Kassicieh v. Kassicieh

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SAMIR KASSICIEH, 3 Petitioner-Appellee, 4 v. NO. 30,490

5 EILEEN KASSICIEH, 6 n/k/a EILEEN MARIE SAYEGH,

7 Respondent-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Angela J. Jewell, District Judge

10 Assed & Associates, P.C. 11 Richard J. Moran 12 Albuquerque, NM

13 for Appellee

14 Law Offices of Lynda Latta, LLC 15 Lynda Latta 16 Linda L. Ellison 17 Albuquerque, NM

18 for Appellant

19 MEMORANDUM OPINION

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1 GARCIA, Judge. 2 Wife appeals the district court’s order dissolving her marriage with Husband 3 and dividing their property. Wife raises eight issues on appeal that primarily address 4 the sufficiency of the evidence to support the district court’s conclusions that certain 5 debts were community property and certain assets were Husband’s sole and separate 6 property. We affirm the judgment of the district court. 7 BACKGROUND 8 Wife and Husband were married on July 2, 2006. Husband sought dissolution 9 of the marriage on August 22, 2008. After taking testimony, admitting evidence, and 10 hearing argument, the district court issued seventy-four findings of fact and 11 twenty-one conclusions of law related to the division of assets and liabilities of the 12 parties, both separate and the community. The district court incorporated its findings 13 of fact and conclusions of law into the judgment and final decree of dissolution of 14 marriage. 15 We shall only address the distribution of assets and liabilities that are relevant 16 to this appeal. Husband’s medical practice, the entire Vulcan Ventures I (Vulcan I) 17 investment asset, and Husband’s contribution to the Vulcan Ventures II (Vulcan II) 18 investment asset were awarded to Husband as his sole and separate assets. Wife was 19 awarded her separate percentage contribution to Vulcan II less the percentage interest

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1 in Vulcan II that the district court concluded Wife’s brothers had purchased from her. 2 With the exception of a $30,000 loan from Husband’s brother, which the district court 3 determined was Husband’s sole and separate debt, the district court found that the 4 gambling debts incurred during the marriage were community debts accumulated and 5 owed jointly by both parties. The gambling debts included a $5,000 balance on a 6 Southwest Airlines Visa. The district court also explained that neither party was 7 entitled to reimbursement for their individual separate contributions to the 8 accumulation and payment of community gambling debts because both parties used 9 separate and community property to fund their gambling habits. Finally, the district 10 court concluded that Wife was not entitled to any additional interim division of 11 income payments and equalized the payments that had already been made to Wife. 12 Wife filed a timely appeal with this Court asking for reversal of the district 13 court’s judgment. She then filed a motion to set aside the district court’s judgment for 14 fraud. Wife claims the gambling debt was accumulated solely by Husband and 15 requests reimbursement for the separate property she contributed to the accumulation 16 and payment of the gambling debts. Wife also claims that the district court’s findings 17 regarding the Vulcan I and II investments were not supported by substantial evidence 18 and that the district court erred in equalizing the interim division of income payments. 19 Additionally, if successful in her appeal, Wife requests a lien against Husband’s

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1 medical practice for monies owed to her. Our review of the record further indicates 2 that Wife is seeking a remand to the district court for the limited purpose of hearing 3 her motion to set aside the judgment. 4 DISCUSSION 5 I. Standard of Review 6 The district court entered extensive findings of fact and conclusions of law in 7 support of its judgment. We review the district court’s equitable distribution of assets 8 and liabilities for an abuse of discretion. Arnold v. Arnold, 2003-NMCA-114, ¶ 6, 134 9 N.M. 381, 77 P.3d 285. However, Wife asks this Court to review the district court’s 10 characterization of separate and community property de novo. See id. Wife’s 11 statement of the standard of review is correct insofar as any legal questions raised by 12 the classification of debts and property as either separate or belonging to the 13 community. See NMSA 1978, § 40-3-8 (1990) (defining separate and community 14 property); § 40-3-9 (1983) (defining separate and community debts); Styka v. Styka, 15 1999-NMCA-002, ¶ 8, 126 N.M. 515, 972 P.2d 16 (“we review questions of law de 16 novo.”). But the issues raised by Wife on appeal involve only evidentiary challenges 17 to the district court’s rulings. Thus, we shall apply a substantial evidence standard of 18 review. See Bishop v. Evangelical Good Samaritan Soc’y, 2009-NMSC-036, ¶ 25, 19 146 N.M. 473, 212 P.3d 361 (applying a substantial evidence standard where no legal

