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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 GERRI BYRNE,
3 Petitioner-Appellee,
4 v. No. 32,588
5 RICHARD BYRNE,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Mary L. Marlowe, District Judge
9 Cortez Family Law, LLC 10 M. Michelle Cortez 11 Albuquerque, NM
12 for Appellee
13 Richard Byrne 14 Rowe, NM
15 Pro Se Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge. 1 {1} Respondent appeals from a final decree and order granting dissolution of
2 marriage, dividing and distributing assets, and awarding spousal support. We issued
3 a notice of proposed summary disposition, proposing to uphold the decree and order.
4 Respondent has filed a memorandum in opposition, and Petitioner has filed a
5 responsive memorandum, which we have duly considered. Because we remain
6 unpersuaded by the assertions of error, we affirm.
7 {2} As an initial matter, we note that Petitioner’s responsive memorandum suggests
8 that she wishes this Court to increase the awards of arrears and spousal support.
9 However, because we find no indication that Petitioner filed a notice of appeal or
10 cross-appeal, these supplemental matters are not properly before us. See Peterson v.
11 Peterson, 98 N.M. 744, 748, 652 P.2d 1195, 1199 (1982) (indicating that the timely
12 filing of a notice of appeal or a notice of cross-appeal is a jurisdictional prerequisite
13 for a reviewing court to consider additional assertions of error); and see generally
14 Rule 12-201(C) NMRA (providing that an appellee is not required to file a notice of
15 cross-appeal in order to raise issues or arguments “for the purpose of enabling the
16 appellate court to affirm” or “only if the appellate court should reverse, in whole or
17 in part, the judgment or order appealed from”). We are therefore unable to consider
18 Petitioner’s arguments.
2 1 {3} We turn next to the various issues raised by Respondent. Because we set forth
2 the pertinent background and our analysis in the notice of proposed summary
3 disposition, we will not reiterate at length here. Instead, we will focus on the content
4 of the memorandum in opposition.
5 {4} First, Respondent renews his challenge to the district court’s calculation of
6 Petitioner’s monthly rent and propane obligations, contending that the required
7 payments do not accurately reflect the proportion of the total square footage occupied
8 by Petitioner. [MIO 3] However, as we previously observed, mathematical exactness
9 is not required relative to apportionment in domestic relations cases. See generally
10 Irwin v. Irwin, 121 N.M. 266, 269, 910 P.2d 342, 345 (Ct. App. 1995) (observing that
11 the equitable allocation of property between the parties “need not be computed with
12 mathematical exactness”). Contrary to Respondent’s suggestion, [MIO 2] this basic
13 principle is applicable to the matter at hand. And, based on all of the information that
14 is presently available to us, we remain unpersuaded that the discrepancies are
15 significant enough to require reversal. See generally Jurado v. Jurado, 119 N.M. 522,
16 531, 892 P.2d 969, 978 (Ct. App. 1995) (observing that mathematical exactness is not
17 required in this context, and rejecting a challenge on grounds that the district
18 court’s approach reflected a reasonable determination about what Wife should receive,
19 and therefore there was no abuse of discretion).
3 1 {5} Second, Respondent continues to assert that the district court erred in valuing
2 and dividing his sick leave. [MIO 3-4] However, the approach taken by the district
3 court in this case is well supported. See Arnold v. Arnold, 2003-NMCA-114, ¶¶ 16-
4 17, 134 N.M. 381, 77 P.3d 285 (holding that accrued sick leave constitutes a benefit
5 of employment earned through community, and as such it is subject to equitable
6 distribution upon dissolution of marriage). As we previously observed, Respondent’s
7 attempts to distinguish this case on grounds that his accumulated sick leave “has no
8 independent value,” in the sense that it constitutes some form of “salary replacement”
9 which may or may not be used over the balance of employment are unpersuasive,
10 [MIO 3-4] insofar as the court in Arnold rejected similar arguments. Id. ¶¶ 12-17.
11 {6} Third, Respondent renews his challenge to the award of arrears associated with
12 his interim support obligations, based on financial assistance which Petitioner
13 “admitted” receiving from her father. [MIO 4-5] However, as we previously
14 observed, Petitioner also presented evidence that these funds were merely loaned. [DS
15 7] To the extent that the district court credited this evidence, it was under no
16 obligation to treat those monies as income to Petitioner.
