Lopez v. Lopez

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 ALBERT LOPEZ, 3 Petitioner-Appellee, 4 v. NO. 31,217 5 SYLVIA LOPEZ, 6 Respondent-Appellant,

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 James T. Martin, District Judge

9 The Laws Offices of Michael J. Dugan, LLC 10 Michael J. Dugan 11 Las Cruces, NM

12 for Appellee

13 The Joshua Foundation 14 Martin H. Poel 15 Las Cruces, NM

16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge. 19 {1} Wife appeals a judgment and final decree of dissolution of marriage,

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1 challenging various divisions of the marital property, the award of Husband’s attorney 2 fees, and the award of spousal support to her. For the reasons discussed below, we 3 affirm. 4 I. BACKGROUND 5 {2} On August 17, 2005, Husband filed a petition for dissolution of marriage. After 6 a long and contentious proceeding, the district court filed its judgment and final decree 7 of dissolution of marriage on November 24, 2009. Two real properties owned by the 8 parties were determined to be community property, with the residence allocated to 9 Wife and the business property to Husband. An undeveloped lot was determined to 10 be separate property with a $6,000 community lien against the lot. A $36,208 tax debt 11 was allocated to Husband, and he was awarded his individual retirement account 12 (IRA) valued at $126,000. The district court determined that the lengthy litigation had 13 resulted primarily due to Wife’s insistence on an unrealistic valuation of the 14 community business and ordered her to pay Husband’s attorney fees and costs in the 15 amount of $30,805.50. Lastly, Husband was ordered to pay spousal support of $450 16 per month to Wife for 120 months. 17 {3} Wife appealed to this Court and Husband filed a notice of cross-appeal. After 18 Husband failed to timely file an answer brief in Wife’s appeal or a brief in chief in his 19 cross-appeal, we dismissed the cross-appeal and notified the parties by order on March

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1 7, 2012, that Wife’s appeal would be submitted to a panel for decision only on the 2 brief in chief. Our order notwithstanding, and without leave of the court, Husband 3 filed an answer brief and brief in chief on the cross appeal. Pursuant to our March 7, 4 2012 order, we have not considered them. 5 II. DISCUSSION 6 {4} Wife appeals, challenging: (1) the community status of the three properties; (2) 7 the amount of the tax debt allocated to Husband; (3) the amount and allocation of 8 Husband’s IRA account; (4) the award of Husband’s attorney fees and costs; and (5) 9 the amount of spousal support awarded to her. To the extent Wife contends that the 10 decision of the district court on these issues constitutes punitive damages or 11 demonstrate bias by the district court, her arguments are undeveloped in her brief and 12 unsupported by citations to the record or applicable case law and we do not consider 13 them. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 14 110 P.3d 1076 (stating that the appellate courts of New Mexico need not entertain 15 inadequately developed arguments). We address each issue in turn. 16 1. Community Status of Properties 17 {5} Over the course of their marriage, the parties acquired three properties: a 18 marital residence located on Northwind Road, property on S. Alameda Boulevard 19 where the community business is located, and an undeveloped lot on Kansas Street

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1 that was a gift from Wife’s father. Prior to filing for divorce, Husband signed a 2 quitclaim deed on each property, transferring the properties to Wife as her sole and 3 separate property in return for a stated consideration. After hearing conflicting 4 testimony from the parties regarding their intentions concerning the deeds, the district 5 court determined that “[t]he marital residence located at 5033 Northwind is a 6 community asset with a value of $350,000, and shall be allocated to [Wife],” “[t]he 7 property located at 303 S. Alameda is a community asset with a value of $195,000, 8 which shall be taken by [Husband] as his sole and separate property,” and “[t]he 9 property located at Kansas St. is the sole and separate property of [Wife]” with “a 10 community lien on the property in the amount of $6,000 . . . allocated to [Wife].” 11 {6} Wife’s argument focuses on the validity of the quitclaim deeds and whether the 12 district court committed reversible error in not recognizing the deeds as “unambiguous 13 written manifestations of signed, and notarized contracts through which [Husband] 14 conveyed all his interest in the real properties . . . to [Wife] as her sole and separate 15 property in return for consideration paid[.]” See NMSA 1978, § 47-1-30 (1953) 16 (stating that “[a] deed in substance following the form entitled ‘quitclaim deed’ shall, 17 when duly executed, have the force and effect of a deed in fee simple to the grantee, 18 his heirs and assigns, to his and their own use of any interest the grantor owns in the 19 premises, without warranty”). However, the existence of a valid quitclaim deed does

