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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 NORMAN L. MARTINEZ, 3 Petitioner-Appellant, 4 v. No. 31,790 5 BEATRICE R. VIGIL-MARTINEZ, 6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 8 Glenn T. Ellington, District Judge
9 Familia Legal Services 10 Lorenzo E. Atencio 11 Española, NM
12 for Appellant
13 William Ivry 14 Santa Fe, NM
15 for Appellee 16 MEMORANDUM OPINION 17 SUTIN, Judge.
1 {1} Norman Martinez (Husband) appeals from the district court’s amended order 2 that divided Husband’s retirement benefits between Husband and his former wife, 3 Beatrice Vigil-Martinez (Wife). The court’s order constituted the enforcement of a 4 lien against Husband’s retirement account that was granted as security for a money 5 judgment owed by Husband to Wife as ordered in a final decree of the couple’s 6 divorce. After Husband and Wife were divorced, Husband’s debts were discharged 7 in bankruptcy court, however, Wife was listed as a creditor holding a secured claim. 8 We affirm. 9 BACKGROUND 10 {2} In April 2001, Husband filed for a divorce from Wife. On August 26, 2002, the 11 district court entered a final decree of divorce (the divorce decree). Among other 12 provisions in the divorce decree, the district court ordered that “[e]ach of the parties 13 is awarded their respective retirement[] accounts as their sole and separate property.” 14 The district court also ordered that Wife was granted a
15 judgment against [Husband] for the sum of $7,973.77 which represents 16 [Wife’s] one-half interest in the sale of community real estate, together 17 with interest thereon at the rate of six . . . percent per annum from 29 18 November 2000, the date said sum was deposited in [Husband’s] bank 19 account . . . to the date of this decree, and from the date of entry of this 20 decree said sum shall bear interest at the rate of ten . . . [percent] per 21 annum until paid in full. These provisions effect a lien upon 22 [Husband’s] retirement account . . . for the reason that the underlying 23 transaction and sale of said real estate was accomplished surreptitiously 24 by [Husband], and the evidence adduced at the trial of this case
3
1 established by clear and convincing evidence that [Husband] used 2 [Wife’s] community funds derived from said sale to purchase or 3 repurchase retirement funds as aforesaid for himself.
4 {3} On February 19, 2003, Husband filed for bankruptcy. Husband listed Wife 5 among the “creditors holding secured claims.” Husband stated that the value of 6 Wife’s secured claim was $9,000, and that the value of the security—his retirement 7 account—was $34,000. On May 19, 2003, the United States Bankruptcy Court for the 8 District of New Mexico granted Husband a discharge of his debt. Accompanying the 9 discharge order was an “Explanation of Bankruptcy Discharge in a Chapter 7 Case.” 10 In pertinent part, the explanation stated that creditors were prohibited from attempting 11 to collect a debt that had been discharged, “[h]owever, a creditor may have the right 12 to enforce a valid lien, such as a mortgage or security interest, against the debtor’s 13 property after the bankruptcy, if that lien was not avoided or eliminated in the 14 bankruptcy case.” Nothing in the record indicates that Wife’s lien on Husband’s 15 retirement account was “avoided or eliminated in the bankruptcy case.” 16 {4} In 2008, Wife knew that Husband was nearing retirement from his employment 17 with the State of New Mexico. Thus, in an effort to enforce her lien against 18 Husband’s retirement account, Wife prepared an order dividing retirement benefits. 19 On June 23, 2008, the district court entered an order dividing retirement benefits that 20 had been submitted to the district court by Wife, acting pro se. Husband was not
4
1 given notice of the order. By the June 2008 order, the district court ordered that 2 Husband’s Public Employees Retirement Association (PERA) monthly retirement 3 benefit payments would be divided between Husband and Wife, with Wife to receive 4 a set monthly sum until Husband’s debt to Wife was paid in full, pursuant to the 5 divorce decree. The order was rejected by PERA because it did not meet PERA’s 6 requirements. Thereafter, Wife secured counsel to act on her behalf in this matter. 7 Wife’s counsel requested that the court enter an amended order dividing the PERA 8 retirement benefits in April 2009, a copy of which was delivered to Husband’s 9 counsel, who filed a response on Husband’s behalf in May 2009. 10 {5} In August 2009, Husband filed a claim of exemption. The claim of exemption 11 purported to exempt “from collection by creditors any and all interest in or proceeds 12 from a pension or retirement fund pursuant to [NMSA 1978, Section 42-10-2 13 (1983)].” The claim did not reference the divorce decree, nor did it directly reference 14 Wife’s lien against Husband’s retirement account. 15 {6} Upon the district court’s request, each party submitted memoranda of law in 16 support of their respective positions as to whether Wife could enforce her lien against 17 Husband’s PERA retirement account pursuant to the divorce decree. The parties also 18 submitted proposed findings of fact and conclusions of law. On October 31, 2011, the 19 district court entered an amended order dividing the PERA retirement benefits in
5
