Martinez v. Martinez

• Court: New Mexico Court of Appeals
• Decided: June 13, 2012
• Docket: 31,863
• Status: Unpublished

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 JOHNNY J. MARTINEZ,

3 Petitioner-Appellant,

4 v. NO. 31,863

5 DEBORAH E. MARTINEZ,

6 Respondent-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 John F. Davis, District Judge

9 Trujillo Dodd, Torres, O’Brien, Sanchez, L.L.C. 10 Donna Trujillo Dodd 11 Albuquerque, NM

12 for Appellant

13 Rozan Cruz & Associates 14 Rozan Cruz 15 Corrales, NM

16 for Appellee

17 MEMORANDUM OPINION

18 VIGIL, Judge. 1 Petitioner appeals from the district court’s order dissolving the parties’

2 marriage, challenging the district court’s inclusion of Petitioner’s veterans’ disability

3 benefits as income when it entered the interim order allocating income and expenses

4 between the parties. We issued a notice of proposed summary disposition, proposing

5 to affirm. Petitioner has filed a response to our notice. We have considered

6 Petitioner’s response and remain unpersuaded that he has established reversible error.

7 We affirm.

8 On appeal, Petitioner contends that because his veterans’ disability benefits

9 cannot be characterized as community property, the district court erred by including

10 those benefits as income for purposes of dividing income between the parties in the

11 interim order allocating income and expenses, pending the divorce. Our notice

12 recognized that our review of the district court’s exercise of its power to enter an

13 interim allocation order is for abuse of discretion. See Bursum v. Bursum,

14 2004-NMCA-133, ¶ 29, 136 N.M. 584, 102 P.3d 651 (reviewing for abuse of

15 discretion the district court’s decision to require the husband to pay the wife $50,000

16 to equalize the litigation costs as part of the district court’s power to enter an interim

17 order to allocate expenses); see also NMSA 1978, § 40-4-7(A) (1997) (stating that

18 during the pendency of divorce proceedings, the district court may enter an order “to

19 provide for the support of either party . . . as in its discretion may seem just and

2 1 proper”). We further recognized that Rule 1-122(A) NMRA permits a district court,

2 in its discretion, to divide separate income as part of its interim allocation order, if it

3 deems such a division appropriate under the circumstances, even if veterans’ disability

4 benefits are not considered community property in New Mexico and even where the

5 district court ultimately determined that those benefits were Petitioner’s separate

6 property. [RP 85]

7 In response to our notice, Petitioner recognizes that Rule 1-122(A) permits the

8 district court to divide separate income and expenses, if appropriate, but contends that

9 the district court did not indicate that the veterans’ disability benefits were separate

10 income being considered for interim purposes, and thus grouped it with all the money

11 without a finding that it was appropriate and wrongfully treated the benefits as

12 community income. [MIO 4, 7] As our notice observed, however, there is support in

13 the record for the district court’s allocation of income. On appeal, our job is to resolve

14 all disputes of facts in favor of the successful party and indulge all reasonable

15 inferences in support of the prevailing party. See Las Cruces Prof’l Fire Fighters v.

16 City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. The record

17 shows that during the pendency of the proceedings, Petitioner had a net spendable

18 income of $4,419 per month and that Respondent had a net spendable income of

19 negative $24 per month. [RP 44-46] It appears that to equalize the expenses during

3 1 the pendency of the divorce proceeding, the district court split the parties’ combined

2 net spendable income in half, requiring Petitioner to temporarily transfer $2,221.50

3 a month to Respondent. [RP 46] See Rule 1-122(A) (“Absent exceptional

4 circumstances, during the pendency of a dissolution of marriage or Section 40-4-3

5 NMSA 1978 proceeding, community income and expenses shall be equally divided

6 between the parties. Upon motion, separate income and expenses may also be divided

7 if appropriate.” (emphasis added)). We are not persuaded that the district court

8 needed to make a finding that the division of the veterans’ disability benefits was

9 appropriate in order for us to affirm, particularly where we find clear support in the

10 record for the district court’s division.

11 For these reasons and those stated in our notice, we affirm.

12 IT IS SO ORDERED.

13 __________________________________ 14 MICHAEL E. VIGIL, Judge

15 WE CONCUR:

16 _________________________________ 17 TIMOTHY L. GARCIA, Judge

18 _________________________________ 19 J. MILES HANISEE, Judge