Tedford v. Gregory

206 does not testified of facts. The record indicate

increasing. A real estate broker unfairly partial- proceeded the trial court properties in this area had increased motion ly. There thus no basis for the of 20% 1993-95. was value at the rate recuse, ap- of the motion was appreciation would to denial The broker believed per year. propriate. at minimum rate of 10% continue a Thus, supported the trial court’s the evidence time 10% interest from the

award of annual III. CONCLUSION following years until ten the claim in 1989 jurisdic- The court did not lose 31. trial trial date. the a warranty claims as tion over breach between Plaintiff and result of settlement trial 29. that the Grantors contend ejected half was from one Grantee. Grantee requested refusing erred in certain court conveyed by warranty property him Requested find findings and conclusions. ejectment That constituted a breach deed. those ings and conclusions that conflict with warranty. refusal to defend Grantors’ by by supported court found the trial property a breach of title to likewise properly are refused. substantial evidence pre- warranty. Grantee’s settlement did not Rothwell, 166, 168, Thigpen 81 v. N.M. See defending the vent them from title. Grantee (1970); v. P.2d Enters. 464 898 Den-Gar damages as a of that was entitled to result Romero, 425, 430, P.2d supported The amount breach. evidence Here, requested (Ct.App.1980). Finally, the trial awarded. court did refused findings and conclusions that were against Grantors. The demonstrate bias findings and with the trial court’s conflicted judgment is affirmed. earlier, find As we stated those conclusions. ings supported were substantial evidence. IT IS 32. SO ORDERED. not error to refuse Grantors’ It therefore requested findings and conclusions. FLORES, JJ., concur. DONNELLY and

F. Recusal required The trial court is

30. hearing case when

to recuse itself preside impartial fair and man cannot 1998-NMCA-067 Cherryhomes, 114 N.M. ner. See State v. P.2d 540 495, 500, (Ct.App.1992). TEDFORD, Petitioner-Appellee the trial court ex Grantors contend Cross-Appellant, of the pressed its on merits decision hearing on any cross-claim before evidence v. a bias They matter. contend this shows GREGORY, Wayne Respondent- Donald predisposition part Appellant Cross-Appellee, at those court. We have reviewed record were

places where Grantors contend there expressions. the state such We do not view Harvey TEDFORD, Third-Party evidencing made the trial court as ments Defendant-Appellee Rather, predisposition in this case. Cross-Appellant. noting trial court was that the issues between No. 18221. and that Grantee Grantors still remained ruling the court reserve on them. would Appeals Court New Mexico. opinion law state its did 26, 1998. March concerning warranty waiver of breach of settling. of law about This was issue 6,May Certiorari Denied opin express the trial court could its which required There no facts for such ion. were expression not view such an

decision. do preconceived ruling the benefit

as a without Wayne Gregory, alleged

Donald father. Jeanne’s suit sought establish paternity and to recover against Gregory. Gregory did not admit that he was the natural third-party and filed a claim (Tedford), Harvey Tedford asserting that was the Tedford natural father Jeanne. filed a Grego- counterclaim ry and a cross-claim Jeanne assert- ing in the event Jeanne established her Gregory, claim against should be reimbursed for the amount of support expended child and other he monies on Jeanne’s behalf. Gregory appeal, raises ten issues on

{2} which consolidate as we and discuss follows: (1) whether the trial court in determin- erred ing that he was the natural father Jeanne awarding sup- and in her retroactive child (2) $50,000 port; whether the award as Gregory to Jeanne from evidence; (3) supported by substantial and recovering whether Tedford is from barred Grego- reimbursement for child ry principles estoppel, under of collateral waiver, and latches. presents cross-appeal Jeanne’s three

{3} (1) issues: whether the trial court erred in calculating sup- its award of retroactive child (2) port; whether erred in refusing award her fees reasonable and (3) costs; and whether the trial court erred refusing impose in Greg- sanctions ory. Quintero, P.C., Quintero, H.R. Robinson & City, Appellee Cross-Appel-