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1 questions remain); see also Corley v. Corley, 92 N.M. 716, 718, 594 P.2d 1172, 1174 2 (1979); Zemke v. Zemke, 116 N.M. 114, 118, 860 P.2d 756, 760 (Ct. App. 1993). 3 “Substantial evidence is such relevant evidence that a reasonable mind would 4 find adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138, 5 802 P.2d 1283, 1284 (1990). In reviewing a substantial evidence claim, “[t]he 6 question is not whether substantial evidence exists to support the opposite result, but 7 rather whether such evidence supports the result reached.” Las Cruces Prof’l Fire 8 Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. 9 “[W]e will not reweigh the evidence nor substitute our judgment for that of the fact 10 finder.” Id.; Lopez v. Adams, 116 N.M. 757, 758, 867 P.2d 427, 428 (Ct. App. 1993) 11 (“It is for the [district] court to weigh the testimony, determine the credibility of 12 witnesses, reconcile inconsistent statements and determine where the truth lies.”). As 13 a result, we will “resolve[] all disputes of [the] facts in favor of the successful party 14 and indulge[ ] all reasonable inferences in support of the prevailing party.” Las 15 Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12. 16 I. The Gambling Debts 17 We first address Wife’s contention that the district court erred in concluding 18 that the gambling debts acquired during the marriage were community debts. Wife 19 argues that the district court should have determined that the gambling debts were the

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1 sole and separate debts of Husband. See NMSA 1978, § 40-3-9.1 (1997) (“A 2 gambling debt incurred by a married person as a result of legal gambling is a separate 3 debt of the spouse incurring the debt.”). Wife does not challenge the district court’s 4 now conclusive legal finding that “common sense dictates that [the purpose of Section 5 40-3-9.1] is to protect an innocent spouse, who does not gamble, and is completely 6 unaware of community debts incurred, as a result of gambling[.]” See Cordova v. 7 Broadbent, 107 N.M. 215, 216, 755 P.2d 59, 60 (1988) (“Unchallenged [district] court 8 findings and conclusions are binding on appeal.”). Instead, Wife challenges the 9 sufficiency of the evidence to support the district court’s conclusion that she was not 10 an innocent spouse as protected by Section 40-3-9.1. 11 There is ample evidence in the record to support the finding that Wife 12 participated in gambling activities and was aware of the extent of Husband’s 13 gambling. Husband testified that the parties would gamble locally three to four times 14 a month, and that they would travel together to gamble in Las Vegas, Nevada every 15 six or eight weeks. Husband also explained that Wife appeared very happy when she 16 was gambling, shared the idea to go to the casino to gamble with him, and gambled 17 approximately the same amount of money as he did. Husband also told the district 18 court that Wife would mostly play slot machines and would generally spend between 19 $500 and $2,500 per bet. Both parties would obtain the money to gamble through

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1 cash on hand, ATM machines, credit card withdrawals, and cashing checks. He also 2 described a specific instance of Wife’s gambling activities. Husband testified that he 3 won $3,000 playing baccarat, and Wife immediately grabbed the winnings, played 4 them at the slot machines, and lost them. 5 Testimony from Husband’s brother and an executive host for Caesar’s Palace 6 (Castaldo) corroborated Husband’s testimony. Husband’s brother and Castaldo had 7 both observed Wife gamble with Husband and place bets at high stakes slot machines. 8 In addition, Castaldo remarked that Wife appeared enthusiastic to gamble and would 9 do so “all night” long. Castaldo also explained that he had previously overheard 10 Husband discuss his financial concerns with Wife, and that he had seen Wife gamble 11 with money loaned to the parties by Caesar’s Palace. 12 The district court also heard contradicting testimony from both Wife and 13 Husband’s ex-wife regarding Husband’s gambling habits and their lack of knowledge 14 of the extent of gambling throughout the course of each of their respective marriages. 15 After hearing this conflicting testimony from the parties, the district court rejected 16 Wife’s version of gambling events. It found Wife’s testimony “incredible” that she 17 was unaware of the extent of Husband’s gambling, or that he gambled much more 18 than she did. “All of the testimony in this case suggests that both parties gambled; 19 were aware of each other’s gambling habits; supported each other’s gambling; many