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1 not conclusively establish the transmutation of property. See Allen v. Allen, 98 N.M. 2 652, 654-55, 651 P.2d 1296, 1298-99 (1982). Thus, we address Wife’s argument that 3 the district court erred in determining that the properties were community in nature, 4 despite the quitclaim deeds indicating otherwise. The district court decisions in 5 making an equitable division of community property and debts are reviewed for an 6 abuse of discretion, but the threshold question of whether a particular asset is 7 community property is a question of law reviewed de novo. Arnold v. Arnold, 2003- 8 NMCA-114, ¶ 6, 134 N.M. 381, 77 P.3d 285. 9 {7} We begin by noting that despite Wife’s apparent argument to the contrary, the 10 Kansas lot was awarded to her as her sole and separate property. The $6,000 amount 11 for the Kansas lot listed on Exhibit 1 of the judgment and final decree is a community 12 lien for the amount which Husband testified were spent on taxes and cleaning of the 13 property during the marriage. The community is entitled to a lien against the separate 14 property of a spouse for any expenses incurred in preserving and improving the 15 property. Bustos v. Bustos, 100 N.M. 556, 558, 673 P.2d 1289, 1291 (1983). Thus, 16 we do not address Wife’s argument regarding the quitclaim deed on the Kansas 17 property. 18 {8} “Property acquired during marriage by either husband or wife, or both, is 19 presumed to be community property.” NMSA 1978, § 40-3-12(A) (1973). The

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1 Northwind property was purchased during the marriage in 2000 with community 2 funds, and the Alameda property was also purchased during the marriage in 2003. 3 Thus, both properties are presumed to be community property. See Michelson v. 4 Michelson, 89 N.M. 282, 288, 551 P.2d 638, 644 (1976) (“Property acquired in New 5 Mexico takes its status as community or separate property at the time and by the 6 manner of its acquisition[.]” (alteration, internal quotation marks, and citation 7 omitted)). 8 {9} “Transmutation is a general term used to describe arrangements between 9 spouses to convert property from separate property to community property and vice 10 versa. While transmutation is recognized, the party alleging the transmutation must 11 establish the transmutation of property . . . by clear, strong and convincing proof.” 12 Allen, 98 N.M. at 654, 651 P.2d at 1298 (citation omitted). Further, the court’s power 13 to apportion assets in an equitable manner includes the ability to give effect to the 14 parties’ intentions, whether or not the parties strictly comply with the community 15 property or debt statutes. Fernandez v. Fernandez, 111 N.M. 442, 444, 806 P.2d 582, 16 584 (Ct. App. 1991). 17 {10} The parties presented conflicting testimony about their intentions concerning 18 the quitclaim deeds. Wife testified that Husband signed the deeds granting her the 19 property in exchange for her interest in the community business as a potential

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1 settlement of their anticipated divorce. Husband testified that he signed the deed for 2 the Northwind property in reliance on Wife’s statements that he needed to sign the 3 document in order to allow Wife to sell the residence. Husband further testified that 4 he had no intent to give up his interest in the Northwind property by signing the deed 5 and that he expected the proceeds of the sale to be split. As to the Alameda property, 6 Husband asserted that he had signed what he believed was a second deed for the 7 Northwind property, but Wife later attached a description of the Alameda property and 8 filed it as the Alameda quitclaim deed. Husband further stated that he never intended 9 to sign a quitclaim deed for the Alameda property. Husband’s testimony is supported 10 by the fact that the community business is located on the Alameda property, and there 11 is no evidence that Husband received any payment for the properties, despite the 12 language indicating otherwise on the deeds. 13 {11} After reviewing the record, we are not convinced that the district court erred in 14 concluding that Wife failed to meet her burden of proof that the Northwind and 15 Alameda properties were transmuted into her separate property. See Allen, 98 N.M. 16 at 654-55, 651 P.2d at 1298-99 (holding that the appellee had not met his burden of 17 clear, strong, and convincing proof to establish transmutation of the appellant’s 18 separate property, despite a valid quitclaim deed executed by the appellant to the 19 community during the marriage). Thus, the district court is affirmed.

