This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 REGINA BENAVIDEZ,
3 Petitioner-Appellant,
4 v. No. 31,296
5 RICHARD SALGADO,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Elizabeth E. Whitefield, District Judge
9 Stephen P. Eaton 10 Albuquerque, NM
11 for Appellant
12 Geer, Wissel & Levy 13 Robert D. Levy 14 Albuquerque, NM
15 for Appellee
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge. 1 Benavidez appeals an order granting in part and denying in part her motion to
2 reopen a marital dissolution decree. In this Court’s notice of proposed summary
3 disposition, we proposed to affirm. Benavidez has filed a memorandum in opposition
4 and a motion to amend the docketing statement, which we have duly considered. As
5 we are not persuaded by Benavidez’s arguments, we deny the motion and we affirm.
6 Denial of the Motions to Reopen the Dissolution Decree
7 Benavidez’s docketing statement raised three issues that all hinge on her
8 assertion that “additional fact investigation” or further “discovery” was a material
9 element of the dissolution decree incorporating the terms of the parties’ marital
10 settlement agreement. [DS 11] In our notice of proposed summary disposition, we
11 proposed to disagree and to hold that the plain language of the decree indicates that
12 the decree would be reopened under either of two circumstances: (1) if Benavidez
13 learned—through some channel other than the discovery already produced in the
14 case—that Salgado had failed to disclose assets, or (2) if Benavidez was able to
15 demonstrate that Salgado gave an incomplete response or no response to a discovery
16 request and the incomplete response or failure to respond had a substantial impact on
17 the ownership or valuation of the asset. We stated that Benavidez’s proposed
18 interpretation—that discovery would generally remain open even after a final order
19 had been entered on all matters in the case—is contrary to the language and would
2 1 defeat the purpose of the final decree. Because Benavidez had failed to demonstrate
2 in the district court that either of the two requirements for reopening the decree had
3 been met, we proposed to hold that the district court had not erred in refusing to
4 reopen the decree except insofar as it related to the Corrales property.
5 In her memorandum in opposition, Benavidez asserts that the district court
6 expressly stated that discovery would remain open even after the entry of the decree.
7 [MIO 2] First, we note that even if the district court’s oral statement conflicted with
8 its written order, it is the written order that controls, and we will not consider the oral
9 statement as a basis for reversal. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d
10 874, 881 (1985). Furthermore, even if we were to consider the district court’s oral
11 statement as a basis for reversal, the statement itself does not support Benavidez’s
12 position. In Benavidez’s own motion in the district court, she asserted that what the
13 court had said was that discovery would remain open if Benavidez was able to present
14 evidence of undisclosed assets. [RP 340] This does not reflect an intent that
15 discovery would generally remain open, and instead expressly required Benavidez to
16 make a showing of undisclosed assets before discovery would be opened after the
17 entry of the decree. The determination of what the district court intended by this oral
18 statement was a matter for the district court to resolve. Benavidez brought her
19 arguments to the district court’s attention, and the district court rejected them. The
3 1 district court’s own conclusion about the meaning of its prior oral statement is
2 supported by language of the statement itself.
3 Benavidez asserts that Rule 1-126 NMRA and NMSA 1978, Section 40-4-3
4 (1973), also support her claim that discovery was left open after the entry of the
5 decree. We do not believe that these authorities support Benavidez’s argument that
6 the district court could have entered a final decree as to all matters but nevertheless
7 left discovery open as to some of those matters. But even if they did, there is nothing
8 in these authorities that would have required the district court to leave discovery open
9 in this case, and it did not do so. These authorities do not demonstrate that the district
10 court erred in so deciding.
11 Motion to Amend the Docketing Statement
12 Benavidez seeks to amend the docketing statement to add a claim that she was
13 improperly denied the opportunity to present evidence that would have warranted
14 reopening the decree. [MIO 4-6 (This argument really starts prior to the section on
15 the motion to amend.)] This Court will not grant a motion to amend when the claim
16 to be raised is not viable. See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009
17 (Ct. App. 1994) (denying a motion to amend the docketing statement based upon a
18 determination that the argument sought to be raised was not viable).
