{ "id": 1575519, "name": "Isabel DURAN, Appellant, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES, INCOME SUPPORT DIVISION, Appellee", "name_abbreviation": "Duran v. New Mexico Department of Human Services", "decision_date": "1980-03-04", "docket_number": "No. 4350", "first_page": "196", "last_page": "202", "citations": [ { "type": "official", "cite": "95 N.M. 196" }, { "type": "parallel", "cite": "619 P.2d 1240" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "95 N.M. 188", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575439 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nm/95/0188-01" ] }, { "cite": "86 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824364 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0388-01" ] }, { "cite": "382 U.S. 341", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179058 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/382/0341-01" ] }, { "cite": "197 N.W.2d 192", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10770496 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nw2d/197/0192-01" ] }, { "cite": "89 N.M. 606", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2863893 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0606-01" ] }, { "cite": "15 Ariz. 200", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4815225 ], "weight": 2, "year": 1914, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ariz/15/0200-01" ] }, { "cite": "148 Fla. 23", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1975980 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/fla/148/0023-01" ] }, { "cite": "91 N.M. 339", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571027 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0339-01" ] }, { "cite": "185 P. 780", "category": "reporters:state_regional", "reporter": "P.", "year": 1919, "opinion_index": 0 }, { "cite": "25 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4736487 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nm/25/0459-01" ] }, { "cite": "282 U.S. 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931731 ], "weight": 3, "year": 1930, "opinion_index": 0, "case_paths": [ "/us/282/0127-01" ] }, { "cite": "282 U.S. 122", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931702 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/us/282/0122-01" ] }, { "cite": "51 S.Ct. 62", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6931673, 6931702 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/us/282/0118-01", "/us/282/0122-01" ] }, { "cite": "282 U.S. 118", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931673 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/us/282/0118-01" ] }, { "cite": "176 U.S. 484", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5705018 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/176/0484-01" ] }, { "cite": "282 U.S. 101", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931648 ], "weight": 3, "year": 1930, "opinion_index": 0, "case_paths": [ "/us/282/0101-01" ] }, { "cite": "397 U.S. 552", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12055392 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0552-01" ] }, { "cite": "439 U.S. 572", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11331576 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/439/0572-01" ] }, { "cite": "45 C.F.R., \u00a7 233.90", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "603 F.2d 810", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1440720 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/603/0810-01" ] }, { "cite": "94 N.M. 288", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573039 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0288-01" ] }, { "cite": "45 C.F.R., \u00a7 233.90", "category": "laws:admin_compilation", "reporter": "C.F.R.", "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 1 }, { "cite": "603 F.2d 810", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1440720 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/f2d/603/0810-01" ] }, { "cite": "94 N.M. 288", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573039 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/94/0288-01" ] } ], "analysis": { "cardinality": 843, "char_count": 18952, "ocr_confidence": 0.812, "pagerank": { "raw": 1.1940366107981016e-07, "percentile": 0.5920316203763231 }, "sha256": "44f548f9a107c361d8fbcb686ce95eaddbd2fd2fbd06ade176147a2232e0f93b", "simhash": "1:8221078c769cd5c3", "word_count": 3141 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ANDREWS, J., concurs.", "HERNANDEZ, J., dissents." ], "parties": [ "Isabel DURAN, Appellant, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES, INCOME SUPPORT DIVISION, Appellee." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nMrs. Duran appeals from an administrative denial of her application, on behalf of her one dependent child, for aid to families with dependent children (AFDC) benefits.\nFACTS\nIsabel Duran is married to Mr. Duran. Mrs. Duran\u2019s daughter Jessica, a minor child of a former marriage, lives with Mr. and Mrs. Duran. Mr. Duran has employment income. They also have income from rental property. The State used one-half of all income in computing need. On this basis income exceeded the permissible limits. Benefits were denied.\nThe sole issue presented to this court is the validity of New Mexico\u2019s method of calculating income available for the child\u2019s support. In calculating a child\u2019s eligibility for AFDC benefits, the New Mexico Department of Human Services Manual, \u00a7 221.832, states in part:\nA. Availability of Income-In determining whether the budget group is eligible for AFDC on the condition of need, income currently received by members of the household is considered available to the budget group in the amounts specified below. . . .