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Webb v. Menix2/20/2004
The issues in this case arise from Mother's attempt to receive retroactive child support payments under the Uniform Parentage Act , NMSA 1978, ยงยง 40-11-1 to -23 (1986, as amended through 2001). The parties' child was born in December 1986, shortly after their pro se divorce. In May 1999, Mother filed this suit in her own name seeking a determination of paternity, as well as custody, past and future child support, and attorney fees. The district court ruled that Mother waived most of her claim to retroactive child support, determined an amount of monthly support Father should pay, and awarded Mother a portion of her requested attorney fees.
The issues raised on appeal are whether the district court erred in (1) awarding child support retroactive only to December 1998, (2) awarding Mother only $1500 of her requested attorney fees, (3) refusing to allow the child to be added as a party at the commencement of trial, and (4) computing Father's available gross income for purposes of child support. For the reasons that follow, we affirm the judgment of the district court.
RETROACTIVE CHILD SUPPORT
The UPA states that the court shall award child support retroactive to the child's birth provided that it consider applicable equitable defenses "in deciding whether and how long to order retroactive support." Section 40-11-15(C)(2). Before ruling that Mother had waived her claim to most of the retroactive child support, the district court noted that the equities weighed heavily on both sides in this case. Our review of the record leads us to conclude the district court properly weighed the equities.
Our Court has previously recognized two kinds of common-law waiver in the child support context: intentional waiver and waiver by acquiescence. See Sisneroz v. Polanco, 1999-NMCA-039, 12, 126 N.M. 779, 975 P.2d 392. Intentional waiver consists of three elements: "(1) a known legal right; (2) relinquished for consideration; and (3) where waiver does not infringe on the rights of others." Id. 15. Noting that retroactive child support is for the benefit of the child as well as the parent, this Court determined that the father in Sisneroz did not establish all the elements of intentional waiver. Id. We do likewise.
Unlike intentional waiver, however, the defense of waiver by acquiescence "arises when a person knows he is entitled to enforce a right and neglects to do so for such a length of time that under the facts of the case the other party may fairly infer that he has waived or abandoned such right." Id. (internal quotation marks and citation omitted). Waiver by acquiescence should not be inferred from doubtful or ambiguous acts. Id. In rejecting the father's assertion of waiver by acquiescence in Sisneroz, this Court noted that he relied on the fact that the mother failed to ask him directly for support and, when he asked the child's maternal grandparents if the child needed anything, he was told that the child was doing fine. Id. 17. In Sisneroz, there was no evidence that the mother told the father she did not want his money. Id. The mother did not tell the father he could not see the child, and she facilitated a relationship between the father and the child. Id.
Mother's actions in this case differ from those in Sisneroz. In this case, both parties testified that Mother told Father that the child was not his child. There was testimony that Mother also told third parties that Father was not the child's father and even identified another man as the father. Mother did not name Father on the birth certificate, which indicated that the father was unknown. The divorce decree, entered in the parties' pro se divorce, did not mentio
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