Silver for and cross-appeal Tedford’s asserts that {4} (1) lant. only awarding the trial court erred in him portion expended the monies he on Jr., Martin, W.T. Law Offices of Mar- W.T. refusing behalf and award tin, Jr., Carlsbad, P.A., Appellant for him full reimbursement for all monies ex- Cross-Appellee. him, pended refusing to award Carlsbad, Stephen Boatwright, E. him attorney reasonable fees and costs Third-Party Appellee Cross-Appellant. against Gregory. part affirm in reverse in OPINION part. DONNELLY, Judge. AND POSTURE FACTS PROCEDURAL Jeanne, multi-appeals September The this case arise who was born on February brought out of a suit filed suit Jeanne Tedford on (Jeanne) Act, Parentage Gregory paterni- seeking under Uniform to establish (1986, ty support. §§ NMSA 40-11-1 to -23 as recover and to 1997) (UPA), through against Gregory having amended admitted a sexual relation- Jeanne, mother, Gregory, performed tests Nina Tedford to be ship Jeanne’s with Tedford, (Nina) indicated during marriage to but and Nina. The test results her Gregory father. At the was probability that he was Jeanne’s 99.9994% denied birth, Tedford was married biological time of Jeanne’s The test results father Jeanne. supported both being biological to Nina. Tedford Tedford as excluded after she minority became stipulated probability Gregory father. adult, believing his child. Tedford her to be paternity, and thereafter filed a document children born dur- supported also three other Ac- Harvey Tedford’s entitled “Consent before, marriage At no ing his to Nina. time Paternity.” knowledgment of birth, did ever during or after Jeanne’s Nina trial, the conclusion At the his natu- inform Tedford that Jeanne to be Jeanne’s court declared ral child. past awarded when Jeanne November $50,000, plus the amount of old, months Tedford filed for di- fourteen interest. trial court also post-judgment The petition alleged vorce Nina. $40,900.07, in- plus post-judgment awarded marriage, four children were born terest, of Ted- favor including Jeanne. Nina and Tedford execut- ford, reimbursement for some of as property agreement in which ed a settlement support paid by Tedford. The trial court children, acknowledged four they the attor- parties all to bear their own ordered Jeanne, including of mar- were born their ney’s costs. fees and property agreement The settlement riage. respective DISCUSSION prop- Nina’s Tedford’s settled and custody erty rights provided for also the Appeal I. Gregory’s support of minor children. Under the granted custody of agreement, the Nina was A. Challenges to Jeanne’s Claims Jeanne, required was to and Tedford Gregory’s first We address {11} support for in the amount of child Jeanne holding claim that the trial court erred per month. The divorce decree includ- $100 adult, an of action has cause was born of the ed a that Jeanne to paternity him to establish incorporated the marriage property and also support recover child under New retroactive agreement. pater- issues The of settlement citing Gregory, of the UPA. Mexico’sversion nity obligation provide of Tedford’s P.J.W., Paternity In re 150 Wis.2d of support for not in question were Jeanne (App.1989),argues that noth N.W.2d 289 proceeding. appeal No was in the divorce ing in act an adult to the latter authorizes from the taken divorce decree. alleged pursue cause of action an 20, 1994, when On December Jeanne support. for retroactive child old, twenty years Eddy filed Nina suit disagree. County against Gregory District Court paternity and requesting establish Jeanne’s In re Gregory’s We find reliance support. of an award retroactive Paternity misplaced. Wis P.J.W. be of party Greg- was not a to that action. UPA, adopted consin has not the and Wis summary judgment ory filed a motion for limita appears consin to have no statute of collaterally asserting estopped that Nina was 40-ll-23(A) comparable tions to Section judgment by the in her divorce action (1989) of in this version contained state’s denying that father. Instead, Court of such act. Wisconsin judg- granted summary The district P.J.W., Appeals, Paternity con in In re of ment and dismissed Nina’s suit. pro strued a much more restrictive statute sup Thereafter, past February viding liability that a father’s 1995 Jeanne port a claim for petition Gregory’s paterni- of a child is limited to filed a establish period following commence ty to obtain for the Id., 290- ment at of under the UPA. of such action. N.W.2d date her birth genetic trial court blood and The ordered paternity present family, An action to establish outside the trial court recover stability present should consider the

