 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 MARY ANN ORTIZ,

 8          Petitioner-Appellee,

 9 v.                                                                           NO. 28,392

10 DONALD J. ORTIZ,

11          Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Barbara J. Vigil, District Judge

14   Sutin, Thayer & Browne
15   Kerry Kiernan
16   Twila B. Larkin
17   Albuquerque, NM

18 for Appellee

19 Narvaez Law Firm, P.A.
20 Martin R. Esquivel
21 Albuquerque, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 KENNEDY, Judge.
 1        Donald Ortiz (Husband) appeals a district court order establishing the amount

 2 of child support he must pay to Mary Ann Ortiz (Wife). In setting the amount of

 3 support, the court first considered both parties’ gross income in accordance with state

 4 guidelines and concluded that Wife owed Husband $7,400. See NMSA 1978, § 40-4-

 5 11.1 (1995). In reaching this figure, it considered several gifts received by Husband

 6 against his gross income; then, offsetting the amount owed by Wife to Husband, the

 7 court found that Husband owed Wife $70,000 pursuant to a prenuptial agreement

 8 which required him to pay a predetermined amount of child support in the event of

 9 dissolution. Husband argues that the enforcement of a prenuptial child support term

10 of this type violates public policy by allowing parties to circumvent the district court’s

11 authority. He also contends that the court improperly considered the gifts he received

12 against his gross income.

13        We affirm in part and reverse in part the order of the district court, holding that

14 (1) the court was within its discretion to deviate from Section 40-4-11.1 based on the

15 prenuptial agreement because it did so in writing and in conjunction with a calculation

16 of the parties’ gross income under Section 40-4-11.1; and (2) the court improperly

17 included irregular gifts in calculating Husband’s income. We remand to the district

18 court for a recalculation of child support consistent with this opinion.

19 BACKGROUND




                                               2
 1        The parties were unmarried and living together when Child was born on

 2 November 17, 1988. Almost three years later, on May 14, 1991, they executed a

 3 prenuptial agreement and were married. In pertinent part, that agreement provides

 4               The parties further agree that in the event of the dissolution of the
 5        parties’ marriage in the future for any cause, or their separation,
 6        [Husband] agrees to pay child support in the amount of Five Hundred
 7        Dollars ($500) a month for the parties’ minor child . . . until age 21, or
 8        such higher amount as a court of competent jurisdiction may order.

 9 Wife’s uncontroverted testimony indicates that she agreed to this term in consideration

10 for waiving any claim upon various other property in the event of dissolution or

11 separation.

12        On March 19, 1998, Wife filed a petition for dissolution of marriage. In it, she

13 asked the court to determine child support “pursuant to the New Mexico Child

14 Support Guidelines” and made no mention of the prenuptial agreement. Husband filed

15 a response on April 22, 1998, and likewise asked the court to establish child support

16 in accordance with the guidelines. His response discussed the prenuptial agreement

17 in some detail, and despite his request that the court refuse to enforce the child support

18 term as violative of New Mexico public policy, he argued the continuing validity of

19 the terms relating to Wife’s waiver of claims to various real and personal property.

20 On December 23, 1999, the court issued an order dissolving the marriage and

21 reserving jurisdiction to set child support. Child was eleven years old at the time.




                                               3
 1        For the next several years, Husband and Wife shared custody of Child in

 2 various amounts and provided for Child according to an informal arrangement. After

 3 August 2003, Child began spending most of his time with Husband, and on May 23,

 4 2006, Husband filed a motion to establish child support. Husband argued that he had

 5 served as Child’s primary care-giver since the parties’ divorce. Wife had not been

 6 adequately providing for Child, he contended, and he asked the court to calculate child

 7 support according to state guidelines beginning at the time of the parties’ separation

 8 and ending at Child’s eighteenth birthday. In Wife’s response, she agreed that support

 9 should be established in accordance with the guidelines but disagreed with the basis

10 upon which it should be calculated. She argued that instead of beginning at the time

11 of separation, support should be calculated from the time of dissolution, and as an

12 “affirmative defense,” Wife asked the court to enforce the child support term in the

13 prenuptial agreement.

14        On September 19, 2007, and October 18, 2007, the district court held a trial on

15 the merits to adjudicate the proper amount of child and spousal support. It later issued

16 written findings of fact and conclusions of law, in which it calculated the gross income

17 of both parties in accordance with Section 40-4-11.1. Concluding that deviation from

18 a strict application of the guidelines was appropriate, the court factored-in four gifts

19 to Husband from his mother’s estate as income imputed to him: $20,000 in 2000,

20 $5,000 in 2002, $6,000 in 2004, and $11,000 in 2005. The court also concluded that

                                              4
 1 a deviation from the guidelines was proper given the validity of the prenuptial

 2 agreement between the parties.       Thus, calculating the amount owed under the

 3 agreement, the court concluded that Husband owed Wife $70,000 in back child

 4 support. Such amount, the court stated, should be offset against the $7,452 owed by

 5 Wife to Husband under the guidelines. Thus, Husband was ordered to pay Wife

 6 $62,548 in back child support.