4 1 We deny Benavidez’s motion because we conclude that the issue she seeks to
2 add is not viable. As we have explained, the two bases for reopening the decree were
3 if Benavidez could demonstrate that she had learned that Salgado failed to disclose
4 assets or that Salgado gave an incomplete response or no response to a discovery
5 request and the incomplete response or failure to respond had a substantial impact on
6 the ownership or valuation of the asset. In Benavidez’s emergency motion, she
7 asserted that her attorney had reexamined all of the documents that Salgado had
8 provided in discovery and had determined that Salgado had concealed income and
9 assets from Benavidez. [RP 320] The single example Benavidez gave of this kind of
10 concealment was evidence that Salgado’s paychecks had not been deposited into the
11 couple’s joint bank account for a period of a year prior to the dissolution decree. [RP
12 321] In response, Salgado stated that he had never deposited his paychecks into the
13 joint account, and that they had always been directly deposited by his employer into
14 his individual account. [RP 330] Salgado stated that this information was documented
15 in the bank statements that had been provided to Benavidez in discovery. [RP 330]
16 Salgado’s response affirmatively stated that he had provided all relevant information
17 in discovery and had not concealed any assets. [RP 332] He represented that
18 although he had repeatedly requested that Benavidez provide further information to
19 support her suspicions of undisclosed assets, she had not done so. [RP 332] Salgado
5 1 pointed out that he was unable to prove a negative, and that it was incumbent on
2 Benavidez to demonstrate that these claimed other assets and income existed. [RP
3 334] The district court held a hearing and determined that Benavidez had established
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This memorandum opinion was not selected for publication in the New Mexico 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 REGINA BENAVIDEZ,
3 Petitioner-Appellant,
4 v. No. 31,296
5 RICHARD SALGADO,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Elizabeth E. Whitefield, District Judge
9 Stephen P. Eaton 10 Albuquerque, NM
11 for Appellant
12 Geer, Wissel & Levy 13 Robert D. Levy 14 Albuquerque, NM
15 for Appellee
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge. 1 Benavidez appeals an order granting in part and denying in part her motion to
2 reopen a marital dissolution decree. In this Court’s notice of proposed summary
3 disposition, we proposed to affirm. Benavidez has filed a memorandum in opposition
4 and a motion to amend the docketing statement, which we have duly considered. As
5 we are not persuaded by Benavidez’s arguments, we deny the motion and we affirm.
6 Denial of the Motions to Reopen the Dissolution Decree
7 Benavidez’s docketing statement raised three issues that all hinge on her
8 assertion that “additional fact investigation” or further “discovery” was a material
9 element of the dissolution decree incorporating the terms of the parties’ marital
10 settlement agreement. [DS 11] In our notice of proposed summary disposition, we
11 proposed to disagree and to hold that the plain language of the decree indicates that
12 the decree would be reopened under either of two circumstances: (1) if Benavidez
13 learned—through some channel other than the discovery already produced in the
14 case—that Salgado had failed to disclose assets, or (2) if Benavidez was able to
15 demonstrate that Salgado gave an incomplete response or no response to a discovery
16 request and the incomplete response or failure to respond had a substantial impact on
17 the ownership or valuation of the asset. We stated that Benavidez’s proposed
18 interpretation—that discovery would generally remain open even after a final order
19 had been entered on all matters in the case—is contrary to the language and would
2 1 defeat the purpose of the final decree. Because Benavidez had failed to demonstrate
2 in the district court that either of the two requirements for reopening the decree had
3 been met, we proposed to hold that the district court had not erred in refusing to
4 reopen the decree except insofar as it related to the Corrales property.
5 In her memorandum in opposition, Benavidez asserts that the district court
6 expressly stated that discovery would remain open even after the entry of the decree.
7 [MIO 2] First, we note that even if the district court’s oral statement conflicted with
8 its written order, it is the written order that controls, and we will not consider the oral
9 statement as a basis for reversal. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d
10 874, 881 (1985). Furthermore, even if we were to consider the district court’s oral
11 statement as a basis for reversal, the statement itself does not support Benavidez’s
12 position. In Benavidez’s own motion in the district court, she asserted that what the
13 court had said was that discovery would remain open if Benavidez was able to present
14 evidence of undisclosed assets. [RP 340] This does not reflect an intent that
15 discovery would generally remain open, and instead expressly required Benavidez to
16 make a showing of undisclosed assets before discovery would be opened after the
17 entry of the decree. The determination of what the district court intended by this oral
18 statement was a matter for the district court to resolve. Benavidez brought her
19 arguments to the district court’s attention, and the district court rejected them. The
3 1 district court’s own conclusion about the meaning of its prior oral statement is
2 supported by language of the statement itself.
3 Benavidez asserts that Rule 1-126 NMRA and NMSA 1978, Section 40-4-3
4 (1973), also support her claim that discovery was left open after the entry of the
5 decree. We do not believe that these authorities support Benavidez’s argument that
6 the district court could have entered a final decree as to all matters but nevertheless
7 left discovery open as to some of those matters. But even if they did, there is nothing
8 in these authorities that would have required the district court to leave discovery open
9 in this case, and it did not do so. These authorities do not demonstrate that the district
10 court erred in so deciding.