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1 2. Tax Debt 2 {12} The district court determined that “[t]he parties owe(d) $36,[208] in taxes, 3 which shall be allocated to [Husband].” On appeal, Wife argues that “the [district 4 c]ourt’s decision to award a tax debt to [Husband] in the amount of $36,208 failed to 5 meet the substantial evidence standard” because “[Husband] offered no evidence that 6 there is a tax liability, much less the value of it, other than his unsupported testimony.” 7 {13} In reviewing a sufficiency of the evidence claim, we view the evidence in the 8 light most favorable to the prevailing party and disregard evidence and inferences to 9 the contrary. Weidler v. Big J Enters., Inc., 1998-NMCA-021, ¶ 30, 124 N.M. 591, 10 953 P.2d 1089. “The question is not whether substantial evidence exists to support 11 the opposite result, but rather whether such evidence supports the result reached.” Las 12 Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 13 329, 940 P.2d 177. “Additionally we will not reweigh the evidence nor substitute our 14 judgment for that of the fact finder.” Id. 15 {14} Husband testified that the community had incurred tax liabilities of 16 approximately $36,208 during the 2005-2008 tax years. Wife’s testimony was limited 17 to explaining that she was unable to access to the necessary information to enable her 18 to state a definitive amount of the debt. “Substantial evidence is such relevant 19 evidence that a reasonable mind would find adequate to support a conclusion.”

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1 Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990). Husband’s 2 testimony constitutes sufficient evidence to support the district court’s finding 3 regarding the value of the tax liabilities. Thus, we affirm the district court. 4 3. IRA Account 5 {15} An IRA was owned by the community when Husband filed for divorce. 6 Husband admitted that because he had withdrawn money from the IRA to make 7 payments and pay other expenses during the divorce proceedings, the value of the IRA 8 had diminished from $375,945 in 1999, to $126,000 in August 2005, to $0 on the 9 second day of trial on October 13, 2009. These withdrawals violated the district court 10 interim order. 11 {16} During a hearing on July 25, 2007, the district court stated that “I’m going to 12 order you [Husband] to go back to August 17, 2005, and you’re going to put together 13 every little scrap of paper that identifies how you spent this IRA money. Because as 14 of August 17, 2005, you are going to provide a bank statement which tells me and 15 opposing counsel what the value of that IRA was. And I will allow you to deduct 16 reasonable expenses against that IRA. If you’re unable to produce a receipt to justify 17 how you spent that money, I’m going to award that value to [Wife].” An order was 18 entered a year later on July 24, 2008 (“July 24th order”), which stated “[t]he parties 19 shall identify the value of any retirement accounts at the time of filing [by Husband]

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1 in this matter and shall further identify all withdrawals and expenditures from that 2 account. The value of any unidentified expenditures or withdrawals shall be awarded 3 to the other party should this case not reach settlement.” The district court later 4 allocated the retirement account in the amount of $126,000 to Husband. There is no 5 evidence that Husband ever submitted any documentation to the court concerning his 6 withdrawals from the IRA. 7 {17} Wife first argues that the district court committed reversible error when the 8 written order was filed on grounds that it did not contain language requiring Husband 9 to produce documentation and the district court lost jurisdiction to amend its ruling 10 from the hearing after sixty days. We find no merit in Wife’s argument that the verbal 11 order of the district court was amended in the July 24th order. The July 24th order 12 clearly ordered that “[t]he parties shall identify the value of any retirement accounts 13 at the time of filing [by Husband] in this matter and shall further identify all 14 withdrawals and expenditures from that account. The value of any unidentified 15 expenditures or withdrawals shall be awarded to the other party should this case not 16 reach settlement.” 17 {18} Wife next challenges the finding of the district court that the IRA was worth 18 $126,000 as unsupported by substantial evidence because “[t]he [district c]ourt 19 accepted [Husband]’s unsupported claim that the community IRA was only worth

