N.M. Stat. Ann. § 40-4-7

Section 40-4-7(B)(1) gives the trial court discretion to set alimony after considering the spouses’ needs, earning capacity, and property.

Hurley v. Hurley · filed 1980-06-10(B)(1)

An award of alimony is a matter which rests within the sound discretion of the trial court. Burnside v. Burnside, 85 N.M. 517, 514 P.2d 36 (1973); Muckleroy v. Muckleroy, supra; Section 40-4-7(B)(1), N.M.S.A.1978. The statute provides and this Court has established a number of factors to be considered in determining the amount of alimony to be granted. ... Given the gross disparity in earnings and earning capacity, we feel that an award of $1,000 per month was insufficient to permit appellant to maintain the family home for herself and her children in a manner to which she and the children were accustomed.

Section 40-4-7 permits reasonable alimony, but awarding monthly payments and indefinite possession of the home can abuse the court’s discretion when it may deprive the other spouse of his equity.

Chrane v. Chrane · filed 1982-08-17

It is established law in New Mexico that a court has the discretion to allow either party a reasonable portion of the spouse’s separate property, in a lump sum or in installments by way of alimony, as under the circumstances of the case may seem just and proper. Section 40-4-7, N.M.S.A.1978. ... In this case, the court awarded to the wife, $500 per month alimony. In addition, the judgment provided that the wife be allowed to live in the house until her death or until she remarried, or until she decided that the house should be sold. We believe that this is an abuse of discretion. ... The net effect of leaving the home to the wife until she remarries or dies or decides to sell it, is to divest the husband of his equity in the property. In fact, he may never live to receive any portion of that equity.

Section 40-4-7 gives New Mexico courts jurisdiction to consider modifying future alimony payments in a foreign divorce decree.

Altman v. Altman · filed 1984-06-05

Section 40-4-7 gives the New Mexico court subject matter jurisdiction to consider the alimony modification.

Section 40-4-7(B)(1) requires an alimony award to rest on factors such as the marriage’s duration, the recipient’s needs and means, the other spouse’s earning capacity, and each spouse’s property.

Hertz v. Hertz · filed 1983-01-11(B)(1)

Factors to be considered by a district court in determining whether an alimony award is just and proper pursuant to Section 40-4-7(B)(l), N.M.S.A.1978, include the duration of the marriage, the wife’s needs, her age, her health, the means she has available to support herself, the husband’s earning capacity, and the amount of property owned by each of the parties. ... We hold that the district court erred in determining that wife was entitled to alimony “in order to afford herself an opportunity to achieve an earning capacity reasonably comparable to that of [husband].” In addition, the district court’s finding that wife is in need of alimony “in order to support herself in a style reasonably comparable to that enjoyed by the parties during the marriage”, is similarly erroneous. These are not factors upon which alimony is determined.

Section 40-4-7(A) permits temporary alimony during a divorce proceeding, with the timing and amount subject to the trial court’s discretion.

Howard v. Howard · filed 1983-06-10(A)

Alimony may be awarded during the pendency of a proceeding. We find that the timing and amount of the award of temporary alimony in this case did not constitute an abuse of discretion.

Section 40-4-7(A) authorizes a court to award temporary alimony while a divorce is pending.

Merrill v. Davis · filed 1983-09-14(A)

The trial court did have authority to grant temporary alimony during the pendency of the divorce proceeding. NMSA 1978, § 40-4-7(A). However, she is not entitled to support during separation as a matter of right.

Section 40-4-7(B)(1) allows temporary alimony when a spouse needs support after dissolution, with the amount and duration determined by the district court.

Bustos v. Bustos · filed 1983-09-21(B)(1)

Factors to be considered by a district court in determining whether an alimony award is just and proper pursuant to Section 40-4-7(B)(l), N.M.S.A.1978, include the duration of the marriage, the wife’s needs, her age, her health, the means she has available to support herself, the husband’s earning capacity, and the amount of property owned by each of the parties, (citation omitted). ... These facts suggest a need for alimony for at least a temporary period of time to assist Wife in regaining a position whereby she can support herself. This issue is therefore remanded to the district court to award temporary alimony. The amount and duration of the alimony is to be determined by the district court.

Section 40-4-7(A) permits the court to award support to either party during divorce proceedings as it considers just and proper.

Mitchell v. Mitchell · filed 1986-03-18(A)

NMSA 1978, Section 40-4-7(A) (Repl.Pamp.1983), provides that the court may provide for the support of either party during the pendency of the proceeding as in its discretion may seem just and proper. ... The amount and the duration of the alimony in this case are appropriate in view of the factors listed in Ellsworth.

Section 40-4-7(B) leaves alimony awards and their amounts to the trial court’s discretion in light of the evidence.

DeTevis v. Aragon · filed 1986-10-09(B)

An award of alimony and the fixing of the amount is a matter entrusted to the sound discretion of the trial court in light of the evidence in each particular case. Lucas v. Lucas, 95 N.M. 283, 621 P.2d 500 (1980); Bilbao v. Bilbao, 102 N.M. 406, 696 P.2d 494 (Ct.App.1985). See also NMSA 1978, § 40-4-7(B) (Repl.1986).

Section 40-4-7(B)(1) requires courts to consider a spouse’s need and the support available from community property before ordering the other spouse to pay alimony.

Foutz v. Foutz · filed 1990-08-16(B)(1)

The legislature, by making provision for payment of alimony, see NMSA 1978, § 40-4-7(B)(l) (Repl. Pamp.1989), recognized that post-marital support may be justified “as under the circumstances of the case may seem just and proper.” ... We repeat that, even if it be determined that the spouse qualifies for support, the community property and its potential for providing support should be examined and utilized before imposing support obligations on the other spouse.

Section 40-4-7(B) permits a court at final hearing to award a reasonable portion of one spouse’s separate property to the other as alimony when the circumstances justify it.

Bayer v. Bayer · filed 1990-09-14(B)

The New Mexico statute is more limited. See NMSA 1978, § 40-4-7(B) (Repl.Pamp.1989). On final hearing, a New Mexico court may award either party such a reasonable portion of a spouse’s separate property as alimony, as under the circumstances of the case may seem just and proper.

