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Re: Mr. Arturo Garcia; child support modification

After 15 years of marriage, Arturo Garcia and Mary Chavez were granted a divorce in May 2001. There are three children from the marriage. Mr. Garcia was awarded pri¬mary custody of the children. Ms. Chavez, a brain surgeon at the time of the divorce, was ordered to pay monthly child support in the amount of $3,000 per month. The terms of the divorce order were undivided in that it did not specify a “per child” amount.

Ms. Chavez always resented the amount of child support she was ordered to pay; her frustration over this led her recently to quit her medical practice and enroll in the paralegal program at the community college. This career change resulted in a substantial reduction in her income. She told several individuals that she quit her practice because she “can’t stand to pay that much money to my ex-husband.”

Four months ago, the oldest child turned 18 and moved out of Mr. Garcia’s house. As soon as the oldest child moved out, Ms. Chavez reduced by one-third the amount of child support she was paying. She neither sought nor obtained a court order granting a modification of her support obligation. She told Mr. Garcia that she did not have to pay the full amount because the oldest child had turned 18. Two months ago, she unilaterally reduced her child support payments to $500 per month. She told Mr. Garcia, “That’s all I can afford to pay now that I’m going to school.”

Mr. Garcia has come to us seeking legal advice. With the above facts in mind, prepare a memo addressing the following questions:

1. Was it permissible for Ms. Chavez to unilaterally reduce support when the oldest child reached the age of majority?

2. What is the likelihood of the court granting a modi¬fication of child support due to Ms. Chavez’s change of occupation?

Statutory Law: NMSA § 28-6-1 (Repl. Pamp. 1991) (state of New Mexico) provides that the age of majority is reached when an individual turns 18 years old.

NMSA § 40-4-7 (Repl. Pamp. 1994)—Proceedings; spousal support; support of children; division of property— (state of New Mexico), section F, provides: “The court may modify and change any order in respect to… care, custody, maintenance … of the children whenever circumstances render such change proper. The district court shall have exclusive jurisdiction of all matters pertaining to the . . . care, custody, maintenance … of the children so long as the children remain minors.”

NMSA § 40-4-11.4(A) (Repl. Pamp. 1994) — Modification of child support orders; exchange of financial information—the relevant portion of section A provides:” A court may modify a child support obligation upon a showing of material and substantial changes in circumstances subsequent to the adjudication of the preexisting order.”

Case Law: Britton v. Britton, 100 N.M. 424, 671 P.2d 1135 (1983) (see Appendix A).

Wolcott v. Wolcott, 105 N.M. 608, 735 P.2d 326 (Ct. App. 1987) (see Appendix A).


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