1 which it ordered that Wife would receive fifty percent of Husband’s monthly gross 2 pension benefit payments until such time as the payments to Wife amounted to a total 3 sum of $21,173.80, thus giving effect to Wife’s lien on Husband’s retirement account. 4 The sum of $21,173.80 represented the principal amount of Husband’s debt to Wife, 5 $7,973.77, plus interest in the amount of $13,200.03, as calculated according to the 6 dictates of the divorce decree. Husband appeals from the court’s October 2011 order. 7 {7} On appeal, Husband argues that the district court lacked jurisdiction to secure 8 Husband’s debt to Wife by a lien against Husband’s retirement account, which he 9 claims was exempt from Wife’s claim as a creditor. Husband also argues that in 2008 10 the district court lacked jurisdiction to modify the divorce decree and that he was 11 deprived of due process by the court’s 2008 order. Finally, Husband argues that his 12 debt to Wife was discharged in the bankruptcy proceeding, and therefore, the debt 13 could not be collected by Wife. We are not persuaded by Husband’s arguments. 14 Accordingly, we affirm. 15 DISCUSSION 16 Standard of Review 17 {8} “Whether the district court is possessed of jurisdiction over the subject matter 18 of a case is a question of law that we review de novo.” Ottino v. Ottino, 2001- 19 NMCA-012, ¶ 6, 130 N.M. 168, 21 P.3d 37. Also, “questions of constitutional law
6
1 and constitutional rights, such as due process protections, [are reviewed] de novo.” 2 Los Chavez Cmty. Ass’n v. Valencia Cnty., 2012-NMCA-044, ¶ 12, 277 P.3d 475 3 (internal quotation marks and citation omitted). Finally, we also review, de novo, the 4 legal question whether the court erred in enforcing Wife’s lien against Husband’s 5 retirement account. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 6 N.M. 396, 970 P.2d 582 (stating that legal questions are reviewed de novo). 7 Husband Did Not Timely Appeal From the Divorce Decree 8 {9} Husband argues that the district court lacked subject matter jurisdiction, or 9 otherwise acted outside of its authority, when, in the divorce decree, the court ordered 10 that Husband’s debt to Wife would be secured by a lien on Husband’s retirement 11 account in the amount of the debt plus interest. Husband’s claim is primarily 12 grounded in Section 42-10-2. In sum, Husband argues that the district court erred in 13 securing Husband’s debt to Wife with a lien against his retirement account because, 14 pursuant to Section 42-10-2, his retirement account was exempt from Wife’s claim as 15 a creditor. 16 {10} Section 42-10-2 provides, in pertinent part, that “any interest in or proceeds 17 from a pension or retirement fund of every person supporting only himself is exempt 18 from receivers or trustees in bankruptcy or other insolvency proceedings, executors 19 or administrators in probate, fines, attachment, execution[,] or foreclosure by a
7
1 judgment creditor.” Our Supreme Court has held that the legislative intent behind the 2 enactment of Section 42-10-2 was “to allow for exemptions in certain funds, but that 3 it does not allow a debtor to find shelter in [the exemption provision] by perpetrating 4 a fraud upon his or her creditors.” Doña Ana Sav. & Loan Ass’n v. Dofflemeyer, 115 5 N.M. 590, 593, 855 P.2d 1054, 1057 (1993). Further, “the conversion of nonexempt 6 funds into funds that are ordinarily exempt under Section[] 42-10-2 . . . are not 7 automatically protected from attachment by creditors without an analysis of whether 8 the transfer served the underlying purpose of the exemption statute[] and was not in 9 furtherance of an intent to defraud creditors.” Doña Ana Sav. & Loan, 115 N.M. at 10 594, 855 P.2d at 1058. Thus, the question whether assets that are “exempt” under 11 Section 42-10-2 may nevertheless be subject to the claims of creditors turns on 12 “whether a debtor fraudulently converted nonexempt assets into exempt assets[.]” 13 Doña Ana Sav. & Loan, 115 N.M. at 593, 855 P.2d at 1057. 14 {11} Husband claims that the district court’s finding, in 2002, that he 15 “surreptitiously” converted community funds into his personal retirement account, did 16 not amount to a finding of fraud, as contemplated by the Supreme Court in 17 Dofflemeyer. Therefore, according to Husband, based on the exempt status of his 18 retirement account, the court was not permitted to secure his debt to Wife with a lien
8
1 against his retirement account. We interpret Husband’s claim to be an attempt to void, 2 for legal error, the lien provision of the divorce decree. 3 {12} As indicated in the background section of this Opinion, the divorce decree was 4 filed on August 26, 2002. Husband altogether fails to explain why, if he believed the 5 lien provision or any other aspect of the divorce decree to have been contrary to law, 6 he did not file a timely appeal therefrom thirty days after it was entered. See Rule 12- 7 201(A)(2) NMRA (providing that appeals shall be filed “within thirty . . . days after 8 the judgment or order appealed from is filed in the district court clerk’s office”). 9 Owing to Husband’s failure, until he filed the present appeal on July 16, 2012—nearly 10 ten years after the entry of the divorce decree—to raise any claim of error as to that 11 decree, we will not consider his claim that the court erred in securing his debt to Wife 12 by giving effect to a lien on his retirement account. See Govich v. N. Am. Sys., Inc., 13 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (holding that the timely filing of a notice 14 of appeal is a mandatory precondition to our exercise of jurisdiction). Husband does 15 not cite any authority that would permit him, at this late date, to attack the court’s 16 alleged legal errors contained in the divorce decree. In sum, we reject Husband’s 17 argument regarding alleged errors in the divorce decree. 18 The District Court Did Not Modify the Divorce Decree