Section 40-4-7(D)(1) requires a court considering spousal support to assess the recipient spouse’s mental health when the spouse makes a prima facie showing of a mental condition.

Martinez v. Martinez · filed 1997-09-24(D)(1)

The provisions of Section 4(M-7(D)(1), requiring the trial court to consider the health of a spouse seeking spousal support, implicitly requires that the court also consider the mental health of a spouse where a prima facie showing has been made concerning the recipient spouse’s alleged current mental condition.

Section 40-4-7(E) (1993), now subsection (F), preserves jurisdiction to consider spousal support after a marriage of at least twenty years when the divorce decree is silent about support.

Rhoades v. Rhoades · filed 2003-12-15(E)

We construe Section 40-4-7(E) (1993) to mean what it says: in cases in which the marriage lasted twenty or more years, the court must retain jurisdiction to consider spousal support when the final decree was silent as to such support.

Section 40-4-7(F) permits a district court to award spousal support when the parties were married for at least twenty years before dissolution.

Bergman v. Bergman · filed 2009-03-30(F)

A district court may award spousal support when the parties have been married twenty years or more prior to the dissolution of the marriage. See NMSA 1978, § 40-4-7(F) (1997).

Section 40-4-7(E) requires the court to consider its statutory factors when awarding spousal support.

Barton v. Barton · filed 2010-08-18(E)

The court does not appear to have considered the required factors of NMSA 1978, Section 40-4-7(E) (1997) and appears to have intended to by-pass those requirements through invocation of equity. We are presented with no authority on which the court relied for invocation of equity under the circumstances, and Wife presents no persuasive authority on appeal to support her position that equity permitted the manner in which the court made the award.

Section 40-4-7(E) requires courts to consider the listed factors when setting spousal support; failing to consider them is an abuse of discretion.

Lopez v. Lopez · filed 2013-05-29(E)

The district court abuses its discretion when it fails to consider these relevant statutory factors in determining an award or fixes an amount which is contrary to all reason. ... However, the language of the judgment and final decree and the oral ruling of the district court demonstrate that the district court did in fact consider the statutory factors in it awarding spousal support to Wife.

Section 40-4-7(E) requires courts setting spousal support to consider the spouses’ efforts to maintain employment, their reasonable needs, and their agreements made in contemplation of divorce.

Feinberg v.Feinberg · filed 2013-05-30(E)

The court’s decision was consistent with New Mexico statutory law. See § 40-4-7(E)(3), (4), (10) (stating factors that the court shall consider when determining the appropriate amount of spousal support, including the good-faith efforts of the spouses to maintain employment, the reasonable needs of the spouses, and the agreements entered into in contemplation of the dissolution of marriage). The court did not abuse its discretion in assessing and modifying the amount of Husband’s spousal support obligation.

Section 40-4-7(E) requires courts to consider the spouses’ assets and needs when determining spousal support.

Martinez v. Martinez · filed 2016-12-29(E)

As already indicated, we begin by addressing Wife’s cross-appeal because the designation of the settlement proceeds as separate or community property necessarily impacts the appropriateness of the district court’s spousal support award, which should be based in part on the parties’ relative assets and needs.

Section 40-4-7(E) sets the factors to consider when determining spousal support.

Chavez v. Chavez · filed 2017-03-29(E)

Aside from reasserting these facts and without including facts supporting an award of spousal support, Respondent does not demonstrate how the special master’s spousal support recommendation either failed to account for the factors in Section 40-4-7 or weighed the factors improperly or why the district court’s adoption of the spousal support recommendation was an abuse of discretion. We therefore conclude the district court did not abuse its discretion in awarding Petitioner spousal support of $1,100 monthly.

Section 40-4-7(E)(4)(a) requires courts setting spousal support to consider each spouse’s reasonable needs and permits them to reduce a proposed budget they find unrealistic.

Trinosky v. Johnstone · filed 2013-07-17(E)(4)(a)

NMSA 1978, Section 40-4-7(E)(4)(a) (1997) directs the district court to consider “the reasonable needs of the respective spouses” in setting spousal support. Although the district court is required to also consider “the standard of living of the respective spouses during the term of the marriage[,]” it was within the district court’s discretion to reduce Wife’s proposed budget if it found, as it did, that it was “neither credible nor realistic.”

Section 40-4-7(E)(2) requires courts calculating spousal support to consider cash distributions from a spouse’s Subchapter-S corporation unless the spouse shows that the funds were used for business expenses or related taxes.

Clark v. Clark · filed 2013-08-12(E)(2)

Wife asserts that it was an abuse of discretion for the district court to base its spousal support calculation only on a portion of Husband’s W-2 wage income and not on the total amount of his income from IPR because NMSA 1978, Section 40-4-7(E)(2) (1997) requires the non-W-2 income distributions to be included in this calculation. Under the particular facts of this case, we agree with Wife on this issue. ... We conclude that Subchapter-S corporation funds actually distributed to the shareholder-spouse must be attributed to the shareholder-spouse as income for spousal support purposes unless and until the shareholder-spouse can demonstrate what portion of the corporate distribution was used for business purposes or to offset the payment income taxes resulting from any K-1 allocations.

Section 40-4-7(E)(2) includes corporate cash distributions in a shareholder-spouse’s income for spousal support unless that spouse shows they were used for business expenses or related income taxes.

Clark v. Clark · filed 2013-12-11(E)(2)

We conclude'that Subchapter-S corporation funds actually distributed to the shareholder-spouse must be attributed to the shareholder-spouse as income for spousal support purposes unless and until the shareholder-spouse can demonstrate what portion ofthe corporate distribution was used for business purposes or to offset the payment of income taxes resulting from any K-l allocations.

Section 40-4-7(B)(1)(b) requires a transitional spousal support award to state its duration clearly.

Esparza v. Esparza · filed 2015-10-07(B)(1)(b)

The district court ultimately awarded Wife transitional support and explicitly prescribed a duration on the support as required by Section 40-4-7(1)(b).

Section 40-4-7(E) sets out factors for courts to consider when awarding spousal support.

Anderson v. Anderson · filed 2021-07-12(E)

As we explained in our notice of proposed disposition, the record indicates that the district court neither failed to consider or make findings relevant to the spousal support factors, nor disregarded the evidence presented to it.