putative expressly environment, natural father is autho home the existence or lack provisions rized unit, of the UPA. See family an ongoing thereof of the extent Montano, 403-04, Padilla v. uncertainty parentage which of already (Ct.App.1993). 862 P.2d 1262-63 Section mind, any exists in the child’s other -11-7(A) provides “[a]ny 40 interest factors which be in assessing relevant party may an bring purpose ed action for the potential benefit or detriment determining the existence nonexistence child.”). parent relationship.” and child Simi According to the best-inter 40-11-8(A) larly, permits Section an action to approach, est-of-the-ehild the trial court does paternity determine to be combined with not automatically that a paternity assume 40-11-23(A) for support. action Section determination is in the best interest of the (1989) of provides the UPA action “[a]n Id. young child. Where a child is and has parent relationship to determine a and child already established a emotional close bond under brought [UPA] shall no later father, presumed with the and where the years than three after child has reached court determines that would be detri age majority.” age majority The mental compromise child’s welfare to eighteen years age. New Mexico is continuity of that established relation (A) (1973). 1978, § NMSA 28-6-1 ship, the court will not determine brought twenty this action when she was solely biological relationship on the basis of a old, years years two and within after she putative between child and the father. age majority. twenty- reached the Id.; Ross, Marriage also see In re one-year statute of limitations of 40- Section (as Kan. 338-39 11-23(A) applies paternity to both claims and 12, 1990). Jan. modified Padilla, past support. claims for 116 child Although pres 401-02, Tedford’s role and N.M. at 862 P.2d at 1260-61. There fore, figure ence as a father in timely her Jeanne’s life makes action the was filed under Padilla, UPA, this adult, case different from in her status and there as an clearly impression fore raises an party” is issue of first in “interested entitled to Mexico, New we proceedings initiate do not believe that the under the UPA. best- applicable interest-of-the-child is in standard Best Interests the Child paternity this In case. actions wherein the has ap best-interest-of-the-ehild test been argues also that the plied, invariably child is a court, the minor. Fur in determining trial he was whether thermore, upon by in the Grego eases relied father of Jeanne and he whether ry, proceedings initiated, paternity were required should be child child, putative father, not support, but failed to consider the best interests stranger who in most advancing of the child. In instances was to the argument, this child, by parent, sought relies in or on cases which courts have who establish paternity doing paternity sup declined to or disestablish in a divorce determine when See, W.C., contrary port proceeding. would be e.g., so the child’s best inter In Interest “Adam”, A.M.K., Paternity 719, ests. See In re 273 907 722 (Colo.Ct.App. P.2d of (1995) 351, 207, 1995) (probabil father; Mont. 903 211 (paternity by biological P.2d action ity putative that biological father was parent court disallowed claim to establish important controlling relationship, holding but not consider and child that continua action, in paternity relationship ation but best rather tion of child and moth between proper ap interests); interest of child was standard er’s was in best husband child’s D.B.S., M.S., ply pater By in determining whether to declare Through P.S. v. 20 Carlson, (action nity); 438, 875, Kan.App.2d McDaniels v. 108 Wash.2d 883-84 banc) (“In 299, (en 254, 738 by putative paternity P.2d 262 father to establish determining it marriage whether best child’s child born mother’s to an man; paternity interests to allow a action one other court to order refused blood 212 finding that existing of which included the seven-year-old both child’s

tests where stable, marriage, barred healthy was born of relationships were action, aff'd, paternity this parentage), bringing with from was unconcerned child (1995); privity re 396, was in with Kan. 903 P.2d 1345 and that Jeanne 258 “Adam”, (pater proceeding. Although Paternity 903 P.2d at the divorce mother father; court held nity by putative preclusion action and issue the doctrines claim judg best to declare apply was not child’s interests relations generally to domestic father, where, among putative ments, paternity Cherpelis Cherpelis, 1996-NMCA- ¶ things, putative father had no contact other P.2d personal no had demonstrated with that properly court found these doc SM, child); Mak-M v. commitment to against Greg suit trines did bar Jeanne’s (action by mother (Wyo.1993) P.2d 66-67 Naylor, ory. In Callison v. paternity; court ex-husband’s 676-77, to disestablish (Ct.App.1989), 915-16 P.2d presump sustaining that ex-husband’s held held a former this Court that husband parenthood promoted best interests tive collaterally estopped bringing pro only six-years-old, ex- child where child was ceeding question paternity of his only father ever husband was child had daughter an earlier divorce decree where known). that the was born included However, marriage. holding conclude the best-in husband, was limited to the former Callison applicable in a standard is terest-of-the-child specifically its excluded child from action application: proceed involved only when the child in such the event that in the future [the child] [I]n developed has a close ing is a minor and bring wish an action should par presumed to the emotional attachment [UPA], party we doubt third under recognition so of another ents judgment es- that a founded collateral parent emotionally be or otherwise would preclude toppel appeal in this would [the damaging child. facts are Those doing so. an action would child] Such present in this case. parent- brought determine whether a Moreover, the could trial court relationship child] exists between [the Gregory, who properly conclude denied party, third an issue has not and the support, paternity paying seeks to avoid and litigated pro- in either the divorce been party the best- proper is not advance ceeding or in this ease. We believe theory. In re Mar interest-of-the-child See estoppel of collateral would be doctrine Thier, 940, Wash.App. 841 P.2d riage 67 of inapplicable under such circumstances. (1992) (in 794, showing 798 absence of (citation omitted). 677, 777 at 916 Id. at P.2d is in best in paternity determination child’s terests, best-interest-of-child standard cannot in- the distinct interests Because of than volved, be invoked on behalf of someone other generally privity courts refuse find P.S., child); By Through see D.B.S. and also bringing paternity proceed- a child between (court at factual 887-88 to review parent pro- or ing and a in a divorce other perspective from child’s and to circumstances ceeding adjudication of involving the child’s way of determine best interest such County See Shasta legitimacy. v. Caruth of opportunities ers, 1838, 18, will child’s for maximize Cal.App.4th Cal.Rptr.2d 38 31 life, approach (1995); M.C., if such is detri successful even People Interest 895 20 In of parents). 1098, mental (Colo.Ct.App.1994),aff'd, 1101 914 P.2d (Colo.1996) (en banc); By 355 P.2d Simcox Estoppel