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1 times gambled together, and used each other’s gambling cards in some instances.” As 2 a result, the district court found that Wife contributed to the gambling habits of the 3 parties voluntarily and without duress and concluded that gambling debts owed by the 4 parties were community debts. 5 Wife’s argument on appeal essentially states that the district court should have 6 resolved the parties’ conflicting assertions in her favor. But we defer to the fact 7 finder, here, the district court, to resolve the conflicts in the evidence, to weigh the 8 facts, and to determine the credibility of the witnesses. Buckingham v. Ryan, 1998- 9 NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the 10 testimony, we defer to the trier of fact.”); State v. Roybal, 115 N.M. 27, 30, 846 P.2d 11 333, 336 (Ct. App. 1992) (“It was for the [district] court as fact[]finder to resolve any 12 conflict in the testimony of the witnesses and to determine where the weight and 13 credibility lay.”). The district court was in the best position to evaluate the evidence 14 presented and the credibility of the parties, and the record reflects that Wife was not 15 an innocent spouse with regard to the gambling debts. Substantial evidence supports 16 the district court’s findings that the parties both participated in the gambling activities 17 and each voluntarily used separate and community funds to support their gambling 18 habits. We, therefore, affirm the district court’s classification of the gambling debts 19 as community debts.

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1 Wife also argues on appeal that the district court should have characterized the 2 balances owed on a Southwest Airlines and Schwab Visa credit cards as the sole and 3 separate debt of Husband. However, Wife concedes that these balances are included 4 as part of the gambling debts. Because we conclude that substantial evidence supports 5 the district court’s characterization of gambling debts as community debts, we affirm 6 the district court’s characterization of both of these Visa credit card debts. 7 II. The Vulcan I Investment 8 The district court awarded the Vulcan I investment asset to Husband as his sole 9 and separate property. Wife appeals this award, arguing that Husband failed to trace 10 his Vulcan I investment to separate funds and the evidence was insufficient to support 11 the district court’s finding that Vulcan I was purchased prior to the marriage. “In New 12 Mexico, property takes its status as community or separate property at the time and 13 by the manner of its acquisition.” Zemke, 116 N.M. at 119, 860 P.2d at 761 (internal 14 quotation marks and citations omitted). Property acquired prior to marriage is 15 presumed to be separate property, whereas property acquired during a marriage is 16 presumed to belong to the community. Section 40-3-8(A)(1) and (B). Wife asserts 17 that Husband’s failure to trace his investment in Vulcan I, paired with the dates of the 18 deeds and purchase agreements, reveals that Vulcan I was a community asset 19 purchased during the marriage.

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1 Neither party tendered any evidence to trace the funds used to purchase Vulcan 2 I or the time at which Vulcan I was acquired. However, Husband presented ample 3 evidence to support his contention that he acquired the property with separate funds 4 prior to his marriage. Husband’s brother, a managing partner in Vulcan I, testified 5 that Wife never invested in Vulcan I and that the investment was funded prior to the 6 marriage between the parties. This Court will defer to the district court’s finding that 7 this testimony was credible. Roybal, 115 N.M. at 30, 846 P.2d at 336. Moreover, 8 Husband’s brother explained that although Vulcan I became an LLC entity after the 9 marriage, it was initially funded from March 2006 through July 2006. Based on this 10 testimony, the district court was entitled to make the reasonable inference that, given 11 the close proximity in time between the marriage and Husband’s investment in Vulcan 12 I, his sole and separate funds were used to make the investment. Samora v. Bradford, 13 81 N.M. 205, 207, 465 P.2d 88, 90 (Ct. App. 1970). 14 On appeal, it was Wife’s duty to present the evidence in the light most 15 favorable to support the district court’s findings, and then demonstrate why the 16 evidence failed to support the findings. Jurado v. Jurado, 119 N.M. 522, 526, 892 17 P.2d 969, 973 (Ct. App. 1995). Although Wife points this Court to deeds admitted 18 into evidence, she has not provided any arguments to rebut the conclusion that 19 Husband possessed equitable title to Vulcan I prior to the marriage. See Michaluk v.