9
1 {13} Husband argues that, pursuant to NMSA 1978, Section 39-1-1 (1917), the 2 district court lost jurisdiction over the divorce decree in September 2002, thirty days 3 after it was filed, and therefore, the court did not have jurisdiction in 2008 to modify 4 its judgment. Husband shows that the divorce decree awarded Husband and Wife 5 their respective retirement accounts as their sole and separate property. The premise 6 underlying his jurisdiction argument is that in June 2008, and again in October 2011, 7 the district court modified its judgment to reflect a redistribution of his retirement 8 benefits, by instructing PERA to give one-half of Husband’s monthly retirement 9 benefit payments to Wife until the amount of his debt to her was satisfied. Husband’s 10 premise is faulty, and his modification argument overlooks key aspects of the record. 11 {14} First, although the record reflects that the district court, in the divorce decree, 12 awarded Husband and Wife “their respective retirement[] accounts as their sole and 13 separate property” the court also, indisputably, granted Wife a lien against Husband’s 14 retirement account. Second, the record does not support Husband’s argument that the 15 district court modified the divorce decree either in 2008 or in 2011. Rather, the record 16 demonstrates that in 2008 the district court was only acting to protect and enforce 17 Wife’s lien. The court attempted to do so with its order instructing PERA—albeit 18 ineffectively—to make monthly payments from Husband’s retirement account to Wife 19 until the amount owed, pursuant to the divorce decree, was paid in full. The court’s
10
1 2011 amended order also reflected the district court’s intent not to modify the divorce 2 decree, but to enforce Wife’s lien against Husband’s retirement account. Once 3 Husband’s debt to Wife is satisfied, the court’s order provides that the funds 4 remaining in Husband’s retirement account belong solely to Husband. 5 {15} Thus, rather than modifying the terms of the divorce decree, the court’s 2011 6 order effectively did what the 2008 order attempted to do, that is, the order enforced 7 the terms of the divorce decree by designating half of Husband’s monthly retirement 8 benefit payments to Wife until her lien was satisfied. Because the court retained its 9 jurisdiction to enforce the divorce decree for as long as its terms remained in force, 10 the court had jurisdiction, at all times relevant to this appeal, to enforce Wife’s lien 11 against Husband’s retirement account. See Mendoza v. Mendoza, 103 N.M. 327, 333, 12 706 P.2d 869, 875 (Ct. App. 1985) (“As long as a judgment remains in force, the trial 13 court which rendered the judgment retains the authority to enforce its judgment where 14 the court has originally acquired jurisdiction.”). 15 {16} We note that Husband argues that “[t]his case is like Ruybalid v. Segura[, 107 16 N.M. 660, 763 P.2d 369 (Ct. App. 1988).]” The facts in Ruybalid are significantly 17 different from those in the case before us. Husband does not develop any argument 18 as to the manner in which Ruybalid is analogous to or should control the outcome in 19 this case. In our view, Ruybalid is not analogous and does not control the outcome
11
1 of this case, nor does it serve as persuasive authority for Husband’s arguments. In 2 sum, Husband’s argument that the court lacked jurisdiction to modify the divorce 3 decree does not provide a basis for reversal. 4 Husband’s Due Process Argument 5 {17} Husband argues that the district court’s 2008 order dividing retirement benefits 6 “effectively deprive[d him] of a substantial portion of his PERA benefits.” He further 7 argues that the order “effectively seiz[ed his] property to satisfy [the] judgment 8 without complying with the procedures for execution of a judgment set forth in Rule 9 1-065.1 [NMRA].” In addition, he argues that the order was “not signed by Husband 10 or his counsel.” And he argues further that there was “no hearing or post[-]judgment 11 motion prior to [its] entry[.]” Yet Husband acknowledges that the 2008 order was 12 rejected by PERA. Husband’s argument contradicts itself. 13 {18} “Constitutional due process clearly requires that before [a debtor] is finally 14 deprived of his property, a hearing must be provided on the relevant issues, including 15 his default, the existence of a lien, and the extent of his interest in the property.” 16 Gonzalez v. Gonzalez, 103 N.M. 157, 163, 703 P.2d 934, 940 (Ct. App. 1985). Thus, 17 had the 2008 order led to an actual deprivation of Husband’s property, his due process 18 claim might warrant reversal on appeal. Importantly, Husband does not argue that his 19 due process rights were violated by the district court’s 2011 amended order dividing
12
1 the PERA retirement benefits, nor does Husband attempt to show that the alleged due 2 process violation in 2008 somehow also affected his due process rights in 2011. 3 Under the circumstances of this case, where the 2008 order was rejected by PERA, 4 and it did not lead to a deprivation of Husband’s property, his due process argument 5 is unavailing.