Collateral Simcox, Through Ill.App.3d Dear v. 175 1032, 473, 915, 124 529 1034 Gregory additionally argues Ill.Dec. N.E.2d (1988), part part, 131 by and vacated in that Jeanne’s action is barred the doctrine aff'd 491, 664, 546 609 estoppel. specifically, he Ill.2d 137 Ill.Dec. N.E.2d of collateral More A.J.P., (1989); By v. 672 Nina’s and divorce J.W.L. J.L.M. contends that Tedford’s 966, (Ind.Ct.App.1996); v. agreement, N.E.2d 967 J.C. property decree and settlement

213 E.M., 446, 429, Mass.App.Ct. minor, 36 632 her biological N.E.2d father. As a she was (1994); position 430 ex not in a Baker rel. v. to take official action of Williams her Williams, 249, (Miss.1987); own question 503 254 to resolve the of her paternity. So.2d J.G., 423, N.J.Super. § N.M. v. See 40-11-9 minor to (requiring repre- 255 605 A.2d 709, litem); 712 (Ct.App.Div.1992); By guardian guardian sented Settle .or ad 767, Through Beasley, 616, Sparks, Sullivan v. 309 see also 114 at N.C. N.M. 845 P.2d at (mother 288, (1983); 861 proper party 308 S.E.2d 290 Shelton was repre- v. An not 859, Infant, 12 sent Va.App. paternity proceeding 406 S.E.2d child in 423 under UPA). (1991); SDM, Paternity In reasonably re 882 The trial court could P.2d de- of that, (Wyo.1994); Sparks 1223 see By upon also termine based circumstances here, Through Sparks, existing Haley inequitable it was not for (Ct.App.1992) Jeanne (holding emancipated P.2d to wait until she was proper party acting that mother before repre seeking was not on her own counsel sent in paternity proceeding filing this her because of action on own behalf. potential interest); Even conflict of Uniform had Jeanne informed Par not Tedford of 9, Comment, entage § against Gregory, Act 9B suit U.L.A. 312 Tedford (1987) (“The may repre joined indispensable mother or father was later party not as an action, sent the child in since herein at of their inter the direction the trial court. child.”). ests conflict those of with Recovery Claims Double generally M. Zupanee, See Donald Annota of Sufficiency tion, Evidence Effect, Subsequent Proceedings,

Paternity Findings Implications in Di parties stipulated The vorce or Support Annulment Decree or In $82,873.65 Tedford contributed total to Thereto, Custody Order Made Incidental ward the care and of Jeanne. The (1977). A.L.R.3d paid court found that Tedford sum $45,127.31 for Jeanne’s and main party Because Jeanne not a tenance between the date his divorce from the divorce and was proceeding privity mother November and the mother, with her conclude that we her claims age time eighteen. reached against Gregory are barred the doc- balance, $37,746.34, paid The to Jeanne trine of estoppel. collateral age primarily after she eighteen reached for college expenses. trial court awarded Equitable Defenses $40,900.07 as reimbursement also asserts that expended money sup most of the for the he ordering trial court him erred in port following his maintenance divorce ig to Jeanne and age majori until attained defenses, equitable nored his alleging that ty. The trial court also awarded the sum of permitted Jeanne should not be to recover $50,000 directly to Jeanne as retroactive support against retroactive child him because support. child she came before the trial court with unclean Gregory argues hands. that she Gregory contends failed to that because disclose to supported by during Tedford information she had re Jeanne was Tedford her concerning paternity, minority, unjustly ceived from Nina her she would be if enriched that promptly she failed to inform she were now to retroactive Tedford recover child Gregory, support her Gregory. lawsuit and that she from The Uniform Par Act, accept however, support entage continued to seek mandates from retroactive during pendency support pursuant support the her suit child to child 40-11-15(C) upon Gregory. guidelines. (requiring our Based review of Section record, from support we do not believe the trial court calculation of the date of 1978, in rejecting pursuant erred defense. Jeanne the child’s birth to this did NMSA (1988, §§ discover the truth about her 40-4-11 to as -11.3 amended 1995)). Mexico, years until through legiti she was old. At that In both sixteen New time, illegitimate Nina that Tedford mate and are to told Jeanne was not children entitled

