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Styka v. Styka11/19/1998
{1} Petitioner Phillip E. Styka (Father) appeals from the trial court's decree dissolving his marriage to Respondent Jane H. Styka (Mother), dividing the community property, and determining child support. Petitioner raises several issues on appeal involving only the child support determination, which he has argued as six separate issues. We have restructured the issues in a different order and format and consolidated them as three issues and several subissues for purposes of Discussion.
{2} The first issue relates to Mother's income. Father argues that the trial court erred in determining Mother's income for purposes of calculating child support, by failing to (1) fully take into account the in-kind benefit that Mother receives from living in a residence for which she pays neither rent nor a mortgage; (2) take into account as other income the annual gift of $10,000 Mother receives from her father and other substantial but irregular gifts or lump sum trust corpus distributions Mother has received during the course of the marriage; (3) impute income to Mother based on a reasonable rate of return on the cash assets Mother received in the divorce proceeding; and (4) impute potential income to Mother based on full-time employment.
{3} The second issue concerns the costs of child care. Father disputes the trial court's determination that his child care expense was erroneous, as well as the court's imputation of child care expenses to Mother.
{4} The third issue involves certain private school expenses. Father contends that the trial court erred in including private school tuition in its calculation of child support.
{5} This appeal presents us with several questions of first impression concerning the meaning of NMSA 1978, ยง 40-4-11.1 (1995). We affirm the trial court on all issues except the issue of imputation of return on cash assets and income to Mother and the issue of Father's child care costs.
I. FACTUAL AND PROCEDURAL BACKGROUND
{6} Father and Mother were married in 1987. They separated on April 9, 1996, and Father filed a petition for dissolution of marriage and custody of the children on the following day. There are two children of the marriage, a son and a daughter. At the time the parents separated, their son was six years old and their daughter was four years old.
{7} Father is an anesthesiologist. Mother holds a degree in pharmacy and is licensed to practice pharmacy in New Mexico. By stipulation, Mother and Father have joint legal custody of their children, with each parent having physical custody of the children 50% of the time. As a practical matter, the children spend alternate weeks with each parent. At the time of trial, both children were enrolled at a private school pursuant to an interim stipulation. The son was in first grade and the daughter attended a pre-kindergarten program. During the school year, the children were in school from 8:00 a.m. to 3:15 p.m. However, the parties agreed that this interim order did not resolve the question of whether the children should attend public or private school. Additional facts are included in our Discussion of the issues.
II. DISCUSSION
A. Standard of Review
{8} The setting of child support is within the trial court's discretion and is reviewed on appeal only for an abuse of that discretion. See . The trial court's discretion, however, must be exercised in accordance with the child support guidelines. See (reversing trial court's deviation from the guidelines because the trial court did not exercise its discretion in the manner required by statute); ) (discussing trial court's exercise of discretion under NMSA 1978
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