Section 40-4-7(E) requires courts deciding spousal support to consider the recipient’s needs and ability to support themselves, the payor’s earning capacity, the length of the marriage, and the parties’ property.

Burke v. Burke · filed 2022-09-06(E)

“In determining whether to order spousal support, the district court is to consider: (1) the needs of the proposed recipient[;] (2) the proposed recipient’s age, health, and means of self-support; (3) the proposed payor’s earning capacity and future earnings; (4) the duration of the marriage; and (5) the amount of property owned by the parties.” Rabie v. Ogaki, 1993-NMCA-096, ¶ 5, 116 N.M. 143, 860 P.2d 785; see also § 40-4-7(E). ... Under these facts, we conclude that the district court’s award of spousal support was supported by substantial evidence and was not an abuse of discretion.

Section 40-4-7(E)(2) requires the district court to quantify future earnings when determining spousal support.

Argant v. Argant · filed 2025-06-05(E)(2)

In determining an award of spousal support, the district court is required by statute to quantify future earnings. See § 40-4-7(E)(2).

Section 40-4-7(B)(2) permits a court to modify an alimony award incorporated from the parties’ agreement when circumstances make a change proper.

Brister v. Brister · filed 1979-05-14(B)(2)

The public policy on modification of alimony awards is established by § 40-4-7(B)(2), N.M.S.A.1978, which gives the district court the authority to change any order with respect to alimony allowed to either spouse “whenever the circumstances render such change proper”. The court may disregard the agreement and make an award that the court deems fair.

Section 40-4-7 permits modification of a reserved alimony award when changed financial circumstances affect a former spouse’s needs; a bankruptcy discharge can be such a change.

In Re Danley · filed 1981-10-08

I believe a husband’s bankruptcy discharge can, under appropriate circumstances, impact upon the needs of the wife and thus constitute the change in financial condition required for a modification of a support decree. ... But where, as here, it is abundantly clear from the decisions of the state trial court that payment by the debtor of the debts later discharged was a significant factor in the initial award, and jurisdiction was carefully reserved to deal with any changed circumstance, it must be conceded that a bankruptcy discharge is such a changed circumstance as to permit state court action.

Section 40-4-7(B)(2) permits modification of alimony when changed circumstances make it proper, even if the original decree was not appealed.

Dunning v. Dunning · filed 1985-05-16(B)(2)

Here the challenge goes to alimony only, and pursuant to Section 40-4-7(B)(2), alimony awards can be modified whenever changed circumstances make a modification proper.

Alimony depends on the dependent spouse’s need, the parties’ ability to support themselves, and the equities of the case; SSI eligibility alone does not justify terminating alimony.

Sheets v. Sheets · filed 1987-10-06(B)(1)

Any award of alimony must be based on a showing of need by the dependent spouse, the ability of each party to become self-supporting, and the equities of the particular case. ... Petitioner’s eligibility for SSI benefits, without more, does not constitute a material change of circumstances justifying termination of alimony.

Section 40-4-7(B)(2) permits modification of alimony when circumstances warrant, but does not authorize changing a community property payment plan.

Hall v. Hall · filed 1992-08-26(B)(2)

Also, a trial court may modify judgments relating to alimony when the circumstances render such a change proper. NMSA 1978, § 40-4-7(B)(2) (Repl.Pamp.1989); see Higginbotham v. Higginbotham, 92 N.M. 412, 413, 589 P.2d 196, 197 (1979) (rule that the court loses jurisdiction after 30 days does not apply to modifying awards of support). Here, however, the express language of the trial court’s order did not modify an award of support, but rather altered the payment plan for the community property division. The portion of the trial court’s order awarding wife the Chilton Inn property and ordering husband to deed it to wife must therefore be reversed.

Section 40-4-7(B)(2) permits changes to alimony when circumstances make them proper and does not allow divorce decrees to provide for automatic alimony increases.

Dunning v. Dunning · filed 1986-06-10(B)(2)

We stress that “[t]he public policy on modification of alimony awards is established by § 40-4-7(B)(2) NMSA 1978, which gives the district court the authority to change any order with respect to alimony allowed to either spouse ‘whenever the circumstances render such change proper.’ ” Brister v. Brister, 92 N.M. 711, 713, 594 P.2d 1167, 1169 (1979). ... For these reasons, we hold that it is not proper to include provisions in divorce decrees which provide for automatic alimony increases, whether they are expressed as escalator clauses, in terms of a percentage of a supporting spouse’s income, or based upon a sliding-scale formula.

Section 40-4-7(B)(2) does not permit modification of a lump sum alimony award once granted.

Michaluk v. Burke · filed 1987-03-19(B)(2)

Both parties state that lump sum alimony is modifiable based on Section 40-4-7(B)(2). We disagree.

Section 40-4-7(B)(2) permits modification of a fixed-term alimony award that is not a lump sum when circumstances warrant, if the motion is filed before the award expires.

Deeds v. Deeds · filed 1993-02-17(B)(2)

The legislature having expressly provided this authority, and the award of alimony in this case not being a lump sum, we believe the award was subject to modification. ... In this case, Wife filed a motion before alimony expired; therefore, the court has jurisdiction to modify the award under the restrictions set forth above.

Section 40-4-7(B)(2) places the burden on the party seeking to modify support to show a substantial change in circumstances that justifies a new order.

Cherpelis v. Cherpelis · filed 1996-02-15(B)(2)

This policy places a burden upon the movant to show not just a substantial factual change, but also that, all things considered, the change justifies a new support order.

Section 40-4-7(E) requires a court deciding whether to modify or terminate spousal support to consider the statutory factors even when the parties have a settlement agreement.

E Fox v. Radwanski · filed 2009-02-20(E)

Thus, the district court in the present case was required to consider the factors in Section 40-4-7(E) in determining whether to modify or terminate spousal support.

Spousal support designated as nonmodifiable under Section 40-4-7(B)(2)(b) is not presumptively terminated by the receiving spouse’s remarriage.

Galassi v. Galassi · filed 2009-02-02(B)(2)(b)

We reverse and hold that spousal support designated as nonmodifiable under NMSA 1978, Section 40-4-7(B)(2)(b) (1997) is not subject to the presumption of termination upon the remarriage of the receiving spouse.