214 IRA, $49,000 promissory Stringer equity in various parents.

support their See Dudoich, 98, 99, personal his Additional 583 463 notes or residence. P.2d through (1978). Thus, that from 1974 duty support his evidence indicated Gregory’s 1992, Gregory’s reported or taxable FICA money she by any is daughter unaffected $31,305.81 security averaged per wages social may have from other sources. received year. support award authorized child Jeanne’s not constitute double statute does of retro- requested Jeanne award Indeed, recovery. Gregory no effort made on support child based two alternative active Jeanne, financially support and if we were to $82,006.56 based on calculations: The sum any award amount deduct Jeanne’s figure consid- average income that a lower support, to her Tedford contributed wages only reported Gregory’s ered FICA in a participating for

would be rewarded $106,- period, for the relevant the sum failing support his constructive fraud and 254.72, higher which was based on a amount Salzwedel, Mougey v. 401 daughter. See consid- average figure that took into income (N.D.1987) (fact step- N.W.2d re- evidence of additional income eration legal parent provided support does not affect during period of ceived imposed upon parent obligation support re- minority. The child child). support his her using the quested by computed Jeanne support set in Section guidelines child forth if Gregory asserts that even 40-4-11.1. the trial this Court affirms court’s nev we reviewed trial that he is natural father of Leeder ertheless, calculating increasing a husband’s court erred in court’s order former support cal- support pur payments. The trial court the amount retroactive child owing Relying in husband’s portedly him. culated amount of former to Jeanne Leeder, sup- upon support obligation by applying the child part Leeder v. Leeder, (Ct.App.1994), port guidelines in effect. argues P.2d 494 he then appeal, support guidelines apply N.M. at 884 P.2d at 496. On the child do not case, argued erred in any and that award husband this support deviating guidelines from the to Jeanne should not exceed downward actually presented he that his the amounts shown to have been because had evidence expenditures support- expended by supporting Tedford in former wife’s actual Nina and minority. disagree. ing were less than the child We the children Jeanne support Id. at P.2d at is entitled to an award of retroactive ordered. rejected Gregory’s argument financial this and affirmed based on application guidelines, not- and enhanced income. trial court’s status support “guidelines'are not ing that the child trial, At for her claim parents what the have in intended reflect support, presented maintenance, care, spending for the fact been income assets over Gregory’s evidence children},] their [but] and education of Math- twenty-year period from of her the date er, they what presumptive figure sat a September to the trial birth Apply- parents spending.” should be Id. that, since The evidence indicated date. herein, precedent above facts ing the 1974, Gregory a businessman in Carls- properly the trial court could award retroac- bad, New also showed Mexico. evidence tive child to Jeanne in excess of trial, Gregory that from 1974 to the date of paid actually by Tedford and Nina. ranch, assets, including increased his a had land, in- be apartment complex, support child an investment Retroactive terests, restaurant, $49,000 in a 40- paternity a a IRA and ne- awarded action. Section 11-15(0 $140,000. specifies of of the method for gotiable securities in excess the UPA addition, 1995, Grego- calculating support. child This that in retroactive Jeanne showed $853,045 provides, applicable part, in personal holdings had a of section a ry’s value estate, determining an to be the judgment marketable not individual in securities real apartment complex holdings, “may his father a child direct including his of expenses pay unjust father to the reasonable of the 30.The finds it Court would be inappropriate require pregnancy, mother’s birth confinement. calculation support support court order under the shall child [also] Statutory due to the factual Guidelines sit- retroactive to the of the child’s birth date uation in this matter. pursuant provisions to the of Sections 40-4- through NMSA 1978.” 40-4-11.3 The The trial court also awarded Tedford the sum latter sections refer to the method for calcu- $40,900.07 on his claim reimbursement lating support child on evidence based relat- support paid child for Jeanne. ing monthly parents, income of the argues that Jeanne children, number and other relevant fac- present failed to evidence which the tors. trial court could determine the amount of which support child was reason upon In a related attack ably necessary support for her during her support amount of retroactive child awarded minority. disagree. presented We argues also Gregory’s pe evidence of income $50,000 Jeanne, plus award of post-judg upon riod of her minority. Based this evi interest, support, ment in back child is not dence, reasonably the trial could fix supported by the evidence and monthly amount of support. reasonable findings. court’s The trial court’s decision In determining the amount of retroactive includes, part, in following findings: support be awarded a 25. birth in Since Jeanne’s Don- proceeding, the court should first determine Wayne Gregory ald has been a self-em- both the mother’s father’s income Carlsbad, ployed businessman New during applicable periods. time Such Mexico. findings applying any should be made before Trial, 26. From 1974 to the time of deviation support from the standard child Wayne Gregory Donald has increased his guidelines. Taylor ex rel. See State v. Dor assets, ranch, land, apart- which include sey, Wash.App. P.2d interests, complex, ment investment res- (1996). taurant, $49,000.00 IRA negotiable Gregory, with agree how $140,000.00. securities excess of Donald ever, that the trial court’s decision fails to Wayne Gregory’s personal holdings have a $50,000 explain how it calculated the award $853,045.00 1995 value marketable requested made in favor of Jeanne. including securities and real estate his support $82,- in the alternative amounts $49,000.00 apartment holdings, complex his $106,254.72. 