17 {7} Fourth and finally, Respondent continues to argue that the award of interim
18 spousal support to Petitioner was improper, for lack of substantial evidence. More
19 specifically, Respondent contends that the district court erred in determining that
4 1 Petitioner would not remain employed as her father’s caretaker in the future, and
2 contends that the hardship to him is so great the award should be overturned. [MIO
3 5-6] However, as we previously noted, insofar as Petitioner presented evidence,
4 including her own testimony, to the effect that she would no longer be acting as her
5 father’s caretaker, the district court’s finding is adequately supported. See, e.g., Lahr
6 v. Lahr, 82 N.M. 223, 478 P.2d 551 (1970) (holding that wife’s testimony, in a
7 proceeding for division of property in divorce action, constituted substantial
8 evidence); Helena Chemical Co. v. Uribe, 2013-NMCA-017, ¶ 58, 293 P.3d 888
9 (observing, relative to financial means, that an individual’s testimony constitutes
10 substantial evidence). The existence of conflicting evidence presents no basis for
11 reversal. [MIO 5-6] See generally Las Cruces Prof’l Fire Fighters v. City of Las
12 Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (“The question is not
13 whether substantial evidence exists to support the opposite result, but rather whether
14 such evidence supports the result reached.”).
15 {8} As we previously observed, the district court considered the appropriate factors
16 when evaluating Petitioner’s request for spousal support. See NMSA 1978, § 40-4-
17 7(E) (1997). Under the circumstances presented in this case, the award is well
18 supported. See, e.g., Lewis v. Lewis, 106 N.M. 105, 115-116, 739 P.2d 974, 984-85
19 (Ct. App. 1987) (holding that a 62-year-old recipient who had been married to the
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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 GERRI BYRNE,
3 Petitioner-Appellee,
4 v. No. 32,588
5 RICHARD BYRNE,
6 Respondent-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Mary L. Marlowe, District Judge
9 Cortez Family Law, LLC 10 M. Michelle Cortez 11 Albuquerque, NM
12 for Appellee
13 Richard Byrne 14 Rowe, NM
15 Pro Se Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge. 1 {1} Respondent appeals from a final decree and order granting dissolution of
2 marriage, dividing and distributing assets, and awarding spousal support. We issued
3 a notice of proposed summary disposition, proposing to uphold the decree and order.
4 Respondent has filed a memorandum in opposition, and Petitioner has filed a
5 responsive memorandum, which we have duly considered. Because we remain
6 unpersuaded by the assertions of error, we affirm.
7 {2} As an initial matter, we note that Petitioner’s responsive memorandum suggests
8 that she wishes this Court to increase the awards of arrears and spousal support.
9 However, because we find no indication that Petitioner filed a notice of appeal or
10 cross-appeal, these supplemental matters are not properly before us. See Peterson v.
11 Peterson, 98 N.M. 744, 748, 652 P.2d 1195, 1199 (1982) (indicating that the timely
12 filing of a notice of appeal or a notice of cross-appeal is a jurisdictional prerequisite
13 for a reviewing court to consider additional assertions of error); and see generally
14 Rule 12-201(C) NMRA (providing that an appellee is not required to file a notice of
15 cross-appeal in order to raise issues or arguments “for the purpose of enabling the
16 appellate court to affirm” or “only if the appellate court should reverse, in whole or
17 in part, the judgment or order appealed from”). We are therefore unable to consider
18 Petitioner’s arguments.
2 1 {3} We turn next to the various issues raised by Respondent. Because we set forth
2 the pertinent background and our analysis in the notice of proposed summary
3 disposition, we will not reiterate at length here. Instead, we will focus on the content
4 of the memorandum in opposition.
5 {4} First, Respondent renews his challenge to the district court’s calculation of
6 Petitioner’s monthly rent and propane obligations, contending that the required
7 payments do not accurately reflect the proportion of the total square footage occupied
8 by Petitioner. [MIO 3] However, as we previously observed, mathematical exactness
9 is not required relative to apportionment in domestic relations cases. See generally
10 Irwin v. Irwin, 121 N.M. 266, 269, 910 P.2d 342, 345 (Ct. App. 1995) (observing that
11 the equitable allocation of property between the parties “need not be computed with
12 mathematical exactness”). Contrary to Respondent’s suggestion, [MIO 2] this basic
13 principle is applicable to the matter at hand. And, based on all of the information that
14 is presently available to us, we remain unpersuaded that the discrepancies are
15 significant enough to require reversal. See generally Jurado v. Jurado, 119 N.M. 522,
16 531, 892 P.2d 969, 978 (Ct. App. 1995) (observing that mathematical exactness is not
17 required in this context, and rejecting a challenge on grounds that the district
18 court’s approach reflected a reasonable determination about what Wife should receive,
19 and therefore there was no abuse of discretion).