6 Husband’s Argument That His Debt to Wife Was Discharged by the Bankruptcy 7 Court
8 {19} Husband argues that his “debt to Wife was discharged in [b]ankruptcy [c]ourt 9 on [May] 19, 2003[,] in its entirety, including any accrued interest on the balance.” 10 In support of his argument, Husband relies on Mares v. Schuth, 38 N.M. 101, 104-05, 11 28 P.2d 527, 529 (1933), for the proposition stated in that case that “[a] garnishment 12 judgment is only for the purpose of enforcing the payment of the main judgment, and 13 if there be no main judgment to enforce because of its annulment, then the purpose 14 and life of the judgment against the garnishee is ended.” (Internal quotation marks 15 and citation omitted.) Mares did not consider any bankruptcy-related collection issue, 16 and it does not bear any factual resemblance to this case; accordingly, Mares does not 17 stand as authority for Husband’s argument. 18 {20} Additionally, Husband, relying generally on Jacob v. Spurlin, 1999-NMCA- 19 049, 127 N.M. 127, 978 P.2d 334, argues for the first time in his reply brief that “[t]he 20 case law is clear that the state court is subject to a federal restraining order to enforce
13
1 the discharge.” Yet Husband fails to provide an explanation or an argument to 2 demonstrate why this case and his argument were not raised in his brief in chief, and 3 he fails to show how that proposition applies to the facts of this case. See Headley v. 4 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We 5 will not review unclear arguments, or guess at what [a party’s] arguments might be.”); 6 see also Wilcox v. N.M. Bd. of Acupuncture & Oriental Med., 2012-NMCA-106, ¶ 15, 7 288 P.3d 902 (declining to consider an argument raised for the first time in a reply 8 brief). Further, Husband fails to cite any law or evidence in the record to suggest that 9 a federal restraining order exists in this case that effectively forbade the district court 10 from executing Wife’s lien on his retirement account. See Muse v. Muse, 11 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the record 12 for facts, arguments, and rulings in order to support generalized arguments.”). In sum, 13 Husband’s arguments are unpersuasive. 14 {21} Husband’s debt to Wife was listed as a secured claim in Husband’s bankruptcy 15 case. Husband does not dispute Wife’s argument that the lien that secured that debt 16 survived Husband’s discharge in bankruptcy. See Delta Automatic Sys., Inc. v. 17 Bingham, 1999-NMCA-029, ¶ 31, 126 N.M. 717, 974 P.2d 1174 (explaining that 18 failure to respond, in a reply brief, to arguments raised in an answer brief constitutes 19 a concession of the matter). Moreover, Husband stated in a memorandum of law filed
14
1 in the district court that his “money debt was discharged but [Wife’s] lien on 2 [Husband’s] separate retirement funds survived the bankruptcy.” Thus, Husband has 3 conceded that Wife’s lien survived bankruptcy. In sum, we see no basis on which to 4 hold that the district court was prohibited by the bankruptcy proceedings from giving 5 effect to Wife’s lien. 6 CONCLUSION 7 {22} We affirm. 8 {23} IT IS SO ORDERED.
9 __________________________________ 10 JONATHAN B. SUTIN, Judge
11 WE CONCUR:
12 ___________________________________ 13 RODERICK T. KENNEDY, Chief Judge
14 ___________________________________ 15 LINDA M. VANZI, Judge