006.56 and Both amounts were IRA, equity promissory in various notes or support guidelines, calculated under the child personal his residence. using average figures different income attrib through 27. From 1974 Donald Gregory during period uted to Wayne Gregory’s reported wages FICA minority. provisions Under $31,305.81 averaged year. per 40-4-11(A), Section the trial court was re The Court finds Jeanne Ted- quired to make a determination of the ford is entitled to recover retroactive child support presumed paid amount of to be Wayne support Gregory, from Donald who guidelines accordance with the and to enter a biological the Court finds is her Although of that amount. it is clear failed, neglected pay who refused that the trial court from the child deviated any support permitted Harvey Ted- support guidelines, the reason for the devia ford to to one not his explained. tion was The trial court made child. only pursuant general finding to NMSA Tedford, finds, 29. Jeanne the Court Section 40-4-11.2 that “it would provided unjust inappropriate require has than been with more rea- Tedford, Harvey sonable who calculation of the retroactive child by Statutory has also fur- under the Guidelines due to the assisted Jeanne Tedford nishing factual in matter.” college her a education. situation this minority, specific find- to enter Thus, trial of Jeanne’s that the we conclude (1) 40-4- with Sections departing ings from the child in accordance in court erred: 11.1(A) findings 40- and required Section -11.2. The amended support guidelines as 11-15(0) en determining support why without should detail conclusions first the finding of the amount due under tering a amount would be guidelines calculated on the (2) clearly indicate failing in to guidelines; why “unjust inappropriate,” a deviation $50,000 in favor award how it determined ap- support guidelines should from the child Jeanne; failing specify in calculating for ply, method utilized and the in devi for the trial court’s decision reasons award. such support guidelines. See ating from the child (Colo.Ct. D.R.V., 885 P.2d 353-54 In re Related to Cross- B. Issues Tedford’s (where appellate court could App.1994) Claims determined whether trial court had conclude Estoppel Collateral amount, the extent of the deviation guideline therefor, trial court abused the reasons Gregory also contends guidelines, deviating from its discretion him for reim Tedford’s counterclaim for further find the case was remanded support by the of child is barred bursement parties ings allow this court and “that estoppel under this of collateral doctrine deviation”); Dor the reasons for the discern Callison, decision Court’s sey, (requiring at 778 an award 914 P.2d In agree. 913. We Callison 777 P.2d support include written factual find back post-divorce action brought evidence, including rea ings supported seeking to disestab the mother and the child guidelines); see also for deviation sons Callison, as lish under the UPA. 282, 284, Michelson, N.M. Michelson case, previously father had filed in this (1976) (where there petition alleging for that the child divorce court, findings adopted trial as to doubt marriage of the question during was born appel precluded meaningful doubt and such action, here, as the mother parties. In that review, the case will be remanded late entered into a settlement and father had conclusions). findings and additional establishing the child agreement Accordingly, we reverse the 675, 777 paid by father. Id. at P.2d at be $50,000 to which awarded court’s decision proceedings. for further Jeanne and remand claim for contends his remand, the trial court should Following Gregory is authorized reimbursement findings of fact and conclu- adopt amended law. He fur- and common under UPA should de- of law. Those amendments sions sup- though that even the child argues ther support it tail the amount of parent support port provisions require that be re- should has determined § only through minority, see 40-4-11 a child September pay from quired to -11.3, ap- principles should be equitable birthday, in accordance eighteenth require plied in this case to reimbursement support guidelines and the with the child paid by full to him for the amount Padilla, N.M. set forth standards $38,- including the him on behalf of Spingola, Spingola v. 862 P.2d 1257 and paid post-minority (1978), 407.98 toward Jeanne’s and should 580 P.2d 958 disagree. college living expenses. We guideline specific finding include findings and conclu- amount. The amended correctly points out any award to should also include sions adjudicates the that where a divorce decree Gregory, includ- past support child, children, have been issue of what required ing the amount he should marriage, unless such determina born of the support guidelines. applicable under timely challenged set has been tion the trial court determines In the event aside, privity parties or those in thereto the calculation of retroactive child relitigating such issue. The are barred from applicable should not be based on Court observed: period Callison support guidelines effect paternity Where has been in Gregory’s established or Jeanne’s other defenses proceeding, alleged a divorce an father is Tedford.