\n1. Division of Income between Spouses -In keeping with the State\u2019s community property law, one half {lh) the community property income of spouses is considered available to each spouse when they live together. The separate income of a spouse is considered available only to that spouse....\nAll income received by the spouses will be considered community income, unless the client can demonstrate, to the worker\u2019s satisfaction, that it is separate income.\n2. Income of a Parent -When children and their parent(s) live together, the income of the parent(s) is considered to be available to the budget group which includes that parents\u2019 [sic] dependent children. . . . The amount of income available is that which remains after the deduction of the maintenance allowances described in paragraph 5 below.\nBARELA AND NOLAN\nTwo earlier cases have interpreted this precise issue. See Barela v. New Mexico Department of Human Services, Income Support Division, 94 N.M. 288, 609 P.2d 1244 (Ct.App.1979), cert. denied December 14, 1979; Nolan v. de Baca, 603 F.2d 810 (10th Cir. 1979). Both of these cases found the New Mexico rule to be in violation of the relevant federal regulation, 45 C.F.R., \u00a7 233.90(a), and, therefore, invalid under the supremacy clause. That section states in part:\n(a) State plan requirements. A State plan under title IV-A of the Social Security Act shall provide that:\n(1) The determination whether a child has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, .. . will be made only in relation to the child\u2019s natural or adoptive parent, or in relation to the child\u2019s stepparent who is ceremonially married to the child\u2019s natural or adoptive parent and is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children....\nIn establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent described in the first sentence of this paragraph will be considered available for children in the household in the absence of proof of actual contributions;\nWe believe both cases have misinterpreted the focus of New Mexico\u2019s regulation. In Barela the court viewed the New Mexico regulation as presuming that one-half of the wage earner\u2019s income was available to the support of the stepchild, even though no legal duty to support the stepchild exists. The court went on to state that in the absence of actual proof of stepparent\u2019s income being made available to the child, the regulation was impermissible. Relying on Hisquierdo v. Hisquierdo, 439 U.S. 572, 59 L.Ed.2d 1, 99 S.Ct. 802 (1979), Barela said that, since the New Mexico regulation is contrary to and serves to subvert federal regulations, it must fall.\nTwo basic considerations underlying the Barela decision are: (1) that the income being presumed available for the support of the child is the income of the wage-earner\u2019s stepfather as opposed to that of the mother; and (2) that reaching income earned by the stepfather is contrary to and subverts important federal policy.\nThe Nolan case is similarly based on the same assumptions. In Nolan the court adopted the following finding of the trial court: \u201c \u2018it is agreed in the present action that the income in question is that of plaintiff\u2019s husband ...\u2019\u201d. The court then continued to develop the policy basis underlying its federal preemption argument.\nNolan cited 45 C.F.R., \u00a7 233.90(a), and the United States Supreme Court\u2019s decision in Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970), for the proposition that \u201cparent\u201d within the meaning of the federal regulations is limited to one against whom the child would be able to initiate a legal action to enforce that person\u2019s duty to support the child. The court concluded that, since the New Mexico regulation is contrary to an important federal policy, under Hisquierdo the regulation must fall. Nolan also argued that the State\u2019s position on the definition of income was merely a technical argument and as a practical matter failed to distinguish itself from the presumptions struck down in Lewis, which held that the income from a \u201cman-in-the-house\u201d could not be presumed available for the child\u2019s support.\nFEDERAL CONCEPT OF COMMUNITY PROPERTY INCOME\nIn Poe v. Seaborn, 282 U.S. 101, 75 L.Ed. 239, 51 S.Ct. 58 (1930), the Supreme Court stated:\nWithout further extending this opinion it must suffice to say that it is clear the wife has, in Washington, a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both. A description of the community system of Washington and of the rights of the spouses, and of the powers of the husband as manager, will be found in Warburton v. White, 176 U.S. 484 [20 S.Ct. 404, 44 L.Ed. 555],\nThe taxpayer contends that if the test of taxability under Sections 210 and 211 is ownership, it is clear that income of community property is owned by the community and that husband and wife have each a present vested one-half interest therein.\nThe obligations of the husband as agent of the community are no less real because the policy of the State limits the wife\u2019s right to call him to account in a court. Power is not synonymous with right. Nor is obligation coterminous with legal remedy. The law\u2019s investiture of the husband with broad powers, by no means negatives of the wife\u2019s present interest as a co-owner.\nWe are of opinion that under the law of Washington the entire property and income of the community can no more be said to be that of the husband, than it could rightly be termed that of the wife.