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1 Burke, 105 N.M. 670, 677, 735 P.2d 1176, 1183 (Ct. App. 1987) (holding that 2 property was separate property of a husband where he had equitable title to property 3 prior to his marriage but received the deed for the property during the marriage). In 4 addition, Wife has not provided this Court with any other evidence or arguments as 5 to why Husband’s brother’s testimony was insufficient to prove the time and manner 6 of Vulcan I’s acquisition, or to any evidence that indicates that community funds were 7 used to purchase Vulcan I. See Rule 12-213(A)(4) NMRA; see also Aspen 8 Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 28, 135 N.M. 9 607, 92 P.3d 53 (explaining that a party challenging a finding for lack of substantial 10 evidence must refer to “all of the evidence, both favorable and unfavorable, followed 11 by an explanation of why the unfavorable evidence does not amount to substantial 12 evidence, such as is necessary to inform both the appellee and the Court of the true 13 nature of the appellant’s arguments”). 14 Wife merely asserts to this Court that her factual position was correct and the 15 district court should have adopted it. See Lahr v. Lahr, 82 N.M. 223, 224, 478 P.2d 16 551, 552 (1970) (“We presume the correctness of the judgment of the [district] court 17 who had the advantage of evaluating the demeanor of the parties and of the 18 witnesses.”). In such a situation, the district court was free to accept Husband’s 19 evidence and reject Wife’s evidence. Zemke, 116 N.M. at 120, 860 P.2d at 762; Jay

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1 Walton Enters., Inc. v. Rio Grande Oil Co., 106 N.M. 55, 59, 738 P.2d 927, 932 (Ct. 2 App. 1987) (“Where evidence is conflicting and the court adopts findings on a 3 disputed issue, the fact that there may have been other evidence upon which the court 4 could have adopted a different finding does not constitute error.”). Wife has failed to 5 meet her burden. We thus conclude that substantial evidence supported the district 6 court’s determination that Vulcan I was acquired solely by Husband prior to entering 7 in the marriage, and affirm its conclusion that Vulcan I was Husband’s sole and 8 separate asset. 9 III. Reimbursement of Wife’s Separate Funds 10 The district court concluded that neither party was entitled to reimbursement 11 for their sole and separate contributions to the gambling habits and debts incurred 12 during the marriage. It also refused to reimburse Wife for any separate money that 13 may have been used to contribute to Husband’s investment in Vulcan I. Wife asks 14 this Court to reverse these conclusions and reimburse her for money taken from her 15 separate account to pay off a portion of the gambling debt and for money that she 16 asserts was wrongfully taken from her separate account by Husband and invested in 17 Vulcan I. 18 “Although mathematic exactitude is not required in the division of community 19 assets, it is the duty of the district courts, upon dissolution of a marriage, to divide as

