1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 LANA CAROL MUSE,
8 Petitioner-Appellee,
9 v. No. 30,348
10 JACK LEROY MUSE,
11 Respondent-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 13 Steven L. Bell, District Judge
14 Lana Carol Muse 15 Clovis, NM
16 Pro Se Appellee
17 Jack Leroy Muse 18 Clovis, NM
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 SUTIN, Judge.
22 Respondent-Appellant Jack L. Muse appeals the district court’s order
23 dismissing his request for an accounting and other relief in the divorce case brought 1 by Petitioner-Appellee Lana Muse. On June 2, 2010, this Court filed a notice of
2 proposed summary disposition proposing to affirm the district court. On June 21,
3 2010, Appellant filed a memorandum in opposition to summary affirmance, which we
4 have given due consideration. We affirm the district court.
5 Appellant asks whether the district court’s “Decision and Order Granting in Part
6 and Denying in Part Respondent’s Motion for an Accounting” (May 22, 2009
7 decision) fulfills the mandate of this Court on remand from our decision in Muse v.
8 Muse, 2009-NMCA-003, 145 N.M. 451, 200 P.3d 104 (filed 2008) (Muse I). [DS 11-
9 12]
10 “It is well settled that the duty of a lower court on remand is to comply with the
11 mandate of the appellate court, and to obey the directions therein without variation[.]”
12 Vinton Eppsco Inc. of Albuquerque v. Showe Homes, Inc., 97 N.M. 225, 226, 638 P.2d
13 1070, 1071 (1981) (emphasis omitted). Where there is a question as to whether a
14 district court followed this Court’s mandate on remand, “[i]t is within the power, and
15 it is the duty, of this [C]ourt to construe its own mandate in case there is any
16 ambiguity in the same.” State ex rel. Bujac v. Dist. Ct. of Second Judicial Dist., 28
17 N.M. 28, 32, 205 P. 716, 718 (1922). We review the question of whether a district
18 court has followed its jurisdiction and authority on remand de novo, as it involves a
19 question of law. See Garcia v. Garcia, 2010-NMCA-014, ¶ 27, 147 N.M. 652, 227
2 1 P.3d 621 (filed 2009), cert. granted, 2010-NMCERT-002, 147 N.M. 705, 228 P.3d
2 489.
3 In Muse I, this Court reversed in part and remanded the case for further
4 proceedings, with the following instructions.
5 We reverse the district court’s denial of Husband’s motion for an 6 accounting from Wife and remand for explicit determinations consistent 7 with this opinion. We also reverse and remand, consistent with this 8 opinion, for explicit determinations in regard to whether Husband was 9 improperly denied access to information and documents underlying the 10 special master reports. 11 12 2009-NMCA-003, ¶ 84. Earlier in the opinion in Muse I, we stated:
13 On remand, the district court is to address the issues of whether, 14 and if so, in what manner, Wife properly and adequately accounted to 15 Husband. The court is to also address whether, and if so to what extent, 16 Husband is entitled to accountings from Wife. If any aspect of this issue 17 involves whether the special master properly and adequately accounted 18 to Husband on Wife’s behalf or independently, the court should also 19 address this latter issue. Further, the district court is also to address 20 whether, and if so to what specific extent, Husband is entitled to receive 21 the information and documents that he has requested and that support the 22 information, conclusions, and recommendations of the special master. 23 To support the court’s ultimate holdings, the court should provide 24 explicit determinations or findings, with rationales.
25 Id. ¶ 54. We first point out that we did not mandate an accounting or mandate that
26 Appellant be provided with information and documents related to the special master’s
27 conclusions. Rather, we mandated that the district court make findings related to
3 1 whether Appellee had properly and adequately accounted to Appellant, and whether
2 Appellant was “entitled” to the accounting and information.
3 The district court’s May 22, 2009, decision following remand found specifically
4 that “[Appellant] was not provided an adequate accounting of [Appellee’s] liquidation
5 activity and he was not provided any documentation underlying the [s]pecial
6 [m]aster’s recommendations and conclusions.” [Supp. RP 1705 (¶ 9)] The district
7 court further ordered that Appellee provide Appellant with specified ledgers,
8 statements, and other papers regarding six business entities and that the special master
9 provide the information and documentation underlying his conclusions. [Supp. RP
10 1706 (¶¶ 16-18)] The district court also ordered an accounting, but did not order an
11 additional accounting requested by Appellant in a document admitted into evidence
12 at the hearing on Appellant’s motion. [Supp. RP 1706-07 (¶¶ 15, 19-21)] We
13 conclude that the district court followed our mandate with respect to whether Appellee
14 had provided adequate accounting and documentation.