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1 $126,000.” As noted earlier, Husband testified that the value of the IRA was 2 $126,000 in August 2005 when he filed for divorce. Wife gave no testimony on the 3 value of the IRA. The only evidence regarding the value of the IRA was the 4 testimony by Husband, which constitutes substantial evidence in support of the 5 finding of the district court. See Lahr v. Lahr, 82 N.M. 223, 224, 478 P.2d 551, 552 6 (1970) (stating that “[an owner’s] testimony alone constitutes substantial evidence to 7 support the trial court’s valuation at that figure”). 8 {19} Lastly, Wife argues that the district court committed reversible error when it 9 failed to award the full value of the IRA to her pursuant to its order from the July 25, 10 2007 hearing. We do not reach the merits of Wife’s argument because it has not been 11 preserved for consideration on appeal. 12 {20} “To preserve an issue for review on appeal, it must appear that appellant fairly 13 invoked a ruling of the trial court on the same grounds argued in the appellate court.” 14 Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987). 15 After review of the record, we are unable to determine that Wife brought this 16 argument before the district court and Wife has failed to cite in her brief in chief how 17 this issue was preserved for our review. See Crutchfield v. N.M. Dep’t of Taxation & 18 Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“[O]n appeal, the 19 party must specifically point out where, in the record, the party invoked the court’s

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1 ruling on the issue. Absent that citation to the record or any obvious preservation, we 2 will not consider the issue.”). Consequently, we do not address Wife’s final argument 3 regarding the district court’s allocation of the IRA. 4 4. Husband’s Attorney Fees 5 {21} The district court determined that “[b]ased upon the parties’ relative positions 6 regarding the value of [the community business], the ultimate determination of the 7 value, and the cost of litigation based upon the parties’ positions, [Wife] is ordered to 8 pay all of [Husband]’s legal fees and costs associated with this litigation. [Husband’s 9 attorney’s] hourly rate of $190.00 per hour is reasonable. . . . This amount is due and 10 payable to [Husband]. [Wife] shall pay $30,805.50 to [Husband’s attorney’s trust 11 account] within 30 days of the date of entry of this Order.” The basis of the award of 12 Husband’s attorney fees is the affidavit submitted by Husband’s attorney. 13 {22} Following entry of the judgment and final decree, both parties filed motions to 14 amend, challenging various aspects of the order. With regard to Husband’s attorney 15 fees, Wife questioned the validity of the attorney’s affidavit and argued that the 16 reasoning behind the award of attorney fees was erroneous because the delays in the 17 proceedings were caused by Husband and that Husband was in a better place to pay 18 his own attorney fees than Wife. The district court denied Wife’s motion, citing Rule 19 1-127 NMRA and noting that its decision to award Husband his attorney fees was

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1 based on: (1) the fact that Wife took significantly more assets than Husband; (2) 2 Wife’s unreasonable insistence that the community business was worth $1,000,000, 3 when it was actually valued at $27,000; (3) Wife’s use of various assets and income 4 during the litigation; and (4) Wife’s lack of success on the merits. The district court 5 did not address Wife’s argument regarding the use of the attorney’s affidavit in 6 support of the amount of attorney fees. 7 {23} Following the hearing, but prior to entry of the amended final decree, Wife filed 8 a second motion to amend the attorney fees, focusing on the attorney’s affidavit. On 9 March 22, 2011, the district court filed the amended final decree, stating that 10 “[Wife]’s request regarding attorney fees is denied.” A hearing was then held on 11 Wife’s second motion on April 14, 2011. At the hearing, the parties made their 12 arguments regarding the attorney’s affidavit, and the district court requested that 13 Husband’s attorney submit his billing records for an in camera review. Husband’s 14 attorney was given two weeks to submit his billing records, at which point the district 15 court would review them and rule on whether the amount in the affidavit was 16 reasonable. 17 {24} Before the district court ruled on Wife’s second motion to amend, she filed 18 notice of appeal with this Court, once again disputing the attorney’s affidavit and 19 arguing at length regarding the reasons given by the district court in support of its