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1 equally as possible the property of the community.” Bustos v. Bustos, 100 N.M. 556, 2 558, 673 P.2d 1289, 1291 (1983). To perform this duty, the district court has broad 3 discretion to allocate property in a manner that “is fair under all the circumstances.” 4 Fernandez v. Fernandez, 111 N.M. 442, 444, 806 P.2d 582, 584 (Ct. App. 1991); see 5 also Arnold, 2003-NMCA-114, ¶ 6. We have already concluded that substantial 6 evidence supported the district court’s classification of the gambling debt, and 7 therefore, are not persuaded by Wife’s argument that the district court abused its 8 discretion in refusing to reimburse Wife for her sole and separate contributions to the 9 gambling habits and debts incurred by the parties. The evidence presented at trial 10 shows that both parties used separate funds to pay off the gambling debts of the 11 parties. The allegations regarding Wife’s participation in gambling activities and the 12 voluntary contribution of her separate assets to fund such activities were conflicting. 13 The district court chose to resolve such conflicts in favor of Husband. See Las Cruces 14 Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12 (stating that it is not our role to “reweigh 15 the evidence nor substitute our judgment for that of the fact finder”). 16 We next address Wife’s argument that she was entitled to reimbursement for 17 money used to invest in Vulcan I that Husband allegedly coerced Wife to withdraw 18 from her separate account. Wife essentially argues that the district court should have 19 credited the check for $19,000 written from her account as conclusive on this issue.

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1 However, the district court recognized the existence of this check, but refused to “go 2 back into the marriage and second[-]guess community expenditures.” This refusal to 3 speculate regarding the use of the $19,000 check stemmed from the conflicting 4 testimony heard from the parties. Wife asserted that she believed the money was 5 going to be used to purchase land. Husband asserted that the money was loaned to a 6 partner in Vulcan I ventures and was later paid back to Husband and Wife’s joint 7 account. To resolve this conflict, the district court explained that, “[j]udging [Wife’s] 8 demeanor and credibility during her testimony, the [c]ourt finds it unlikely that [Wife] 9 could be coerced into spending her money, except as she so desired.” Again, we will 10 not reweigh the evidence or substitute our own judgment for that of the district court. 11 Las Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12. 12 The district court had broad discretion to determine whether Wife was entitled 13 to any reimbursement. Wife did not describe the overall division of property and debt 14 between the parties, explain why it was inequitable, or otherwise demonstrate any 15 error on the part of the district court. Wife has not pointed this Court to any evidence, 16 other than her own testimony, to corroborate her assertion that this money was 17 wrongfully taken from her separate account and invested in Vulcan I. Nor has she 18 attempted to discredit the conflicting evidence Husband presented to the district court. 19 See In re Termination of Parental Rights of Wayne R.N., 107 N.M. 341, 345, 757 P.2d

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1 1333, 1337 (Ct. App. 1988) (“It is for the [district] court to weigh the evidence, 2 resolve conflicts in the testimony, and determine where the truth lies. On appeal, this 3 [C]ourt may not substitute its judgment for that of the [district] court.”). In the 4 absence of clearly demonstrated error, the resolution of factual disputes regarding any 5 reimbursement of funds is within the district court’s broad discretion, and this Court 6 will not disturb it on appeal. Buckingham, 1998-NMCA-012, ¶ 10. 7 IV. The Vulcan II Investment 8 The district court concluded that Husband and Wife each had a separate 9 property interest in Vulcan II. However, to allocate each party’s separate interest, the 10 district court had to determine the character of two related wire transactions sent by 11 Wife’s brothers to Wife for a sum of $156,000. The district court concluded that these 12 wire transfers were payment for the purchase of an interest in Wife’s percentage 13 interest in Vulcan II. Wife challenges the sufficiency of the evidence for this 14 conclusion on appeal. 15 Wife contended at trial, and now argues on appeal, that the wire transfers were 16 a loan to the community and, therefore, should be reimbursed by the community. The 17 district court, however, believed Husband’s testimony that money was transferred to 18 purchase a portion of Wife’s percentage interest in Vulcan II. Husband’s testimony 19 was corroborated by testimony from Wife’s brother and by a letter sent by Wife three