15 On the question of whether Appellant was “entitled” to the accounting and
16 documentation, the district court was somewhat less explicit, but we conclude that its
17 rationale and ultimate action was sufficiently clear and within the authority specified
18 by our mandate. The district court first noted the practical issue of how the necessary
19 costs and fees associated with the accounting and provision of documents would be
4 1 paid, given the fact that such expenses had previously been paid from proceeds of
2 liquidation of the marital estate, but there were no further proceeds to be obtained.
3 [Supp. RP 1707 (¶¶ 22-27)] The court then noted that in March 2004, it had ordered
4 Appellant to pay Appellee $3,000 per month for the next four years, and $45,000 in
5 attorney fees. [Supp. RP 1706 (¶¶ 12-14)] As of May 2009, Appellant owed a total
6 of $99,000. [Supp. RP 1707 (¶ 25)] Appellant acknowledges that he had made no
7 payments whatsoever after May 2004, but asserts that this was due to inability rather
8 than refusal. [DS 6] The district court gave Appellant thirty days, i.e., until June 22,
9 2009, to deposit $99,000 into the court registry. [Supp. RP 1709] After we dismissed
10 Appellant’s premature appeal for lack of a final order and remanded, the district court
11 set a new deadline for payment of February 12, 2010. [Supp. RP 1722] After
12 Appellant did not meet this deadline, the district court dismissed with prejudice his
13 request for an accounting and information and documents underlying the special
14 master’s conclusions. [Supp. RP 1724]
15 As noted earlier, the May 22, 2009, decision was not as clear as we might have
16 preferred regarding the district court’s rationale for its actions. It is clear, however,
17 that part of the motivation was related to the practical question of how the accounting
18 costs and fees would be paid in the absence of any further proceeds from liquidation.
19 [Supp. RP 1688 (¶¶ 22-26)] Without unduly speculating as to the district court’s
Free access — add to your briefcase to read the full text and ask questions with AI
1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 LANA CAROL MUSE,
8 Petitioner-Appellee,
9 v. No. 30,348
10 JACK LEROY MUSE,
11 Respondent-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 13 Steven L. Bell, District Judge
14 Lana Carol Muse 15 Clovis, NM
16 Pro Se Appellee
17 Jack Leroy Muse 18 Clovis, NM
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 SUTIN, Judge.
22 Respondent-Appellant Jack L. Muse appeals the district court’s order
23 dismissing his request for an accounting and other relief in the divorce case brought 1 by Petitioner-Appellee Lana Muse. On June 2, 2010, this Court filed a notice of
2 proposed summary disposition proposing to affirm the district court. On June 21,
3 2010, Appellant filed a memorandum in opposition to summary affirmance, which we
4 have given due consideration. We affirm the district court.
5 Appellant asks whether the district court’s “Decision and Order Granting in Part
6 and Denying in Part Respondent’s Motion for an Accounting” (May 22, 2009
7 decision) fulfills the mandate of this Court on remand from our decision in Muse v.
8 Muse, 2009-NMCA-003, 145 N.M. 451, 200 P.3d 104 (filed 2008) (Muse I). [DS 11-
9 12]
10 “It is well settled that the duty of a lower court on remand is to comply with the
11 mandate of the appellate court, and to obey the directions therein without variation[.]”
12 Vinton Eppsco Inc. of Albuquerque v. Showe Homes, Inc., 97 N.M. 225, 226, 638 P.2d
13 1070, 1071 (1981) (emphasis omitted). Where there is a question as to whether a
14 district court followed this Court’s mandate on remand, “[i]t is within the power, and
15 it is the duty, of this [C]ourt to construe its own mandate in case there is any
16 ambiguity in the same.” State ex rel. Bujac v. Dist. Ct. of Second Judicial Dist., 28
17 N.M. 28, 32, 205 P. 716, 718 (1922). We review the question of whether a district
18 court has followed its jurisdiction and authority on remand de novo, as it involves a
19 question of law. See Garcia v. Garcia, 2010-NMCA-014, ¶ 27, 147 N.M. 652, 227
2 1 P.3d 621 (filed 2009), cert. granted, 2010-NMCERT-002, 147 N.M. 705, 228 P.3d
2 489.
3 In Muse I, this Court reversed in part and remanded the case for further
4 proceedings, with the following instructions.