3 1 {5} Second, Respondent continues to assert that the district court erred in valuing
2 and dividing his sick leave. [MIO 3-4] However, the approach taken by the district
3 court in this case is well supported. See Arnold v. Arnold, 2003-NMCA-114, ¶¶ 16-
4 17, 134 N.M. 381, 77 P.3d 285 (holding that accrued sick leave constitutes a benefit
5 of employment earned through community, and as such it is subject to equitable
6 distribution upon dissolution of marriage). As we previously observed, Respondent’s
7 attempts to distinguish this case on grounds that his accumulated sick leave “has no
8 independent value,” in the sense that it constitutes some form of “salary replacement”
9 which may or may not be used over the balance of employment are unpersuasive,
10 [MIO 3-4] insofar as the court in Arnold rejected similar arguments. Id. ¶¶ 12-17.
11 {6} Third, Respondent renews his challenge to the award of arrears associated with
12 his interim support obligations, based on financial assistance which Petitioner
13 “admitted” receiving from her father. [MIO 4-5] However, as we previously
14 observed, Petitioner also presented evidence that these funds were merely loaned. [DS
15 7] To the extent that the district court credited this evidence, it was under no
16 obligation to treat those monies as income to Petitioner.
17 {7} Fourth and finally, Respondent continues to argue that the award of interim
18 spousal support to Petitioner was improper, for lack of substantial evidence. More
19 specifically, Respondent contends that the district court erred in determining that
4 1 Petitioner would not remain employed as her father’s caretaker in the future, and
2 contends that the hardship to him is so great the award should be overturned. [MIO
3 5-6] However, as we previously noted, insofar as Petitioner presented evidence,
4 including her own testimony, to the effect that she would no longer be acting as her
5 father’s caretaker, the district court’s finding is adequately supported. See, e.g., Lahr
6 v. Lahr, 82 N.M. 223, 478 P.2d 551 (1970) (holding that wife’s testimony, in a
7 proceeding for division of property in divorce action, constituted substantial
8 evidence); Helena Chemical Co. v. Uribe, 2013-NMCA-017, ¶ 58, 293 P.3d 888
9 (observing, relative to financial means, that an individual’s testimony constitutes
10 substantial evidence). The existence of conflicting evidence presents no basis for
11 reversal. [MIO 5-6] See generally Las Cruces Prof’l Fire Fighters v. City of Las
12 Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (“The question is not
13 whether substantial evidence exists to support the opposite result, but rather whether
14 such evidence supports the result reached.”).
15 {8} As we previously observed, the district court considered the appropriate factors
16 when evaluating Petitioner’s request for spousal support. See NMSA 1978, § 40-4-
17 7(E) (1997). Under the circumstances presented in this case, the award is well
18 supported. See, e.g., Lewis v. Lewis, 106 N.M. 105, 115-116, 739 P.2d 974, 984-85
19 (Ct. App. 1987) (holding that a 62-year-old recipient who had been married to the
5 1 payor for nearly 40 years, whose marital role was primarily that of a homemaker, and
2 whose spouse was able to afford alimony, was under no obligation to “rehabilitate”
3 herself). While we recognize that the award may result in hardship, and we
4 acknowledge Respondent’s assertion he is left with insufficient funds to cover his
5 routine living expenses, [MIO 7] this circumstance by itself does not render the award
6 improper. See, e.g., Talley v. Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App.
7 1993) (upholding an award of indefinite spousal support, notwithstanding the fact that
8 the payor’s remaining income would not cover his normal monthly expenses).
9 Respondent’s attempts to distinguish this case from Talley are unpersuasive.
10 Ultimately, insofar as “[t]he record indicates that the trial court considered the relevant
11 circumstances, applied the correct law, and reached a decision based on the law and
12 the facts[,]” the award must be upheld. Id. Respondent’s remedy lies with the district
13 court given that the award is expressly “modifiable.”
14 {9} Accordingly, for the reasons stated above and in the notice of proposed
15 summary disposition, we affirm.
16 {10} IT IS SO ORDERED.
17 18 MICHAEL D. BUSTAMANTE, Judge
19 WE CONCUR:
6 1 2 JONATHAN B. SUTIN, Judge
3 4 MICHAEL E. VIGIL, Judge