Karpien v. Karpien

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 DAVID KARPIEN,

8 Petitioner-Appellant,

9 v. NO. 30,933

10 DAWN KARPIEN, 11 a/k/a DAWN JOHNSON,

12 Respondent-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 14 John F. Davis, District Judge

15 Chappell Law Firm, P.A. 16 Sidney Childress 17 Albuquerque, NM

18 for Appellant

19 Trujillo Dodd, Torres, O’Brien, Sanchez, LLC 20 Donna Trujillo Dodd 21 Albuquerque, NM

22 for Appellee 1 MEMORANDUM OPINION

2 VIGIL, Judge.

3 Husband appeals an order dividing community property after remand from this

4 Court. We proposed to reverse the property division. Wife has timely responded. We

5 have considered her arguments and not being persuaded, we reverse.

6 In our notice, we proposed to reverse the determination regarding the valuation

7 of the residence and the debt attached thereto. In so doing, we proposed to conclude

8 that determining the equity in the community residences by using asset and debt

9 values from different years was error. Wife responds that the district court was

10 invoking its equitable powers in its determination of the value of the community

11 residence. Thus, she argues, the district court considered Husband’s use of the

12 residence over the years since the parties’ separation. She contends that Husband did

13 not sell the house in 2007 when originally ordered to do so and, as a result, she lost

14 money. [MIO 3] She also contends that she should have been entitled to rent from

15 Husband for his use of the residence. [MIO 3] All these circumstances, she contends,

16 the district court could have taken into consideration in determining the value of the

17 community residence.

18 While we agree that the district court could take such things into consideration

19 in determining how to divide community property, there is no suggestion in the record

2 1 that the district court did take those things into consideration. The district court’s

2 order does not contain factual findings to explain his use of valuation from different

3 years. Without such explanation, we must conclude that the district court erred.

4 Further, Wife argues that equity factored into the district court’s determination

5 that the insurance proceeds were community property. If property is separate as the

6 life insurance policy proceeds were here, it remains separate, and the district court

7 cannot award it as community property. Thus, the district court’s division of

8 community assets, which included the insurance proceeds in Husband’s assets, is in

9 error. Further, there is nothing in the record supporting Wife’s claim that Husband

10 was allowed to pocket reimbursements for Wife’s medical bills that should have been

11 calculated as community. This does not cure any error in awarding as community

12 property that which is separate.

13 Wife’s argument that the district court’s equitable powers support the property

14 division here are unsupported by record. While she poses a number of considerations

15 that the district court could have made. There is nothing in the record suggesting that

16 is what the district court did do.

17 For the reasons stated herein and in the calendar notice, we reverse and remand

18 for recalculation and division of the community property.

19 IT IS SO ORDERED.

3 1 _______________________________ 2 MICHAEL E. VIGIL, Judge

3 WE CONCUR:

4 ___________________________ 5 JAMES J. WECHSLER, Judge

6 ___________________________ 7 CYNTHIA A. FRY, Judge

4 5