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Webb v. Menix2/20/2004
es and this Court noted that, " f he failed to replace barren or lost cattle, at some point his breeding herd would diminish to the point where there would be essentially no income." Id. 6. Re- investments made to sustain the business, namely replenishing the father's herd of cattle, were allowed to be deducted as ordinary and necessary business expenses for the purposes of calculating child support. Id. Re-investments for purposes of growing the business, however, were to be treated as income for the purpose of child support. Id. 5.
Other jurisdictions have more directly addressed the issue of how to treat a lump sum award from a personal injury settlement when calculating child support . See generally Genna Rosten, Annotation, Consideration of Obligor's Personal-Injury Recovery or Settlement in Fixing Alimony or Child Support Award, 59 A.L.R. 5th 489, 500-28 (1998). Some of these cases determine that a parent is not required to liquidate or distribute a non-recurring lump sum award of assets that are generating income from which child support is being paid where there is adequate income to pay child support. See, e.g., S.G. v. D.M., 653 N.Y.S.2d 525, 526 (Fam. Ct. 1996); Erie County Dep't of Soc. Servs. ex rel. Trunfio v. LaBarge, 606 N.Y.S.2d 520, 522 (Fam. Ct. 1993). Other courts have allocated the lump sum personal injury settlement received over different periods of time, such as the time the child would have been eligible for support, see, e.g., Mehne v. Hess, 553 N.W.2d 482, 488-89 (Neb. Ct. App. 1996), or the time between periodic lump sum awards, see, e.g., Cleveland v. Cleveland, 592 A.2d 20, 23 (N.J. Super. Ct. App. Div. 1991), or for the year following the award, see, e.g., Darby v. Darby, 686 A.2d 1346, 1347-48, 1349-50 (Pa. Super. Ct. 1996).
Except for Boutz, upon which the parties almost exclusively rely, the parties have not called our attention to any of the above-cited cases. They have not argued with supporting authorities any of the special factors involved in personal injury settlements that are deemed controlling or important in those cases. They have not tailored their arguments to the particular purposes of New Mexico's child support statutes. Our decision is therefore based on the arguments made by the parties, and different arguments in a future case may lead to a different result.
Taking guidance from New Mexico cases such as Quintana, Talley, and Major, we find persuasive the reasoning that the undistributed principal amount from a lump sum personal injury settlement should not be considered income when it is being used to generate the income to pay child support , there is adequate income to pay child support, and there is evidence that a parent needs the remaining principal over the course of the parent's own life for the parent's own support. Because these factors are present, we hold that the district court properly exercised its discretion in accordance with the child support guidelines to calculate child support based on a reasonable rate of return of the money invested from Father's personal injury lump sum payment plus the withdrawals of principal that Father actually takes.
CONCLUSION
We affirm the judgment of the district court. The parties shall bear their own fees and costs on appeal.
IT IS SO ORDERED.
LYNN PICKARD, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
IRA ROBINSON, Judge
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