Andrade v. Andrade

• Court: New Mexico Court of Appeals
• Decided: March 8, 2017
• Docket: 35,428
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 RACHEL FAYE ANDRADE 3 n/k/a RACHEL FAYE ROGERS-ANDRADE,

4 Petitioner-Appellee,

5 v. NO. 35,428

6 MANUEL SEVE ANDRADE,

7 Respondent-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Gerard J. Lavelle, District Judge

10 New Mexico Legal Group. P.C. 11 Sarah M. Armstrong 12 Albuquerque, NM

13 for Appellee

14 Manuel Seve Andrade 15 Albuquerque, NM

16 Pro Se Appellant

17 MEMORANDUM OPINION

18 VANZI, Chief Judge. 1 {1} Respondent appeals, pro se, from the district court’s final decree of divorce. We

2 issued a calendar notice proposing to affirm. Respondent has filed a response. We

3 affirm the district court.

4 {2} In this appeal, Respondent has challenged the division of retirement benefits

5 ordered by the final decree of divorce. [DS 24-25] Prior to the entry of the decree,

6 Respondent had entered into a legal separation agreement that, among other things,

7 addressed the division of retirement benefits. [RP 32, 36-40] Respondent subsequently

8 filed a pro se motion to change the division of benefits. [RP 52] The issue was

9 resolved pursuant to a memorandum agreement signed by the parties, as well as their

10 respective attorneys. [RP 94-96] This agreement was incorporated into the final

11 decree. [RP 91-93] See Gordon v. Gordon, 2011-NMCA-044, ¶ 13, 149 N.M. 783,

12 255 P.3d 361 (stating that our case law provides that once a settlement agreement

13 between divorcing spouses has been “adopted and incorporated in [a] final divorce

14 decree, the underlying agreement is deemed to have merged with the decree” (internal

15 quotation marks and citation omitted)). Instead of requesting that the district court set

16 aside the final decree, Respondent filed a notice of appeal to this Court. However, as

17 our calendar notice pointed out, because Respondent has not asked the district court

18 in the first instance to set aside the decree, our review is bound by the agreement [RP

19 94]. Defendant’s remedy is to seek to set aside the agreement in the district court

2 1 pursuant to Rule 1-060(B) NMRA. See id. ¶¶ 15-20 (discussing setting aside marital

2 settlement agreements).

3 {3} In his response to our calendar notice, Respondent simply points out a

4 typographical error in the affidavit of Petitioner’s attorney, wherein the attorney states

5 that “Respondent has paid” a specific amount of attorney fees, instead of stating that

6 Petitioner has paid that amount up to the referenced date. [RP 104, MIO 1] The

7 attorney fees issue is not part of this appeal. Respondent chose to appeal from the final

8 decree, without waiting for resolution of the attorney fees issue. [RP 91, 99, 105]

9 When there is a judgment on the merits and a prospective award of attorney fees, our

10 Supreme Court has recognized a “twilight zone” of finality, permitting a party to

11 either file an appeal prior to the entry of the attorney fees order or to appeal after that

12 order has been filed. See Trujillo v. Hilton of Santa Fe, 1993-NMSC-017, ¶¶ 3, 5, 115

13 N.M. 397, 851 P.2d 1064. As indicated above, Respondent chose to appeal from the

14 judgment on the merits. As such, any issues related to attorney fees needs to be

15 addressed in a separate appeal.

16 {4} With respect to the current appeal, Respondent has not pointed out any errors

17 in our calendar notice. Accordingly, we affirm the district court. See Hennessy v.

18 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have

19 repeatedly held that, in summary calendar cases, the burden is on the party opposing

20 the proposed disposition to clearly point out errors in fact or law.”).

3 1 {5} IT IS SO ORDERED.

2 __________________________________ 3 LINDA M. VANZI, Chief Judge

4 WE CONCUR:

5 _________________________________ 6 JAMES J. WECHSLER, Judge

7 _________________________________ 8 TIMOTHY L. GARCIA, Judge