Section 40-4-7(B)(2)(a) does not permit modification of a single-sum spousal support award under (B)(1)(d), even when the total must be calculated from installments.

Pruyn v. LAM · filed 2009-06-30(B)(2)(a)

We determine that the parties’ spousal support is a single sum pursuant to Subsection 40-4-7(B)(1)(d), which is not statutorily modifiable under Subsection 40-4-7(B)(2)(a).

Section 40-4-7(B)(2)(a) permits modification of rehabilitative spousal support when circumstances render a change proper; circumstances known when the final decree was entered did not warrant modification.

Garcia v. Garcia · filed 2012-07-05(B)(2)(a)

There are no circumstances 11 warranting a modification of the final decree.

Section 40-4-7(F) requires continuing jurisdiction over periodic spousal support after a marriage of at least twenty years, but does not permit modification of a lump sum award.

Chase v. Chase · filed 2021-04-05(F)

Thus, the district court properly terminated its ongoing jurisdiction over spousal support because Husband’s $50,000 payment to Wife was a lump sum payment not subject to modification under Section 40-4-7(F).

Section 40-4-7(C) allows a child support modification to take effect from the filing of the petition, absent unreasonable delay in bringing the case to trial or unusual circumstances.

Montoya v. Montoya · filed 1980-11-19(C)

In Gomez v. Gomez, 92 N.M. 310, 587 P.2d 963 (1978), we held that under Section 40-4-7(C), N.M.S.A.1978, a trial court did not have discretion to modify past, as distinguished from future, child support payments. We also indicated in Gomez that the applicable date for any modification is the date of hearing and not the date of filing of the pleading. The vast majority of cases and texts support the rule that the applicable date for any modification is the date of filing of the petition or pleading rather than the date of hearing, absent an unreasonable delay in bringing the case to trial by a party, or unless there are unusual circumstances. See 24 Am.Jur.2d, Divorce and Separation § 659, (1966); 6 A.L.R.2d 1328 (1949). To the extent that Gomez could be interpreted to hold that the applicable date for modification of child support payments should be the date of hearing, rather than the date of the filing of a petition, application or pleading for relief, it is hereby expressly overruled.

Section 40-4-7(C) authorizes courts to increase child support payments by modification.

Peterson v. Peterson · filed 1982-09-03(C)

Section 40-4-7(C), N.M.S.A. 1978 specifically provides that state courts have authority to increase by modification child support payments and in enforcing such obligations by the trial court no major damage is done to clear and substantial federal interests.

Accrued child support cannot be modified, but a parent may receive credit for Social Security disability benefits paid to the children for the months those benefits cover.

Romero v. Romero · filed 1984-05-08(C)

We hold that the father should receive a $150 credit for each month the lump sum was intended to cover from the date of his disability for the following reasons. 1) The holding is consistent with the rule that modification of accrued child support is not allowed. Gomez v. Gomez, 92 N.M. 310, 587 P.2d 963 (1978), rev’d on other grounds in Montoya v. Montoya, 95 N.M. 189, 619 P.2d 1233 (1980). See NMSA 1978, § 40-4-7(C) (Repl.Pamp.1983).

Section 40-4-7(C) permits a court to disregard a child support agreement and modify future support when circumstances have substantially changed.

Hopkins v. Guin · filed 1987-02-26(C)

Since the public policy regarding modification of child support is the same as for modification of alimony, see Section 40-4-7(C), we hold that the trial court was permitted to disregard the parties’ agreement in the present case. Because there was substantial evidence of changed circumstances since the prior adjudication, the trial court might reasonably consider increasing future child support.

Section 40-4-7(C) requires a substantial change in circumstances before a court may modify a child support obligation, even under the statutory support guidelines.

Perkins v. Rowson · filed 1990-08-02(C)

Instead, we think the legislature intended Section 11.1 to update and make uniform throughout the state the amount of the child support obligation based on the income of the parents, but did not intend to abolish the requirement that the party seeking modification make the traditional showing of a substantial change in circumstances. In addition, we believe this reading harmonizes Section 11.1 with Section 7 and gives effect to both.

Section 40-4-7(B)(3) imposes a duty on both parents to support their minor children, and a parent’s voluntary assumption of an excessive financial burden does not decrease that duty.

Henderson v. Lekvold · filed 1980-12-08(B)(3)

Although a trial court should, and did here, consider the various circumstances that bear on both parents’ ability to provide needed support, see Spingola, supra, both parents still have the duty to support their minor children. Petition of Quintana, 83 N.M. 772, 497 P.2d 1404 (1972); § 40-4-7(B)(3), N.M.S.A. 1978. We are faced then with the issue of whether this duty is decreased when a parent voluntarily assumes an excessive financial burden only for, as Lekvold testified, his convenience and investment. We hold that it is not.

Section 40-4-7 specifies no special limitations period for collecting unpaid child support.

Britton v. Britton · filed 1983-10-17

We note at the outset that there is no special statute of limitations specified under the child support or the enforcement provisions, respectively, of NMSA 1978, Section 40-4-7 or 40-4-19 (Repl.Pamp.1983).

Section 40-4-7(B)(3) authorizes setting apart spouses’ property to produce income for their children’s support.

Blake v. Blake · filed 1985-01-24(B)(3)

The plan for child support does not deprive wife of her interest in community property; it requires conversion of non-income producing assets into an income-producing asset for the benefit of the children. Section 40-4-7(B)(3) and Section 40-4-14 authorize this.

Section 40-4-7(B)(3)(b) may be applied to modify child support under a final divorce decree entered before the subsection was enacted because that application is prospective.

Marquez v. Copeland · filed 2010-11-05(B)(3)(b)

Thus, because this case was not pending at the time the district court applied Section 40-4-7, application of that statute was prospective, not retroactive as Father asserts.

Section 40-4-7(B)(3)(b) ends an ongoing child support obligation when the child reaches eighteen.

State of New Mexico v. Lachey · filed 2018-07-31(B)(3)(b)

Respondent was no longer obligated to pay ongoing child support, because Child had already reached eighteen-years-old. [RP 56, 60] See NMSA 1978, § 40-4-7(B)(3)(b) (1997).