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1 months after receipt of the wire transfer that assigned her brothers a percentage 2 interest of her ownership interest in Vulcan II. 3 Wife’s argument is again essentially an assertion that the district court should 4 have given more weight to her testimony. As previously stated, “when there is a 5 conflict in the testimony, we defer to the trier of fact.” Buckingham, 1998-NMCA- 6 012, ¶ 10. “The question is not whether substantial evidence exists to support the 7 opposite result, but rather whether such evidence supports the result reached.” Las 8 Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12. Resolving all disputes, as we 9 must, in favor of the district court’s decision, we conclude that substantial evidence 10 from the record supported the district court’s findings of fact, and its resulting 11 conclusion that the $156,000 wired to Wife from her brothers was used to purchase 12 a portion of Wife’s percentage interest in Vulcan II. 13 V. Wife’s Rule 1-060(B)(3) Motion 14 When the district court explained its perception that Wife’s Exhibit WW 15 provided additional corroboration for Husband’s testimony related to the Vulcan II 16 investment, Wife asserted that her signatures on Exhibit WW were forged. However, 17 Wife failed to present sufficient evidence to the district court to support her argument 18 that the signatures were forgeries. Wife again raised the assertion that her signatures 19 were forged after the district court entered judgment by filing a Rule 1-060(B)(3)

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1 NMRA motion to set aside the judgment on the basis of fraud. On appeal, Wife 2 requests that this Court remand the case to the district court for the purposes of 3 hearing her Rule 1-060(B)(3) motion. 4 “Since the [district] court is powerless to grant relief under Rule [1-060(B)] 5 during the pendency of an appeal, a party seeking such relief must file a motion in the 6 appropriate appellate court requesting that the case be remanded to the [district] court 7 for consideration of the Rule [1-060(B)] motion.” State ex rel. Bell v. Hansen Lumber 8 Co., 86 N.M. 312, 313, 523 P.2d 810, 811 (1974). “A case will be remanded only 9 where the showing reasonably indicates that, if leave is given, the [district] court 10 might properly grant the Rule [1-060(B)] motion.” Id. Wife has filed no such motion 11 requesting remand by this Court. Additionally, Wife has not met her burden of 12 producing evidence that the district court might properly grant her motion. As a 13 result, we will not reach the merits of Wife’s motion, nor will we remand this case to 14 the district court for the limited purpose of hearing Wife’s motion. 15 V. Interim Division of Income 16 Wife contests the district court’s findings of fact and conclusions of law related 17 to the district court’s decision to equalize interim division payments made by Husband 18 to Wife throughout the course of divorce proceedings. We review this argument for 19 substantial evidence. See Olivas v. Olivas, 108 N.M. 814, 820, 780 P.2d 640, 646 (Ct.

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1 App. 1989) (upholding a property valuation for purposes of making an equal division 2 of property because it was supported by substantial evidence). The district court acts 3 within its discretion in allocating community assets and expenses. See Bursum v. 4 Bursum, 2004-NMCA-133, ¶ 31, 136 N.M. 584, 102 P.3d 651 (holding that the 5 district court did not abuse its discretion by the manner that it equalized community 6 expenses). 7 The district court equalized the interim income payments because it found 8 Wife’s previous assertion, that she received no monthly income, was “disingenuous.” 9 We will not reweigh the district court’s credibility determinations on appeal. See 10 Lahr, 82 N.M. at 224, 478 P.2d at 552. Additionally, Wife has failed to provide this 11 Court with any evidence to rebut the district court’s equalization of its initial interim 12 division of income. See Rule 12-213(A)(4); see also Aspen Landscaping, Inc., 2004- 13 NMCA-063, ¶¶ 28-29. Once Wife’s 2008 income was disclosed at a later time, such 14 a equalization was appropriate. As a result, substantial evidence supported the district 15 court’s findings and conclusions related to the interim division of income payments, 16 and the district court’s decision to equalize interim division of income payments was 17 not an abuse of discretion. 18 CONCLUSION 19 For the foregoing reasons, we affirm the judgment of the district court. Because

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1 we determine that Wife is not entitled to any additional sums, we need not address her 2 argument that she is entitled to a lien against Husband’s separate medical practice to 3 enforce payment of any such sums. 4 IT IS SO ORDERED.

5 ___________________________________ 6 TIMOTHY L. GARCIA, Judge

7 WE CONCUR:

8 _________________________________ 9 JAMES J. WECHSLER, Judge

10 _________________________________ 11 MICHAEL D. BUSTAMANTE, Judge