 7        Husband appeals. He argues that the court improperly considered the prenuptial

 8 agreement in calculating the amount of child support owed to Wife. He also contends

 9 that the court improperly considered several irregular gifts against his gross income.

10 We analyze those issues below.

11 DISCUSSION

12 I.   Standard of Review

13        We generally review a district court’s determination of child support for abuse

14 of discretion. Styka v. Styka, 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16 (filed

15 1998). We observe, however, that its discretion “must be exercised in accordance

16 with the child support guidelines.” Id. Likewise, a district court abuses its discretion

17 when it incorrectly applies a standard, applies the wrong substantive law, or premises

18 a discretionary decision “on a misapprehension of the law.” Klinksiek v. Klinksiek,

19 2005-NMCA-008, ¶ 4, 136 N.M. 693, 104 P.3d 559 (filed 2004) (internal quotation

                                              5
 1 marks and citation omitted). Thus, to the extent we must determine questions of law,

 2 we do so de novo. Id. We also review the court’s findings of fact for substantial

 3 evidence. Styka, 1999-NMCA-002, ¶ 8.

 4        Prenuptial agreements are contracts. Lebeck v. Lebeck, 118 N.M. 367, 373, 881

 5 P.2d 727, 733 (Ct. App. 1994). Accordingly, the party who raises the agreement must

 6 establish its existence and terms. Id. If “the agreement appears [to be] fair and

 7 reasonable on its face, the party claiming the invalidity of the agreement, or a

 8 particular provision [thereof], bears the burden of establishing” that invalidity. Id.

 9 If, however, the agreement appears unfair on its face, the party who first raised it bears

10 the burden of proving its validity. Id. The trend is toward enforcing such agreements

11 “even if one party has given up all his or her rights in the property of the other.” Id.

12 at 374, 881 P.2d at 734.

13 II.    Consideration of the Parties’ Prenuptial Agreement

14        Husband argues that the district court improperly deviated from the guidelines

15 by choosing to enforce the child support provision in the prenuptial agreement. He

16 contends that Section 40-4-11.1 constitutes the exclusive means by which a court may

17 determine support, and any decision to enforce a child support agreement made in

18 advance contravenes those guidelines. Such a decision, Husband argues, would

19 likewise violate our state’s strong public policy favoring a district court’s ultimate

                                               6
 1 discretion in making support determinations.        On the facts before us, we are

 2 unpersuaded by Husband’s argument.

 3        To the extent as he asserts the child support guidelines as an absolute

 4 requirement, Husband is correct. See Grant v. Cumiford, 2005-NMCA-058, ¶ 25, 137

 5 N.M. 485, 112 P.3d 1142 (holding that in New Mexico, “the setting of child support

 6 is within the sound discretion of the district court, exercised in accordance with the

 7 child support guidelines”) (internal quotation marks and citation omitted). Those

 8 guidelines provide

 9        In any action to establish or modify child support, the child support
10        guidelines as set forth in this section shall be applied to determine the
11        child support due and shall be a rebuttable presumption for the amount
12        of such child support. Every decree or judgment of child support that
13        deviates from the guideline amount shall contain a statement of the
14        reasons for the deviation.

15 Section 40-4-11.1(A) (emphasis added). The statute’s imperative language gives the

16 district court no choice; it must apply and reach a conclusion under the guidelines. Id.

17 After reaching that conclusion, however, the court may deviate from the guidelines

18 so long as its reasons for doing so are made explicit in the decree or judgment. As the

19 subsequent section, NMSA 1978, § 40-4-11.2 (1989), commands, “[a]ny deviation

20 from the child support guideline amounts set forth in Section 40-4-11.1 . . . shall be

21 supported by a written finding in the decree, judgment or order of child support that


                                              7
 1 application of the guidelines would be unjust or inappropriate.” See Tedford v.

