Section

14 40-4-11.1 . . . would result in a deviation upward or downward of more than twenty

15 percent of the existing child support obligation and the petition for modification is

16 filed more than one year after the filing of the pre-existing order.” Section 40-4-

17 11.4(A).

18 {12} To reiterate, Petitioner contends that because the default judgment expressly

19 states that Worksheet A applies to determine Respondent’s child support obligation,
9

1 the district court erred by using Worksheet B to determine Respondent’s current

2 support obligation and whether Section 40-4-11.4’s presumption of changed

3 circumstances applies. But the presumption of changed circumstances is determined

4 by “application of the child support guidelines in Section 40-4-11.1[,]” not application

5 of the Worksheet set out in the divorce decree. Section 40-4-11.4(A). As we have

6 explained, applying the guidelines requires the district court to make a physical

7 custody adjustment, and making the physical custody adjustment requires the district

8 court to determine each parent’s periods of responsibility under the existing custody

9 order. See NMSA 1978, § 40-4-9.1(F) (1999) (“When joint custody is awarded, the

10 court shall approve a parenting plan for the implementation of the prospective custody

11 arrangement prior to the award of joint custody. The parenting plan shall include a

12 division of a child’s time and care into periods of responsibility for each parent.”)

13 That is what the district court did in this case, and the fact that the analysis employed

14 by the district court followed a motion to modify a default judgment is of no moment

15 to the district court’s application of the applicable statutes.

16 We conclude that the district court did not err in applying the child support guidelines

17 using Worksheet B.

18 {13} Petitioner next argues that the district court should have included Respondent’s

19 $400 monthly income from “side jobs” in its determination of whether a presumption
10

1 of changed circumstances justified an upward modification of Respondent’s support

2 obligation. But as Petitioner acknowledges, the only way that the inclusion of this

3 income in a support calculation would result in a twenty percent increase in

4 Respondent’s support obligation would be if the district court used Worksheet A to

5 calculate Respondent’s support obligation. Having rejected Petitioner’s arguments on

6 this threshold issue, there is no basis to reverse on the second issue Petitioner raises.

7 {14} Lastly, Petitioner argues that HSD does not have statutory authority to intervene

8 and seek to modify the child support obligations of a non-custodial parent. But the

9 district court denied HSD’s motion to modify Respondent’s support obligation, and

10 HSD has not appealed that ruling. Accordingly, there is no basis to consider this

11 argument. See In re Estate of Heeter, 1992-NMCA-032, ¶ 23, 113 N.M. 691, 831 P.2d

12 990 (“On appeal, error will not be corrected if it will not change the result.”).

13

14 {15} The district court is affirmed.

15 {16} IT IS SO ORDERED.

16 _________________________________

17 J. MILES HANISEE, Judge 

18 WE CONCUR:

19 _________________________________

20 MICHAEL D. BUSTAMANTE, Judge
11

1 _________________________________

2 LINDA M. VANZI, Judge