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1 decision and the punitive nature of the award. However, these arguments on 2 Husband’s attorney fees are not properly before us at this time. 3 {25} “[O]ur appellate jurisdiction is limited to review of ‘any final judgment or 4 decision, any interlocutory order or decision which practically disposes of the merits 5 of the action, or any final order after entry of judgment which affects substantial 6 rights[.]’” Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 17, 140 7 N.M. 920, 149 P.3d 1017 (quoting NMSA 1978, § 39-3-2 (1966)). “Where a 8 judgment declares the rights and liabilities of the parties to the underlying 9 controversy, a question remaining to be decided thereafter will not prevent the 10 judgment from being final if resolution of that question will not alter the judgment or 11 moot or revise decisions embodied therein.” Kelly Inn No. 102, Inc. v. Kapnison, 113 12 N.M. 231, 238, 824 P.2d 1033, 1040 (1992). While Wife’s pending motion to amend 13 does not impact her other issues on appeal, we decline to consider her arguments 14 regarding Husband’s attorney fees until after the district court has had an opportunity 15 to rule on her second motion to amend. 16 5. Spousal Support 17 {26} The district court determined that “[i]n light of the length of the marriage, the 18 parties[’] respective ages, health, income, ability to support themselves, spousal 19 support shall be ordered. [Husband] shall pay to [Wife] the amount of $450 per

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1 month in nonmodifiable spousal support for 120 months beginning November 2009.” 2 Wife argues that the district court committed reversible error in its award because it 3 is unreasonable. 4 {27} “The decision to grant or deny alimony is within the sound discretion of the 5 trial court, and its decision will be altered only upon a showing of an abuse of that 6 discretion.” Ellsworth v. Ellsworth, 97 N.M. 133, 134, 637 P.2d 564, 565 (1981). In 7 determining whether an alimony award is just and proper, the district court should 8 consider the following:

9 (1) the age and health of and the means of support for the 10 respective spouses; 11 (2) the current and future earnings and the earning capacity of 12 the respective spouses; 13 (3) the good-faith efforts of the respective spouses to maintain 14 employment or to become self-supporting; 15 (4) the reasonable needs of the respective spouses, including: 16 (a) the standard of living of the respective spouses during 17 the term of the marriage; 18 (b) the maintenance of medical insurance for the 19 respective spouses; and 20 (c) the appropriateness of life insurance, including its 21 availability and cost, insuring the life of the person who is to pay support 22 to secure the payments, with any life insurance proceeds paid on the 23 death of the paying spouse to be in lieu of further support; 24 (5) the duration of the marriage; 25 (6) the amount of the property awarded or confirmed to the 26 respective spouses; 27 (7) the type and nature of the respective spouses’ assets; 28 provided that potential proceeds from the sale of property by either 29 spouse shall not be considered by the court, unless required by 30 exceptional circumstances and the need to be fair to the parties;

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1 (8) the type and nature of the respective spouses’ liabilities; 2 (9) income produced by property owned by the respective 3 spouses; and 4 (10) agreements entered into by the spouses in contemplation of 5 the dissolution of marriage or legal separation.

6 NMSA 1978, § 40-4-7(E) (1997). The district court abuses its discretion when it fails 7 to consider these relevant statutory factors in determining an award or fixes an amount 8 which is contrary to all reason. See Weaver v. Weaver, 100 N.M. 165, 167, 667 P.2d 9 970, 972 (1983); Seymour v. Seymour, 89 N.M. 752, 755, 557 P.2d 1101, 1104 (1976). 10 {28} Wife refers to the value of the business, the length of the marriage, the annual 11 income earned during the marriage, and the division of property to argue that the 12 district court failed to consider the statutory factors in its decision. However, the 13 language of the judgment and final decree and the oral ruling of the district court 14 demonstrate that the district court did in fact consider the statutory factors in it 15 awarding spousal support to Wife. Wife makes no further argument on this issue. 16 Headley, 2005-NMCA-045, ¶ 15 (“We will not review unclear arguments, or guess 17 at what [a party’s] arguments might be.”). We are unpersuaded that the district court 18 abused its discretion in its award of spousal support. 19 CONCLUSION 20 {29} The district court is affirmed. 21 {30} IT IS SO ORDERED.

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1 _____________________________ 2 MICHAEL E. VIGIL, Judge

3 WE CONCUR:

4 ___________________________________ 5 RODERICK T. KENNEDY, Chief Judge

6 _________________________________ 7 LINDA M. VANZI, Judge