 2 Gregory, 1998-NMCA-067, ¶¶ 32-33, 125 N.M. 206, 959 P.2d 540 (holding that the

 3 district court must make specific findings of fact when it deviates from the

 4 guidelines). The district court is vested with ultimate discretion in setting the amount

 5 of child support so long as it supports any deviations from the guidelines with written

 6 findings. As such, any agreement to establish child support prior to dissolution is

 7 subject to judicial modification. See Spingola v. Spingola, 91 N.M. 737, 741, 580

 8 P.2d 958, 962 (1978).

 9        This policy is well-established in our caselaw and reflected in the Uniform

10 Premarital Agreement Act. NMSA 1978, § 40-3A-4(B) (1995). As our Supreme

11 Court held in Spingola, “[t]he rights of the children, as innocent third parties, are

12 involved in these agreements. To make such an agreement nonmodifiable would not

13 be in the best interests of the children and for this reason is . . . against the strong

14 public policy of New Mexico.” 91 N.M. at 741, 580 P.2d at 962. In addition to the

15 guidelines, a district court “may consider any other circumstances that bear on the

16 parents’ ability to provide needed support.” Id. at 744, 580 P.2d at 965; see In re

17 Adoption of John Doe, 98 N.M. 340, 346, 648 P.2d 798, 804 (Ct. App. 1982)

18 (“[m]arital separation agreements and agreements regarding child custody and

19 support, like judicial decrees awarding child custody and fixing an amount of child

                                              8
 1 support, are subject to modification by the court whenever substantial circumstances

 2 render such change proper and the best interests and welfare of the child[] so

 3 require”).

 4        This Court’s opinion in Ingalls v. Ingalls, 119 N.M. 85, 888 P.2d 967 (Ct. App.

 5 1994), weighed similar considerations to those now before us. In that case, husband

 6 pre-paid child support to wife and argued that he should receive credit for such pre-

 7 payments in the district court’s determination under the guidelines. The district court

 8 agreed and credited husband. Id. at 87, 888 P.2d at 969. On appeal, this Court

 9 reversed but nevertheless held that such prepayments may be considered by the

10 district court alongside the guidelines. Id. at 88-89, 888 P.2d at 970-71 (stating that

11 “an agreement between the parties, express or implied, to the effect that [h]usband

12 would ‘prepay’ child support in exchange for a reduction in such payments in the

13 future, coupled with actual payment in this manner, should receive serious

14 consideration by the trial court”). Yet, such agreements may not control the parties’

15 child support relationship absolutely. A “child’s present and future welfare takes

16 precedence over the rights of the court-designated payor and payee of child support

17 payments. Thus . . . child support payments are always subject to the further order of

18 the court.” Id. at 88, 888 P.2d at 970 (internal quotation marks and citation omitted).

19 “[P]arties cannot by their own private action bind the hand of the court[.]” Id. And

                                              9
 1 as the New Mexico Uniform Premarital Agreement Act provides, “[a] premarital

 2 agreement may not adversely affect the right of a child[.]” Section 40-3A-4(B); see

 3 Williams v. Williams, 109 N.M. 92, 99, 781 P.2d 1170, 1177 (Ct. App. 1989) (holding

 4 that “parties cannot agree to waive future child support obligations because this is a

 5 matter to be determined by the courts”).

 6        The district court in this case complied entirely with these principles. Foremost,

 7 we observe that the plain language of the prenuptial agreement places no limits on the

 8 amount of child support to be paid by Husband. It only provides a bottom threshold

 9 below which support may not fall. The term provides that in the event of separation,

10 Husband will pay Wife $500 per month “or such higher amount as a court of

11 competent jurisdiction may order.” We are aware of no rule that forbids a district

12 court from considering such language in conjunction with the statutory guidelines; in

13 fact, under our jurisprudence, a district court may legally consider language creating

14 an absolute maximum of support, so long as it does so in accordance with the

15 guidelines. What is more, the parties’ pleadings before the district court indicate their

16 agreement; both agree that the guidelines are the ultimate controlling authority with

17 regard to child support calculations. Their disagreement lies in how the prenuptial

18 agreement should be used in conjunction with those guidelines. Husband, on the one

19 hand, originally argued that the prenuptial agreement should be enforced insofar as

                                              10
 1 Wife expressly waived any claims to various real and personal property owned by

 2 him. Wife, on the other, argued as an affirmative defense that the child support term

 3 should also be considered. The district court agreed with Wife, and we hold it did not

 4 abuse its discretion when it did so.

 5        The above statutes and caselaw allow a district court to deviate from the

 6 guidelines as long as it determines the appropriate amount of support under the

 7 guidelines while clearly discussing the reasons for its deviation. The court below did

 8 that. It calculated the amount of support owed by Wife to Husband under the

 9 guidelines. It then found that “[t]he Prenuptial Agreement was validly executed and

10 . . . a binding contract.” Husband had the burden to demonstrate the unenforceability

11 of that contract, the court concluded, and he failed to do so. Thus, the amount owed

12 by Wife under the guidelines was offset by the amount owed by Husband under the

13 agreement. See Lebeck, 118 N.M. at 373, 881 P.2d at 733 (holding that the party who

14 asserts the invalidity of a prenuptial agreement bears the burden of establishing that

15 invalidity). Our policy gives courts the ultimate discretion to establish child support,

16 and the court in this case properly exercised that discretion. The district court was not

17 bound by the prenuptial agreement; but it considered the agreement as it evaluated a

18 deviation from the guidelines, as shown by the fact that it ordered an offset between

19 the result under the guidelines and the result under the prenuptial agreement.