barred under the doctrine of collateral es Although equitable considerations in {40} toppel questioning paternity from later cases, individual where the doctrine of collat- proceeding under the In re [UPA]. See estoppel eral has not been asserted or is Gilbraith, 127, 32 Ohio St.3d 512 N.E.2d apply, found not to may warrant a claim for (1987). purpose of collateral es reimbursement from an individual who has toppel prevent is relitigation endless of child, furnished child for such see the same issues. v. Adams United Steel Anonymous Husband, Anonymous v.Wife Am., workers 97 N.M. 640 P.2d 475 of (1987), 153 Ariz. 739 P.2d such (1982). exceptions have not been apply shown to Callison, here. 915; 108 N.M. at 777 P.2d at Clay Clay,

see also 397 N.W.2d (where Cross-Appeals II. The (Minn.Ct.App.1986) husband acknowl edged in proceedings paternity divorce of Support Award to Jeanne of child, judicata precludes doctrine of res post- Jeanne contends the trial court proceedings); dissolution Paternity In re erred in awarding not her the full amount of JRW, 1256, 1264(Wyo.1991)(justifi support Gregory should have paid un- cation judicata for the doctrines of res der the guidelines. As dis- estoppel prevention collateral include of in previously, cussed findings court’s decisions, preclude piecemeal consistent liti fact are insufficient to disclose the manner gation, judicial and conservation of re which the court sup- calculated the award of sources). port Thus, to both Jeanne and Tedford. we by adoption As remand for findings observed M. additional Donald that, Zupanec, despite fact and traditionally, detailing the fact conclusions of law the basis operation for the trial judicata of the doctrine of court’s award to res Jeanne. that, required apply, order for the bar to Fees, Costs, Attorney’s parties

must be shown that pres in the and Sanctions by ent case were judgment, bound earlier by Because the issues raised “the modern trend is to mutuality discard the aspect Jeanne and Tedford in this of the two Thus, paternity rule as such. cross-appeals interrelated, jointly are we dis may operate divorce or annulment decree cuss such contentions. Jeanne and Tedford an estoppel only parties as- between the assert that the trial court in refusing erred decree, party but also in attorney’s award them fees and costs. Sec volved in an action with a nonparty because provides: tion 40-11-16 of the UPA the former is himself bound the decree.” may The court order reasonable fees of (footnote omitted). 78 A.L.R.3d at 853 New counsel, experts, guardian the child’s adopted ap Mexico courts have the modern pre-trial pro- other costs the action and proach Callison, preclusion. to issue See tests, ceedings, including genetic or blood N.M. at 777 P.2d at 915. paid by any party proportions to be at times determined the court. The precluded Because Tedford is proportion any order the by the doctrine of estop defensive collateral indigent party paid to be from court funds. pel asserting a claim of reimbursement [Emphasis added.] reasons, against Gregory, for similar we also precluded pur conclude Tedford is We review a trial court’s suing a cross-claim granting denying for reimbursement of order or an award of costs support against attorney’s Jeanne. Since fees for an abuse of discretion. Martinez, estoppel 1997-NMCA-096, is barred collateral from contest See Martinez v. ¶ 17, ing the issue of Jeanne’s and as 945 P.2d 1034. Abüse of serting a claim for ruling reimbursement discretion occurs when the trial court’s clearly against we logic need consider and effect of the

218 rules, in a statute or in these before the court. made either

facts and circumstances ¶ 20, 816, That a matter of course 123 N.M. 945 P.2d 1034. costs shall be allowed as Id. however, discretion, party the court oth- prevailing is not unlimited. Rob unless 294, 297, ”); 1978, Wright, 117 N.M. 871 P.2d see also NMSA erts v. erwise directs’ 390, (Ct.App.1994). (prevailing party § 393 shall re- 39-3-30 party cover costs other “unless import the clear of Under {44} good cause court orders otherwise for 40-11-16, party automatically is not Section shown”). attorney’s of fees but entitled to an award Based on our review of the record attorney’s upon a may be awarded fees show {46} and our determination Tedford ing disparity or need. Alver of economic See ¶ Harris, 1997-NMCA-024, 26, obtaining any recovery against barred from 123 son v. Jeanne, (decided 1996). Gregory or no error in the 153, we find 1165 in N.M. 935 P.2d attorney of fees or costs to trial court’s denial this Court reviewed an award of Alverson Tedford. attorney’s petition in of the in a fees favor brought custody proceeding. in a child case Lastly, both and ar- Jeanne Tedford Similarly, in we have held domestic relations gue refusing in to that the trial court erred that, determining cases in whether to award They impose against Gregory. sanctions ar- fees, attorney’s the trial court should consid gue paternity following his denial of factors, important of er various the most receipt testing, of the results of the blood disparity