\nThis same result was reached with regard to other community property states by the United States Supreme Court. See Goodell v. Koch, 282 U.S. 118, 51 S.Ct. 62, 75 L.Ed. 247 (1930) [Ariz. law]; Hopkins v. Bacon, 282 U.S. 122, 51 S.Ct. 62, 75 L.Ed. 249 (1930) [Tex. law]; and Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252 (1930) [La. law]. In Hopkins the Supreme Court explained its holdings in all four cases as resting on whether the wife has \u201ca proprietary vested interest in the community property,\u201d\nNEW MEXICO\u2019S CONCEPT OF COMMUNITY PROPERTY INCOME\nNew Mexico has long recognized that its community property system grants the wife a present proprietary interest in the income of the community. In Beals v. Ares, 25 N.M. 459, 185 P. 780 (1919), the Supreme Court stated that New Mexico\u2019s community property law \u201cclearly recognizes an existing, present interest [in the income of the community] in the wife during the existence of the matrimonial status.\u201d Beals went on to state:\nFrom the foregoing, the following propositions may be accepted as settled:\n1. That under the law in this jurisdiction, the wife\u2019s interest in the community property is equal with that of the husband; that while he is by statute made the agent of the community and given dominion and control over the community property during the continuance of the marriage relation, his interest in the property by reason of such fact is not superior to that of his wife.\nSee also Swihart on New Mexico\u2019s longstanding commitment to the proposition of equal ownership by the spouses in \u201cFederal Taxation of New Mexico Community Property,\u201d 3 Natural Resources Journal, 104, 113-116 (1963-1964).\nIn Hughes v. Hughes, 91 N.M. 339, 573 P.2d 1194 (1978), our Supreme Court stated:\nThe reasonableness of community ownership of marital property has been recognized by courts in non-community property states. It has been rightfully held that, viewed solely as a matter of economy, the labor, pain, and drudgery required of the mother in sustaining the home, giving birth to and rearing the children will often more than offset the contribution of the father to the family budget. In Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727, 728 (1941) the court wistfully pointed out:\nIn the southwest, where community property is recognized, the husband and wife share equally in all property accumulated during coverture. There is a perfectly sound basis for this rule and it will be applied in this State when the circumstances warrant.\n* * \u2021 * * *\nUnder community property law no distinction is made between husband and wife in respect to the right each has in the community property. The husband receives no higher or better title than does the wife. The plain public policy that this law expresses is that the wife shall have equal rights and equal dignity and shall be an equal benefactor in the matrimonial gain. \u201cIt is altogether fitting and proper that woman should be thus esteemed by the law in fixing her status if she is to be considered in fact as well as in theory an essential factor in the economy of the marital community.\u201d La Tourette v. La Tourette, 15 Ariz. 200, 137 P. 426, 428 (1914).\nFurther, New Mexico\u2019s commitment to equal ownership of community assets is based upon a constitutional mandate. This is expressly recognized in \u00a7 40-3-7, N.M.S. A.1978, which states:\n40-3-7. Purpose of act.\nThe purpose of the Community Property Act of 1973 [40-3-6 to 40-3-17 NMSA 1978] is to comply with the provisions of Section 18 of Article 2 of the constitution of New Mexico, as it was amended in 1972 and became effective on July 1, 1973, by making the provisions of the community property law of New Mexico apply equally to all persons regardless of sex.\nTherefore under the standards announced by the United States Supreme Court in Poe and Hopkins, the wife has income equal to one-half the total community income regardless of what proportion of that income is actually paid to that spouse in the form of wages or rents. Under this standard Mrs. Duran clearly has income equal to one-half the community income.\nCHILD\u2019S LEGAL RIGHT TO REACH INCOME\nAs the court stated in Nolan, the crux of the matter is not whether under some legal technicality you can describe the wife as having an income equal to one-half the community income. The issue is whether the child has a means of enforcing the obligation of support to the extent of the value presumed to be available. In short, 45 C.F.R., \u00a7 233.90(a), and Lewis hold that a state may not presume money to be available for a child\u2019s support if the child cannot legally force that money to be applied to his or her support. The heart of the Barela decision and that in Nolan is that the child in New Mexico has no legal right to enforce the presumed support against the income earned by the stepfather. Therefore, the sole question is whether Jessica Chavira can force the income being credited to her mother for her support to be used for that support.\nIt is undisputed that the natural parent, Mrs. Duran, has an obligation to support her daughter, Jessica. Adoption of Doe, 89 N.M. 606, 555 P.2d 906 (Ct.App. 1976). It appears equally clear that Jessica could obtain a judgment forcing Mrs. Duran to adequately support her. Section 40-3-10 A, N.M.S.A.1978, sets the priorities for satisfaction of separate debts:\nA. The separate debt of a spouse shall be satisfied first from the debtor spouse\u2019s separate property, excluding that spouse\u2019s interest in property in which each of the spouses owns an undivided equal interest as a joint tenant or tenant in common. Should such property be insufficient, then the debt shall be satisfied from the debtor spouse\u2019s one-half interest in the community property or in property in which each spouse owns an undivided equal interest as a joint tenant or tenant in common, excluding the residence of the spouses. Should such property be insufficient, then the debt shall be satisfied from the debtor spouse\u2019s interest in the residence of the spouses, except as provided in Section 42-10-9 NMSA 1978. Neither spouse\u2019s interest in community property or separate property shall be liable for the separate debt of the other spouse. (Emphasis added.)