Michelson v. Michelson

551 P.2d 638, 89 N.M. 282
CourtNew Mexico Supreme Court
DecidedJune 22, 1976
Docket10144
StatusPublished
Cited by52 cases

This text of 551 P.2d 638 (Michelson v. Michelson) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michelson v. Michelson, 551 P.2d 638, 89 N.M. 282 (N.M. 1976).

Opinion

OPINION

MONTOYA, Justice.

This is the second appeal involving this case. In disposing of the first appeal, Michelson v. Michelson, 86 N.M. 107, 520 P.2d 263 (1974), we reversed and remanded for the entry of proper findings of fact and conclusions of law relative to the distribution of the community property between the parties, the award of alimony, the award of attorney’s fees, and the accrual of interest on the sums awarded.

Upon remand, the trial court entered amended findings and conclusions determining the exact amount of the community interest of the plaintiff (wife) in the sum of $148,172.30, then subtracting it from $200,000 to arrive at a figure of $51,827.70, which it decreed to be lump sum alimony. It also awarded $26,000 to the wife for her attorney’s fees in the trial court.

The defendant (husband) appeals from this second decision after remand, contending the trial court erred in failing to conclude that the husband’s interest in Sunbell Corporation (Sunbell) was separate property, and that the compensation paid to the husband by Sunbell was equal to the reasonable value of services of the husband. The husband also alleges error by the trial court in finding and concluding, without supporting evidence, that 7% of the increase of the value of the husband’s interest in Sunbell was attributable to the husband’s labor, industry and skill, that the wife was entitled to a community share therein, and that the amount of growth and total profits of Sunbell between certain dates was $3,246,092.

The husband further alleges that the trial court committed error as to its determination, without supporting evidence, that the wife had a community interest in the residence of the parties, in concluding that it had no jurisdiction to alter the $200,000 amount awarded at the first trial to the wife as her share of the community, or as lump sum alimony. The husband, in addition, alleges error in the conclusion that the lump sum alimony award should be the difference between the trial court’s determination of the value of the community property awarded to the wife and the sum of $200,000. The husband also alleges that the trial court abused its discretion in awarding lump sum alimony under the uncontradicted facts.

The wife takes issue with the husband’s contentions, claiming no error was committed by the trial court and cross-appeals, contending the court erred in failing to provide interest on the award from June 1, 1973. The wife also asks for review under Rule 3(b), Rules of Appellate Procedure [§ 21-12-3(b), N.M.S.A., 1953 (Repl.Vol. 4, 1975 Supp.)], in the event the court finds error in the trial court’s decision and seeks additional attorney’s fees for services in connection with the appeals.

We will first consider the effect of the decision and amended mandate of this court made after the first appeal. This court reversed the judgment and, in its opinion, clearly stated it could not adequately review the trial court’s decision because it did not allocate which portion of the $200,000 judgment awarded to the wife was community property and which portion was alimony. We did not intend to affirm the award of $200,000. We remanded the cause for the entry of appropriate findings and conclusions so that an adequate review could be made. Again, we reiterate what we stated in our previous opinion, involving the issues between the parties (86 N.M. at 111, 520 P.2d at 267):

“In Mora v. Martinez, 80 N.M. 88, 90, 451 P.2d 992, 994 (1969), we quoted with approval from Featherstone v. Barash, 345 F.2d 246, 249 (10th Cir. 1965), and said:

“ ‘ “ * * *. And when findings wholly fail to resolve in any meaningful way the basic issues of fact in dispute, they become clearly insufficient to permit the reviewing court to decide the case at all, except to remand it for proper findings by the trial court.” ’ ”

What were the basic issues of fact in dispute? Clearly they were the extent and division of the community property, the award of alimony and attorney’s fees. As to the award of alimony, we made it clear that an important factor in determining the amount of the award would be the amount of property distributed to the wife as her share of the community interest. We did not rule on the correctness or incorrectness of the total award of $200,000 which the trial court labeled as alimony, but which undoubtedly was intended by its decision to include the wife’s interest or share of community property.

Accordingly, we hold that the trial court committed error in ruling that it was bound to make the award in the same amount and apportion that figure into what it found to be community property, and what it found to be proper award of alimony. If we could not make a determination of the correctness of the trial court’s decision as to the amount of alimony, or the amount of community property, it follows that the $200,000 figure was not affirmed.

We now consider the other rulings as made by the trial court after remand. The parties agreed, both before the trial court and at oral argument on the second appeal, that the Rushfair property in Texas was no longer an issue in the case, and that the community under the laws of Texas was entitled to the rents, issues and profits from the separate property of the husband. It was agreed at oral argument that the community property interest was $42,977.73 received from rentals. Although it is true that the said rentals were never distributed, each of the parties herein would be entitled to an equal share of the rentals.

Another contention involved in this appeal is the decision of the trial court regarding the interest of the parties in Sunbell. The findings made by the trial court pursuant to remand, which are challenged by the husband, are as follows:

“8. As of January 1, 1973, the net value of the assets of the husband was approximately $496,030.00, plus the value of the parties’ interest in Sunbell Corporation of approximately $1,297,796.00, plus the value of interest in Rushfair Shopping Center of approximately $99,000.00, for a total net value of $1,892,826.00.

“10. Seven (7%) percent of the growth and profits of Sunbell Corporation is attributed to the labor, industry and skill of defendant. Seven (7%) percent of such growth and profits is $227,226.44.

“12. The total net increase in the value of this interest in Sunbell Corporation from date of defendant’s return in June, 1964, to September 30, 1972, was $1,181,296.00.”

The husband also contends that the trial court erred in failing to conclude on the basis of uncontradicted facts the following:

“1. That all the interest of the defendant in Sunbell Was separate property; and

“2. That the compensation paid defendant by Sunbell was at all times equal to the reasonable value of those services to the community.”

The husband further contends that the trial court erred in deciding without evidence to support it that:

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Bluebook (online)
551 P.2d 638, 89 N.M. 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michelson-v-michelson-nm-1976.