11 Motion to Amend the Docketing Statement
12 Benavidez seeks to amend the docketing statement to add a claim that she was
13 improperly denied the opportunity to present evidence that would have warranted
14 reopening the decree. [MIO 4-6 (This argument really starts prior to the section on
15 the motion to amend.)] This Court will not grant a motion to amend when the claim
16 to be raised is not viable. See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009
17 (Ct. App. 1994) (denying a motion to amend the docketing statement based upon a
18 determination that the argument sought to be raised was not viable).
4 1 We deny Benavidez’s motion because we conclude that the issue she seeks to
2 add is not viable. As we have explained, the two bases for reopening the decree were
3 if Benavidez could demonstrate that she had learned that Salgado failed to disclose
4 assets or that Salgado gave an incomplete response or no response to a discovery
5 request and the incomplete response or failure to respond had a substantial impact on
6 the ownership or valuation of the asset. In Benavidez’s emergency motion, she
7 asserted that her attorney had reexamined all of the documents that Salgado had
8 provided in discovery and had determined that Salgado had concealed income and
9 assets from Benavidez. [RP 320] The single example Benavidez gave of this kind of
10 concealment was evidence that Salgado’s paychecks had not been deposited into the
11 couple’s joint bank account for a period of a year prior to the dissolution decree. [RP
12 321] In response, Salgado stated that he had never deposited his paychecks into the
13 joint account, and that they had always been directly deposited by his employer into
14 his individual account. [RP 330] Salgado stated that this information was documented
15 in the bank statements that had been provided to Benavidez in discovery. [RP 330]
16 Salgado’s response affirmatively stated that he had provided all relevant information
17 in discovery and had not concealed any assets. [RP 332] He represented that
18 although he had repeatedly requested that Benavidez provide further information to
19 support her suspicions of undisclosed assets, she had not done so. [RP 332] Salgado
5 1 pointed out that he was unable to prove a negative, and that it was incumbent on
2 Benavidez to demonstrate that these claimed other assets and income existed. [RP
3 334] The district court held a hearing and determined that Benavidez had established
4 that she was entitled to reopen discovery to depose Salgado on the limited issue of the
5 sale of an Arizona property and its effect on the parties’ interests in the purchase of
6 the Corrales lot. [RP 337] Nothing in Benavidez’s docketing statement or
7 memorandum in opposition indicates that she made any representations to the district
8 court or made an offer of proof of any evidence she wished to introduce that would
9 have demonstrated that she could present evidence to demonstrate that Salgado had
10 concealed any other assets. A party is not entitled to an evidentiary hearing on every
11 motion. See United Nuclear Corp. v. General Atomic Co., 93 N.M. 105, 123-24, 597
12 P.2d 290, 308-09 (1979) (stating that the type of hearing necessary for purposes of
13 due process depends on the nature of the case and that motions are generally decided
14 on the papers, without live testimony). Benavidez argued her motion to the district
15 court, and simply failed to persuade it except with respect to the Corrales property.
16 In her motion to reconsider, Benavidez made essentially the same arguments
17 she made in the emergency motion. [RP 338-42] Although she again made general
18 allegations that she had substantial evidence that Salgado had undisclosed bank
19 accounts and retirement accounts, she did not state what that evidence was, and she
6 1 undermined this statement by saying that she was unable, without further discovery,
2 to know the nature and value of those accounts. [RP 341] In other words, the focus
3 of Benavidez’s motion was not that she had specific evidence she wished to present
4 to the district court, but that she wished to conduct further discovery in order to obtain
5 such evidence. [RP 338-42] Salgado responded that Benavidez had refused to
6 provide him with the evidence she claimed to have of the concealed assets and
7 income, but she continued to insist that such evidence existed. [RP 354] He again
8 affirmatively stated that he had provided all information about his separate and
9 community interests. [RP 354-55] The district court held a hearing, and denied
10 Benavidez’s motion to reconsider. [RP 357] The order specifically states that the
11 court had heard testimony, offers of proof, and argument, and was signed by
12 Benavidez’s attorney. [RP 357] Therefore, we assume that Benavidez had the
13 opportunity to present any evidence she had available to her that Salgado had
14 concealed assets. To the degree that the order does not reflect what actually occurred,
15 Benavidez’s memorandum in opposition does not represent that she sought to
16 introduce such evidence, sought to make an offer of proof, or that she actually had
17 such evidence that the district court should have considered.
18 Therefore, for the reasons stated in this opinion and in our notice of proposed
19 summary disposition, we affirm.
7 1 IT IS SO ORDERED.
2 3 MICHAEL D. BUSTAMANTE, Judge
4 WE CONCUR:
5 6 JAMES J. WECHSLER, Judge
7 8 JONATHAN B. SUTIN, Judge