                                              11
 1          We likewise reject Husband’s argument that the child support term was

 2 unenforceable because Wife failed to meet a condition precedent. He asserts that he

 3 and Wife entered into the term with the understanding that he would pay child support

 4 only if she remained Child’s primary caregiver; because Child spent the majority of

 5 his time with Husband, the term must therefore be invalid. Such a contention finds

 6 little support in the record. Admittedly, Wife’s testimony seems to indicate that she

 7 expected to receive child support and presumed that Child would live with her most

 8 of the time. But her testimony does not prove Husband’s contention that a bargain

 9 was struck. More persuasive is the plain language of the prenuptial agreement, which

10 does not condition Husband’s payment upon Child residing with Wife. We therefore

11 hold that substantial evidence supports the district court’s finding that Husband’s

12 promise to pay child support was unconditional.

13 III.     Consideration of Irregular Gifts Against Husband’s Gross Income

14          Husband received four gifts from his mother’s estate between 2000 and 2005.

15 He received $20,000 in 2000, $5,000 in 2002, $6,000 in 2004, and $11,000 in 2005.

16 The district court factored these into Husband’s gross income when it established

17 child support under the guidelines. Husband argues that it did so erroneously. We

18 agree.




                                             12
 1        In order to properly set the amount of child support under the guidelines, the

 2 district court must calculate the parties’ gross income under Section 40-4-11.1(C). See

 3 Section 40-4-11.1(E). In pertinent part, that section defines “gross income” as

 4        income from any source and includes but is not limited to income from
 5        salaries, wages, tips, commissions, bonuses, dividends, severance pay,
 6        pensions, interest, trust income, annuities, capital gains, social security
 7        benefits, workers’ compensation benefits, unemployment insurance
 8        benefits, disability insurance benefits, significant in-kind benefits that
 9        reduce personal living expenses, prizes and alimony or maintenance
10        received.

11 Section 40-4-11.1(C)(2). In Styka, this Court analyzed the question of whether gifts

12 to a party could be considered against that party’s gross income. We held that as a

13 general rule they may not be considered, because “[t]he wording of our statute is more

14 analogous to those in jurisdictions that have not generally included gifts as income.”

15 1999-NMCA-002, ¶ 24. Nevertheless, when a court determines that deviation from

16 the guidelines is appropriate, it may consider “periodic, dependable gifts in gross

17 income.” Id. ¶ 25 (emphasis added). As to what constitutes a “periodic, dependable

18 gift,” Styka provides the only example in our caselaw. It holds that a lower court

19 properly disregarded gifts to a party totaling $10,000 per year for nine consecutive

20 years. Id. ¶ 19, 25.

21        In its written conclusions of law, the court cited Styka for the proposition that

22 “[s]ettlement monies and family gifts are included in the calculation of gross income

                                              13
 1 for determining child support.” As such, the court concluded that a deviation from the

 2 guidelines was appropriate. Based on our reading of Styka, this is a misapprehension

 3 of the law. As we discussed above, that opinion holds that a court may consider gifts

 4 in gross income when it finds that they were “periodic” and “dependable.” Id. ¶ 25.

 5 The district court in this case made no such determination.        Furthermore, even if

 6 we infer that the court made such a finding, there is no evidence in the record to

 7 support it. As discussed above, Husband received $20,000 in 2000, $5,000 in 2002,

 8 $6,000 in 2004, and $11,000 in 2005. Based on these numbers, we discern no

 9 periodic, dependable pattern at all. Although each gift came from Husband’s mother’s

10 estate, each constitutes a different amount ranging from $5,000 to $20,000. There

11 were no gifts in the years 2001 and 2003, and we note neither a steady increase nor

12 a steady decrease in the gift amounts. Styka held that the lower court properly refused

13 to consider annual gifts of $10,000 received from the same source over nine

14 consecutive years. Id. ¶ 19, 25. The gifts here were insufficiently dependable to

15 justify counting them as income, and we reverse the district court on this issue.

16 CONCLUSION

17        Based on the analysis above, we affirm the district court’s enforcement of the

18 prenuptial agreement against Husband, but we reverse the court’s consideration of

19 Husband’s irregular gift income under the child support guidelines. We remand to the

                                             14
1 district court for a recalculation of the parties’ gross income and child support under

2 the guidelines.

3        IT IS SO ORDERED.



4
5                                         RODERICK T. KENNEDY, Judge

6 WE CONCUR:




7
8 MICHAEL D. BUSTAMANTE, Judge




 9
10 LINDA M. VANZI, Judge




                                            15