Section 40-4-7(C) allows courts to modify child custody agreements when circumstances and the child’s welfare require it.

Matter of Adoption of John Doe · filed 1982-05-20(C)

Agreements, however, between parents and third parties regarding the guardianship, care, custody, maintenance or education of children are subject to judicial modification. Implicit in every such agreement is the right of parties and the court to amend or abrogate such agreements when circumstances necessitate and the best interests and welfare of the child so require. See § 40-4-7(C), supra; Scanlon v. Scanlon, supra.

Section 40-4-7 permits modification of child custody only upon a substantial change in circumstances after the divorce decree that affects the child’s best interests and welfare.

Seeley v. Jaramillo · filed 1986-09-30

Under NMSA 1978, Section 40-4-7 (Repl.1986), child custody may be modified only upon a showing of a substantial change of circumstances occurring subsequent to the entry of the decree of divorce affecting the best interests and welfare of the child. ... Under the facts revealed by the record, substantial evidence does not support the ruling ordering a modification of custody.

Section 40-4-7(C) permits modification of custody or visitation upon a showing of materially changed circumstances affecting the child’s best interests.

Jeantete v. Jeantete · filed 1990-12-31(C)

Courts may modify a prior custody order whenever circumstances render such change proper and in furtherance of the child’s best interests. NMSA 1978, § 40-4-7(C) (Repl.Pamp.1989). Modification of child custody is “proper” upon a showing of materially changed circumstances affecting the best interests of the child.

Section 40-4-7(B) and (C) authorize a dissolution court to grant visitation to a person important to a child’s welfare and to enforce or modify that visitation order.

Rhinehart v. Nowlin · filed 1990-12-18(B), (C)

We determine that trial courts, in proceedings for dissolution of a marriage, have the power and authority to execute, modify or vacate any order involving the guardianship, care, custody, maintenance and education of minor children. See NMSA 1978, § 40-4-7(B), (C) (Repl.Pamp.1989). Specifically, trial courts are given exclusive jurisdiction of all matters relating to the guardianship, care, custody, maintenance and education of the children. Id. We conclude that the granting of visitation rights to a person or persons who the trial court determines are significant and important to the welfare of the children is a part of the trial court's grant of power. We thus hold that the trial court here had subject matter jurisdiction to approve and later enforce or modify the stipulated order.

Section 40-4-7(G) gives New Mexico district courts concurrent jurisdiction over child custody matters, with the proper venue determined separately.

Dugie v. Cameron · filed 1998-12-18(G)

However, under Section 40-4-7(G), district courts throughout New Mexico have concurrent jurisdiction, and the issue is then which court is the proper venue to hear the matter.

Section 40-4-7(G) permits a district court to modify a custody order when just and proper; modification requires materially changed circumstances affecting the child’s best interests.

Hoffman v. Hoffman · filed 2012-10-31(G)

“Courts may modify a prior custody order whenever circumstances render such change proper and in furtherance of the child’s best interests.” Id. at 418, 806 P.2d at 67; see also NMSA 1978, § 40-4-7(G) (1997) (stating that the district court may modify a custody order whenever just and proper). ... We find no abuse of discretion in the district court’s determination that this did not constitute a material change in circumstances.

Section 40-4-7(G) permits modification of a custody order only upon a substantial change in circumstances affecting the child's best interests and welfare since the prior order.

Hopkins v. Wollaber · filed 2018-12-28(G)

The Legislature has provided that “[t]he court may modify and change any order . . . in respect to the . . . custody, maintenance or education of the children whenever circumstances render such change proper.” NMSA 1978, § 40-4-7(G) (1997). We have interpreted this to mean that “a court may modify a custody order only upon a showing of a substantial change in circumstances affecting the best interests and welfare of the child, and a showing that such change of circumstances has occurred since the entry of the prior custody order.” Campbell, 1990-NMCA-037, ¶ 20.

Section 40-4-7(G) permits modification of a child custody order when a substantial change in circumstances affects the children’s best interests.

Roybal v. Garcia · filed 2021-02-25(G)

Pursuant to NMSA 1978, Section 40-4-7(G) (1997), “[t]he court may modify and change any order or agreement merged into an order in respect to the guardianship, care, custody, maintenance or education of the children whenever circumstances render such change proper.” However, “[a] court may modify a custody order only upon a showing of a substantial change in circumstances since the prior order that affects the best interests of the children.” ... In this case, Mother’s difficulty in carrying out the parties’ prior custody arrangement was sufficient to demonstrate a substantial change in circumstances that affected Children’s best interests.

Section 40-4-7 authorizes custody and visitation orders in dissolution proceedings; such an order may remain effective after dismissal and be modified in a later proceeding.

Bravo v. Bravo · filed 2021-05-27(A), (B)(4)

As noted, the district court had adopted the provisions of the parenting plan as an order of the court, and the district court was authorized to make such an order. See NMSA 1978, § 40-4-7(A) (1997) (“In any proceeding for the dissolution of marriage, division of property, disposition of children or spousal support, the court may make and enforce by attachment or otherwise an order . . . for the control of the children . . . as in its discretion may seem just and proper.”). Additionally, the district court had jurisdiction to enter a prospective order relating to child custody and visitation on entering its order dismissing the case. See § 40-4-7(B)(4) (stating that on a final hearing in a dissolution of marriage case, the district court “may make such an order for the guardianship, care, custody, maintenance and education of the minor children . . . as may seem just and proper”). As a result, the child custody and visitation provisions of the parenting plan were in effect at the time Petitioner filed her new petition for dissolution of marriage, and the district court was free to hear and rule upon Petitioner’s motion to modify its provisions.

Section 40-4-7 requires the district court to dispose of and relinquish control over remaining education funds when children reach majority.

Spingola v. Spingola · filed 1979-12-12

We believe that § 40-4-7 precludes the district court from retaining control of any provision in decrees providing funds for post-minority education. When the children reach majority, the court must dispose of and relinquish control over any of the remaining funds created for their education.

Section 40-4-7 does not give a trial court jurisdiction to order parents to pay for a child's post-minority education.

