Legal Memorandum: Exceptions allow an unavailable declarant’s statements into evidence

Issue: When a declarant is unavailable to be a witness, may their statement nonetheless be received as evidence?

In New Mexico, modification of spousal support is governed by statute.  The statutory provisions are entwined with the provisions for support of children and the division of the spouses’ property.  The portions of the statute relevant to the determination and modification of an award of support to a former spouse are:

A.        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 to restrain the use or disposition of the property of either party or for the control of the children or to provide for the support of either party during the pendency of the proceeding, as in its discretion may seem just and proper. 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.   

B.        On final hearing, the court:   

(1)        may allow either party such a reasonable portion of the spouse’s property or such a reasonable sum of money to be paid by either spouse either in a single sum or in installments, as spousal support as under the circumstances of the case may seem just and proper, including a court award of:   

(a)        rehabilitative spousal support that provides the receiving spouse with education, training, work experience or other forms of rehabilitation that increases the receiving spouse’s ability […]

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