which is the economic between the assertion of certain affirmative de- and his See, Gomez, parties. e.g., v. 119 N.M. Gomez fenses constitute “bad faith.” Based on our 277, 755, 759, (Ct.App.1995); 895 P.2d 281 record, review of the our determination that Sheets, 451, 456, 106 N.M. 744 P.2d Sheets denying Gregory’s in the trial court erred 924, Moreover, (Ct.App.1987). estoppel against defense of collateral Ted- court should consider the ‘“nature of the ford, impression and the issues of first raised issues, complexity proceedings, the of the herein, say Gregory’s we cannot defens- recovered, sought ability of relief and to the claims of and Tedford were es attorneys ability par parties’ and the of the in frivolous or bad faith. ” Gomez, pay.’ at ties to 119 N.M. CONCLUSION Gilmore, (quoting P.2d at 281 Gilmore v. We affirm the trial court’s determi- (Ct.App. Gregory nation that is the father of 1988)). that Jeanne is Jeanne. We hold entitled presented evidence of the support against an award of retroactive child disparity financial between her- and with the matters consistent dis- self, inability, Gregory’s and of her abili- judgment awarding herein. The cussed Ted- ty, attorney’s her fees coats. She against Gregory ford reimbursement preserved requested findings the issue in her Jeanne is reversed. affirm the trial case, upon of fact. Based the facts of this court’s denial of sanctions. We reverse the underlying purpose give and to effect to the attorney trial court’s fees costs denial UPA, parent’s which is to enforce Jeanne, the trial court’s favor deci- child, Padilla, duty to a 116 N.M. $50,000 awarding sion to Jeanne and remand that, at 862 P.2d at we conclude thereon, proceedings findings for further cause, good absent a was error as discussed herein. deny attorney’s an award of fees and costs Jeanne, IT IS SO ORDERED. proceedings and we remand for attorney’s appropriate determine an award of FLORES, J.,

fees and costs consistent with Section 40-11- concurs. principles 16 and the set forth the case BOSSON, Judge, special concurrence. ¶ Martinez, 1997-NMCA-096, 18, law. See (observing that I concur in 945 P.2d 1034 the remit and most 1-054(E) provides reasoning opinion. sepa- I Rule NMRA 1998 write “ rately emphasize ‘[e]xcept express provision therefor is for two reasons. I want to when that, remand, apply upon court is a claim the district Jeanne conditional support guidelines Gregory recovery Gregory. the child I believe that the full public policy disfavoring award Jeanne the amount of retroactive same considerations to, regardless relitigation she is entitled of Tedford’s are not expended present what have on her a cross-claim is, effect, years recovering sup- behalf before or alter her when she age majority. happen will port paid by What Ted- that has been Tedford. Jeanne my already That opened parentage ford’s Claim reimbursement? is has the issue of own, writing specially. second reason for as she is entitled to do under the Parentage Uniform Act. Tedford would be can, easy answer is that Jeanne claim, merely asserting a conditional similar should, likely putative reimburse her lien, dependent upon contingent to a father from the amount she receives from against Gregory. success of Jeanne’s action money for some or all of the he Essentially, such a course of action would expended years, on her behalf over the when impose a constructive trust on behalf of Ted- money by should have been contributed portion proceeds ford on of whatever so, Gregory. If she does not do she well Gregory. Jeanne receives from I believe this beneficiary recovery.” become the of “double justified principles course is under traditional That respect does not bother me with restitution, equity, prevention and the Gregory. Equity appropriate is not de- enrichment, therefore, unjust I would fense for whose unclean hands bear permit Tedford’s claim to that limited extent. responsibility inju- much of the for Jeanne’s However, ry. my preven- judgment, the Thus, case, beyond looking this I unjust justify tion of enrichment would right believe that a court could consider the cross-claim Jeanne to person of a to be reimbursed for what he has recover that amount from the sum she re- spent when he can demonstrate he was Gregory. ceives from The cross-claim would fraudulently believing into deceived he was upon equitable principles be based of restitu- duty bound to such child. Under unjust tion and enrichment. The Court’s circumstances, estoppel may collateral not opinion denies Tedford that claim because of apply. A court would be well-advised to estoppel upon collateral which is also founded such a claim on consider its own merits and principles. equitable necessarily as foreclosed collateral estoppel. opinion, As I read the Court’s subject. This is a sensitive We do categorically preclude a fu- would such encourage parties not wish to embittered to a ture claim. who, motives, may divorce for ulterior later challenge fidelity wish to of their former

spouses by questioning parentage of their general proposition,

children. As a collateral this,

estoppel appropriate in a case like parents question

when divorce never parentage, even in the face of circumstances 1998-NMCA-069 give suspicion. that should rise to reasonable 959 P.2d 553 Having passed opportunity on the to raise K., In re DANIEL SHON Child. manner, timely parents the issue in a should on, No. 18626. discouraged doing so later estoppel, collateral when exercised consis- Appeals Court of of New Mexico. tently judicial policy, with sound is one Indeed, accomplishing means of that end. March 1998. Tedford has conceded that he is barred May Certiorari Denied estoppel paterni- relitigating collateral ty. However, equitable I believe that

principles should allow Tedford to make such

Case Details

Case Name: Tedford v. Gregory

Court Name: New Mexico Court of Appeals

Date Published: Mar 26, 1998

Citation: 959 P.2d 540

Docket Number: 18221

Court Abbreviation: N.M. Ct. App.