Christiansen v. Christiansen · filed 1983-07-20

NMSA 1978, Section 40-4-7 does not give the trial court jurisdiction over post-minority education for children.

Section 40-4-7 limits child-support jurisdiction to minors and does not authorize support after a child reaches majority solely to finish high school.

Psomas v. Psomas · filed 1982-12-28

We agree with the husband that the court had no jurisdiction to provide for children who have passed the age of majority.

Section 40-4-7(C) permits the court to dispose of funds left after meeting children’s needs, but does not authorize a post-majority education trust funded by child support withheld from them.

Dillard v. Dillard · filed 1986-08-28(C)

The statutory language encompasses funds that “remain” in the sense of the residuum of funds that have been applied to the children’s needs, not funds that the trial court ordered accumulated and which never reached the children ordered to be supported. Petitioner’s reliance on this language to somehow extend the court’s jurisdiction to the creation of an educational trust after majority is misplaced.

Section 40-4-7 does not eliminate a parent's common-law duty to support a severely disabled child after the child reaches adulthood.

Cohn v. Cohn · filed 1996-12-12

We discern in this language no intent on the part of the legislature to absolve parents of all responsibility to provide financial support for severely mentally or physically disabled children after their eighteenth birthday. There is certainly nothing in the statute which indicates an intent to eliminate the common-law rule we adopt today.

Section 40-4-7(F), as it stood when the divorce decree was entered, allowed the court to order child support only while a child was a minor, but did not bar enforcement of a valid agreement for post-minority support as a contract.

Ottino v. Ottino · filed 2001-03-23(F)

Under the relevant statute in effect at the time of the entry of the divorce decree between James and Dana, the district court could, as a general matter, only order child support attendant to a divorce decree “so long as the children remain[ed] minors.” Section 40-4-7(F) (1993); Christiansen v. Christiansen, 100 N.M. 102, 104, 666 P.2d 781, 783 (1983). ... In this light, the statutory jurisdiction vested in our district courts for the purposes of crafting and entering orders of support upon divorce ought not to be viewed as a limitation upon the courts’ original jurisdiction, but as an augment to it.

Section 40-4-7(C) gives district courts jurisdiction to interpret and enforce written agreements for post-secondary education support after a child is emancipated.

Weddington v. Weddington · filed 2004-04-16(C)

Enforcement of the parties’ agreement regarding post-minority education is now governed by statute and the district court has jurisdiction to enforce the agreement after employing contract construction tools.

Section 40-4-7 gives the court discretion to decide which party bears the expenses of the proceedings.

Murphy v. Murphy · filed 1981-07-21

Pursuant to Section 40-4-7, N.M. S.A. 1978 the trial court has the authority to designate which party in such proceedings will bear the expenses of those proceedings. We hold that the court did not abuse its discretion.

Section 40-4-7(A) permits attorney fees to support efficient preparation and presentation of a case; economic disparity need only be apparent from the findings, not expressly found.

Bilbao v. Bilbao · filed 1985-02-12(A)

NMSA 1978, Section 40-4-7(A) (Repl.Pamp. 1983) states that an award of attorney fees is for “an efficient preparation and presentation of his ease.” ... There is no need for an actual finding of economic disparity, only that it is apparent from the findings that one exists. Bustos. The other findings support a conclusion that there was an actual economic disparity between husband and wife. The trial court did not abuse its discretion in the $3,500 award of attorney fees.

Section 40-4-7 guides courts to exercise discretion over attorney fees with a view toward a party’s effective preparation and presentation of the case.

Berry v. Meadows · filed 1986-01-07

The trial court’s discretion must be exercised with a view toward insuring a party with an efficient preparation and presentation of her case. See Moore v. Moore, 71 N.M. 495, 379 P.2d 784 (1963); see also NMSA 1978, § 40-4-7 (Repl.Pamp.1983). ... In light of our ruling, which reverses the trial court’s denial of wife’s portion of the PCA contingent rights and her portion of the military retirement installments paid since the filing of suit herein, we remand the issue of wife’s right to attorney fees at trial to the district court for further consideration.

Section 40-4-7(A) gives courts discretion to award attorney fees for divorce proceedings and permits them to consider a party’s success on the merits.

Bustos v. Gilroy · filed 1988-02-02(A)

The trial court’s findings regarding the absence of economic disparity are supported by substantial evidence. Although we do not view the trial court’s denial of attorney fees as error, success on the merits is a factor which the trial court may properly consider in awarding attorney fees. See Fitzsimmons v. Fitzsimmons. Thus, in light of wife’s success on appeal, we suggest the trial court reconsider its ruling under Section 40-4-7(A).

Section 40-4-7(A) gives trial courts discretion to award attorney fees, guided by economic disparity and other relevant factors.

Gomez v. Gomez · filed 1995-04-20(A)

The award of attorney fees under Section 40-4-7(A) rests within the sound discretion of the trial court. Gilmore v. Gilmore, 106 N.M. 788, 792, 750 P.2d 1114, 1118 (Ct.App.), cert. denied, 107 N.M. 16, 751 P.2d 700 (1988). That discretion is not unrestrained, however, see Roberts, 117 N.M. at 301, 871 P.2d at 397, and the trial court, in determining whether to award attorney fees, should consider various factors, including the most important one of economic disparity between the parties.

Section 40-4-7(A) permits an award of attorney’s fees on appeal in a marriage dissolution case.

Walentowski v. Walentowski · filed 1983-11-30(A)

The request for attorney’s fees for this appeal is granted for the sum of $1200.00 pursuant to NMSA 1978, Section 40-4-7(A) (Repl.Pamp.1983).

Section 40-4-7(A) authorizes awards for proceeding expenses, including fees incurred on appeal, to ensure efficient preparation and presentation of a case.

Hester v. Hester · filed 1984-01-10(A)

NMSA 1978, Section 40-4-7(A) (Repl. Pamp.1983) authorizes the court to make an order relative to the expenses of the proceedings that will insure an efficient preparation and presentation of the case. That section applies to costs and fees incurred on appeal.

Section 40-4-7(A) permits an award of attorney’s fees for an appeal in a dissolution case.

Russell v. Russell · filed 1984-01-12(A)

The request for respondent’s attorneys fees for this appeal is granted in the amount of $1500.00 pursuant to NMSA 1978, Section 40-4-7(A) (Rep.Pamp.1983).