\nTherefore, Mrs. Duran does not only have a technical income resulting from her one-half share in the community income, but that one-half share in the community income provides the legal basis for her daughter\u2019s legitimate claim on that one-half interest in the community income.\nIn Barela the court cites Kelley v. Iowa Department of Social Services, Iowa, 197 N.W.2d 192 (1972). In Kelley the court allowed the Iowa Department of Social Services to presume money earned by that stepfather to be available for the support of the stepdaughter because the stepdaughter could make a legal claim on those funds. Similarly, in the instant case the State should be permitted to presume that one-half of Mr. Duran\u2019s income, Mrs. Duran\u2019s interest in the community income, is available for the support of Jessica because Jessica can also make a legal demand on that sum of money because of a duty to support. See Adoption of Doe, supra.\nAppellant\u2019s reliance on Hisquierdo is misplaced. In Hisquierdo the community property rules of the State of California served to provide the wife with an interest that was expressly forbidden by statute. In the instant case there is no such conflict with federal regulations or statutes. The New Mexico rule serves to fulfill the policy considerations expressed within 42 U.S.C., \u00a7 602(a)(7), which provides in part:\n(a) A State plan for aid and services to needy families with children must ... (7) except as may be otherwise provided in clause (8), provide that the State agency shall, in determining need, take into con-' sideration any other income and resources of any child or relative claiming aid to families with dependent children, ....\nWhere a parent has income that is available for the support of the child it is inappropriate for the State not to count that income for the child\u2019s support. To say that one-half of the community income is not available to the wife to support the wife\u2019s child is to similarly deny the wife\u2019s right to one-half the community interest for any reason. Barela is contrary to long-established New Mexico law which grants the wife a present one-half interest in the income earned by the community. Beals, supra; Hughes, supra; and Swihart, \u201cFederal Taxation of New Mexico Community Property,\u201d supra.\nA final important policy consideration was explained in United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966) when the court stated:\nWe decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here. Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with- respect for such state interests, will suffer major damage if the state law is applied.\nEach State has its complex of family and family-property arrangements. There is presented in this case no reason for breaching them....\nUnder the facts of this case there is no reason for breaching the State\u2019s \u201ccomplex of family and family-property arrangements.\u201d\nThe two- basic assumptions upon which Nolan and Barela were based are incorrect. New Mexico\u2019s regulation \u00a7 221.832 is not in conflict with federal policy. That policy mandates that this rule be upheld. Equally, if not more important, is the undermining effect the Barela decision has on New Mexico\u2019s long-standing view of community property rights, which has been recently reaffirmed in Hughes. Barela mistakenly interpreted the law and is accordingly overruled. See State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct.App.1974).\nThe decision of the New Mexico Department of Human Services, Income Support Division, is affirmed.\nIT IS SO ORDERED.\nANDREWS, J., concurs.\nHERNANDEZ, J., dissents.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "HERNANDEZ, Judge\n(dissenting).\nI respectfully dissent.\nThe decision of the Department should be reversed on the basis of Barela v. New Mexico Department of Human Services, 94 N.M. 288, 609 P.2d 1244 (Ct.App.1979), cert. denied December 14, 1979, and Nolan v. de Baca, 603 F.2d 810 (10th Cir. 1979).\nThe relevant HEW regulation, 45 C.F.R., \u00a7 233.90(a)(1), provides in part:\nIn establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent described in the first sentence of this paragraph will be considered available for children in the household in the absence of proof of actual contributions; .... [Emphasis added.]\nWhile the regulation clearly permits a state to consider the income of the natural or adoptive parent in computing AFDC assistance, it is my opinion, based on the above cited provision, that it is the intent of the federal regulation that only actual income be computed. While a spouse has a present proprietary interest in one-half of the community income under New Mexico community property law, this legal concept of income does not necessarily mean that the spouse has actual income. The New Mexico regulation makes an impermissible assumption of actual income.", "type": "dissent", "author": "HERNANDEZ, Judge" } ], "attorneys": [ "Gary J. Martone, Albuquerque, for appellant.", "Jeff Bingaman, Atty. Gen., Robert N. Hilgendorf, Deputy Atty. Gen., Gordon L. Bergman, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "619 P.2d 1240\nIsabel DURAN, Appellant, v. NEW MEXICO DEPARTMENT OF HUMAN SERVICES, INCOME SUPPORT DIVISION, Appellee.\nNo. 4350.\nCourt of Appeals of New Mexico.\nMarch 4, 1980.\nSee also, 95 N.M. 188,619 P.2d 1232.\nGary J. Martone, Albuquerque, for appellant.\nJeff Bingaman, Atty. Gen., Robert N. Hilgendorf, Deputy Atty. Gen., Gordon L. Bergman, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0196-01", "first_page_order": 228, "last_page_order": 234 }