Section 40-4-7(A) authorizes attorney’s fees and costs on appeal in domestic relations cases, with the parties’ economic disparity a consideration.

Wolcott v. Wolcott · filed 1984-08-23(A)

This court has authority under NMSA 1978, Section 40-4-7(A) (Repl.Pamp. 1983) to award attorney’s fees and costs on appeal in a domestic relations case. Miller v. Miller, 96 N.M. 497, 632 P.2d 732 (1981). One consideration in awarding costs and fees is the economic disparity between the parties. Hurley v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980). Here the husband earns in excess of $100,000 a year while the wife receives only alimony and child support and has no outside income. The husband is ordered to pay wife the sum of $1,500 attorney’s fees plus the costs of this appeal.

Section 40-4-7(A) permits a court to consider a party's obstructive conduct when awarding attorney's fees in a dissolution proceeding, so long as the award does not duplicate a discovery sanction.

Hakkila v. Hakkila · filed 1991-03-21(A)

So long as an award under Section 40-4-7(A) does not duplicate a sanction imposed for discovery abuse, obstructive behavior of a party during litigation is an appropriate factor for consideration in making such an award.

Section 40-4-7(A) requires consideration of the parties’ relative ability to pay when awarding litigation costs.

Newhouse v. Chavez · filed 1988-12-06(A)

In particular, we find no evidence in the record of the relative ability of the parties to pay for “efficient preparation and presentation of the case.” § 40-4-7(A).

Section 40-4-7(A) permits a court awarding divorce litigation fees to consider a spouse's access to family-funded resources during the case, even if a third party controls those resources.

Monsanto v. Monsanto · filed 1995-04-20(A)

Thus, under Section 40-4-7(A), the determination of whether to grant an award of attorneys' fees and the amount of such award is within the discretion of the trial court and will be reviewed only to determine whether there has been an abuse of discretion. ... The trial court properly considered the economic disparity between Husband and Wife and the parties' access to financial resources when making its attorneys' fee award. We thus determine there was no abuse of discretion.

Section 40-4-7(A) permits attorney fees needed for efficient preparation and presentation of a case, with economic disparity between the parties the most important factor in deciding an award.

Alverson v. Harris · filed 1996-12-18(A)

The statute authorizing an award of attorney fees contemplates such fees as necessary to ensure “an efficient preparation and presentation of [the] ease.” NMSA 1978, § 40-4-7(A) (Repl.Pamp.1994). The most important factor the trial court considers in deciding whether to award attorney fees is “economic disparity between the parties.” Gomez v. Gomez, 119 N.M. 755, 759, 895 P.2d 277, 281 (Ct.App.1995). ... Under these facts and circumstances, we hold that the trial court’s award of $5,956.39 in attorney fees to Petitioner did not constitute an abuse of discretion.

Section 40-4-7(A) gives the district court discretion to award attorney fees in dissolution proceedings.

Bustos v. Bustos · filed 2000-03-27(A)

The district court does, of course, have discretion to award attorney fees. See NMSA 1978, § 40-4-7(A) (1997); Herrera v. Herrera, 1999-NMCA-034, ¶ 19, 126 N.M. 705, 974 P.2d 675. ... We are not prepared to hold that the court abused its discretion in denying Mother attorney fees.

Section 40-4-7(A) permits an attorney fee award in a domestic relations proceeding to help a party prepare and present the case adequately.

Quintana v. Eddins · filed 2001-12-12(A)

The trial court’s award of $15,000 to Mother appears to have taken into account the disparity in the parties’ savings, acknowledged that Mother had the resources to pay the initial $17,000 from her savings, and required Father to pay Mother’s remaining attorney fees to insure Mother an adequate presentation of her case. See § 40-4-7(A). Under these circumstances, we conclude that the trial court did not abuse its discretion in ordering Father to pay the remaining $15,000 owed for Mother’s attorney fees.

Section 40-4-7(A) permits a court to consider awarding attorney fees incurred in related custody litigation in another state.

Bursum v. Bursum · filed 2004-10-28(A)

Therefore, we hold that the district court had jurisdiction to consider an award of attorney fees for the California litigation under Section 40-4-7(A) and the Rule 1-127 guidelines set forth above.

Section 40-4-7(A) gives the trial court discretion over whether to award attorney fees and how much to award, subject to review for abuse of discretion.

Grant v. Cumiford · filed 2005-03-31(A)

Under NMSA 1978, § 40-4-7(A) (1997), “the determination of whether to grant an award of attorneys’ fees and the amount of such award is within the discretion of the trial court and will be reviewed only to determine whether there has been an abuse of discretion.” Monsanto v. Monsanto, 119 N.M. 678, 681, 894 P.2d 1034, 1037 (Ct.App.1995).

Section 40-4-7(A) gives the court discretion to award expenses that help a party prepare and present a dissolution case.

Muse v. Muse · filed 2008-11-13(A)

Section 40-4-7(A) by its terms grants discretion by authorizing, but not requiring, a court pursuant to an order to assist a party “relative to the expenses of the proceeding” to ensure “efficient preparation and presentation” of a case.

Section 40-4-7(A) gives the district court discretion to award proceeding expenses so either party can efficiently prepare and present a case.

Harrison v. Harrison · filed 2011-01-28(A)

Under NMSA 1978, Section 40-4-7(A) (1997), the district “court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his case.” ... On the facts above, we cannot hold that the district court abused its discretion in refusing to award attorney’s fees. It clearly considered Husband’s arguments, found that there was a good faith reason for Wife’s delay, and concluded that an award of attorney’s fees was unnecessary.

Section 40-4-7(A) permits an award of attorney fees that supports a party’s efficient preparation and presentation of a domestic relations case.

Benavidez v. Pino · filed 2012-01-27(A)

NMSA 1978, Section 40-4-7(A) (1997) allows the district court to “make an order, relative to the expenses of the [domestic relations] proceeding, as will ensure either party an efficient preparation and presentation of his [or her] case.” ... Moreover, the amount of attorney fees awarded goes directly to Father’s “efficient preparation and presentation of his case,” including his defense to Mother’s apparently unfounded domestic violence allegations, and the necessity of Father’s filing of motions for the purpose of requiring Mother to do what she was already required to do under the orders of the district court.

Section 40-4-7(A) authorizes a court to award litigation expenses in a dissolution proceeding so either party can prepare and present a case effectively.

Torres v. Torres · filed 2012-05-10(A)

Under Section 40-4-7(A), the district court is authorized to “make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his [or her] case.” Bursum, 2004-NMCA-133, ¶ 10 (alteration in original) (internal quotation marks and citation omitted). ... Absent the showing of error, and given the broad discretionary authority of the district court to assess the expenses of domestic relations litigation, we affirm the district court’s award of attorney fees to Wife.

Section 40-4-7(A) allows a court to award attorney fees and costs in a domestic relations case to ensure efficient preparation and presentation of a party’s case.

Gonzales v. Shaw · filed 2018-07-17(A)

NMSA 1978, Section 40-4-7(A) (1997) authorizes the district court to award attorney fees and costs related to the preparation and presentation of a domestic relations case, providing that: ... Under these circumstances, we conclude that the district court’s decision to award Petitioner attorney fees and costs was a proper exercise of its discretion in accordance with Rule 1-127, the purpose of insuring each party efficient case preparation and presentation, and therefore not an abuse of discretion.

Section 40-4-7(A) allows an attorney’s fee award based on all work performed in a divorce case.

Welch v. Welch · filed 2018-08-06(A)

That concern is not present here, where pursuant to Section 40-4-7(A) an attorney’s fee award is based on all of the work performed in the divorce case.

Section 40-4-7(A) permits an award of attorney fees on appeal in a custody proceeding.

Seipert v. Johnson · filed 2003-07-29(A)

We award Mother attorney fees of $4000 under NMSA 1978, § 40-4-7(A) (1997) and Rule 12-403(B)(3) NMRA 2003.

Section 40-4-7(A) permits an award of attorney fees for a divorce appeal, with the district court determining the amount based on the parties’ circumstances.

McNallen v. McNallen · filed 2012-09-28(A)

In the case before us, statutory authority exists for the award of attorney fees. See NMSA 1978, § 40-4-7(A) (1997) (“The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his case.”); ... We conclude that Wife is entitled to attorney’s fees for the costs associated with Husband’s appeal.

Section 40-4-7(A) permits attorney fees on appeal in a dissolution case; economic disparity, need, and ability to pay guide the award.

Baca v. Baca · filed 2013-07-02(A)

Here, attorney fees are permitted by statute. See § 40-4-7(A) (“The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his case.”); ... We conclude that an award of attorney fees on appeal from Petitioner to Respondent is warranted.

Section 40-4-7(A) does not authorize an award of attorney fees against an intervening third party in a divorce case.

Garcia v. Jeantette · filed 2003-09-23(A)

We hold that, in a divorce case, Section 40-4-7(A) does not authorize an award of attorney fees against an intervening third party.

An attorney fee award under Section 40-4-7(A) requires more than economic disparity; the court must also find that the other spouse can pay.

Madden v. Smith · filed 2020-04-13(A)

But economic disparity is not all that is needed for a Section 40-4-7(A) award; also needed is a finding of Smith’s ability to pay.

Section 40-4-7(A) permits attorney fees to address financial disparity between divorcing parties, and the district court need not document every factor considered in making an award.

Estep v. Estep · filed 2020-09-08(A)

We disagree with Husband’s implication that all the Gomez factors must be considered and documented in findings of fact and conclusions of law by the district court. As the court noted, economic disparity is listed as the “most important” factor, and our review of the record reveals that the district court adequately weighed and considered factors beyond economic disparity to satisfy the boundaries contemplated by our case law. Accordingly, we hold that the district court did not err in awarding attorney fees.

Section 40-4-7(A) permits a district court to award attorney fees and costs for preparing and presenting a domestic relations case.

Lopez v. Gonze · filed 2024-11-18(A)

Under NMSA 1978, Section 40-4-7(A) (1997), the district court may award attorney fees and costs related to the preparation and presentation of a domestic relations case. ... Therefore, we affirm the district court’s grant of fees in the First and Second Orders.

Section 40-4-7 does not give a divorce court continuing jurisdiction to enforce a later contract changing how a property division judgment is satisfied.

Higginbotham v. Higginbotham · filed 1979-01-11

The new contract to satisfy the judgment is not subject to the jurisdiction of the district court where its enforcement is raised in the divorce case. Section 39-1-1, N.M.S.A.1978 (Formerly § 21-9-1, N.M.S.A.1953 (Repl. 1970)) provides for final judgments to remain under the control of the court for a period of thirty days. The exceptions to this rule contained in § 40-4-7, N.M.S.A. 1978 (Formerly § 22-7-6, N.M.S.A.1953 (Supp.1975)) and N.M.R.Civ.P. 60(b), N.M.S. A.1978 (Formerly § 21-l-l(60)(b), N.M.S.A. 1953) do not apply to the facts in this case.

Section 40-4-7(C) permits later modification of child custody, child support, or alimony, but does not authorize modification of vested property rights.

Mendoza v. Mendoza · filed 1985-08-29(C)

After the expiration of the time within which to appeal a decree awarding a divorce, allocating responsibility for community debts, and declaring the interests of the parties in the property acquired during marriage, the court in the original proceeding loses jurisdiction to modify the decree except under the provisions of Rule 60(b), or where relief is sought to modify child custody, child support, or alimony pursuant to NMSA 1978, Section 40-4-7(C) (Repl. Pamp.1983).

Section 40-4-7 governs how a trial court may divide property to provide spousal or child support.

Trego v. Scott · filed 1998-04-28

His reading of Section 40-4-7 is too broad, as that statute concerns how the trial court may divide property to provide spousal support and child support. It has no application to this ease.

Section 40-4-7 authorizes a district court with jurisdiction to dissolve a marriage to decide related matters, including property division.

Garcia v. Gutierrez · filed 2008-07-08

Once the district court determines that it has jurisdiction to dissolve the marriage under Section 40-4-5, it is also authorized to make decisions regarding child custody, the division of property, and other issues related to the dissolution. NMSA 1978, § 40-4-7 (1997).