5 We reverse the district court’s denial of Husband’s motion for an 6 accounting from Wife and remand for explicit determinations consistent 7 with this opinion. We also reverse and remand, consistent with this 8 opinion, for explicit determinations in regard to whether Husband was 9 improperly denied access to information and documents underlying the 10 special master reports. 11 12 2009-NMCA-003, ¶ 84. Earlier in the opinion in Muse I, we stated:
13 On remand, the district court is to address the issues of whether, 14 and if so, in what manner, Wife properly and adequately accounted to 15 Husband. The court is to also address whether, and if so to what extent, 16 Husband is entitled to accountings from Wife. If any aspect of this issue 17 involves whether the special master properly and adequately accounted 18 to Husband on Wife’s behalf or independently, the court should also 19 address this latter issue. Further, the district court is also to address 20 whether, and if so to what specific extent, Husband is entitled to receive 21 the information and documents that he has requested and that support the 22 information, conclusions, and recommendations of the special master. 23 To support the court’s ultimate holdings, the court should provide 24 explicit determinations or findings, with rationales.
25 Id. ¶ 54. We first point out that we did not mandate an accounting or mandate that
26 Appellant be provided with information and documents related to the special master’s
27 conclusions. Rather, we mandated that the district court make findings related to
3 1 whether Appellee had properly and adequately accounted to Appellant, and whether
2 Appellant was “entitled” to the accounting and information.
3 The district court’s May 22, 2009, decision following remand found specifically
4 that “[Appellant] was not provided an adequate accounting of [Appellee’s] liquidation
5 activity and he was not provided any documentation underlying the [s]pecial
6 [m]aster’s recommendations and conclusions.” [Supp. RP 1705 (¶ 9)] The district
7 court further ordered that Appellee provide Appellant with specified ledgers,
8 statements, and other papers regarding six business entities and that the special master
9 provide the information and documentation underlying his conclusions. [Supp. RP
10 1706 (¶¶ 16-18)] The district court also ordered an accounting, but did not order an
11 additional accounting requested by Appellant in a document admitted into evidence
12 at the hearing on Appellant’s motion. [Supp. RP 1706-07 (¶¶ 15, 19-21)] We
13 conclude that the district court followed our mandate with respect to whether Appellee
14 had provided adequate accounting and documentation.
15 On the question of whether Appellant was “entitled” to the accounting and
16 documentation, the district court was somewhat less explicit, but we conclude that its
17 rationale and ultimate action was sufficiently clear and within the authority specified
18 by our mandate. The district court first noted the practical issue of how the necessary
19 costs and fees associated with the accounting and provision of documents would be
4 1 paid, given the fact that such expenses had previously been paid from proceeds of
2 liquidation of the marital estate, but there were no further proceeds to be obtained.
3 [Supp. RP 1707 (¶¶ 22-27)] The court then noted that in March 2004, it had ordered
4 Appellant to pay Appellee $3,000 per month for the next four years, and $45,000 in
5 attorney fees. [Supp. RP 1706 (¶¶ 12-14)] As of May 2009, Appellant owed a total
6 of $99,000. [Supp. RP 1707 (¶ 25)] Appellant acknowledges that he had made no
7 payments whatsoever after May 2004, but asserts that this was due to inability rather
8 than refusal. [DS 6] The district court gave Appellant thirty days, i.e., until June 22,
9 2009, to deposit $99,000 into the court registry. [Supp. RP 1709] After we dismissed
10 Appellant’s premature appeal for lack of a final order and remanded, the district court
11 set a new deadline for payment of February 12, 2010. [Supp. RP 1722] After
12 Appellant did not meet this deadline, the district court dismissed with prejudice his
13 request for an accounting and information and documents underlying the special
14 master’s conclusions. [Supp. RP 1724]
15 As noted earlier, the May 22, 2009, decision was not as clear as we might have
16 preferred regarding the district court’s rationale for its actions. It is clear, however,
17 that part of the motivation was related to the practical question of how the accounting
18 costs and fees would be paid in the absence of any further proceeds from liquidation.
19 [Supp. RP 1688 (¶¶ 22-26)] Without unduly speculating as to the district court’s
5 1 reasoning or how the costs and fees would have ultimately been allocated, we observe
2 that the court found that because Appellee had not provided the accountings and
3 documentation the court had previously ordered, it would have been reasonable for
4 Appellee to bear the costs of providing them in response to Appellant’s later request.
5 [Supp. RP 1688 (¶ 25)] The court’s approach to the payment issue in effect required
6 Appellant to transfer funds he owed Appellee to the court to be used to pay costs and
7 fees Appellee might have been found to owe to others. Again without undue
8 speculation, we further observe that the district court might have concluded that
9 Appellant, having made no payments on the $99,000 accrued debt for over five years,
10 was in no position to complain that Appellee had not followed court orders to his
11 satisfaction.
12 We briefly address Appellant’s ten sub-issues, most of which are touched upon
13 in our earlier discussion. Sub-issues 1A and 1B concern whether Appellant has failed
14 and refused to pay the $99,000 of spousal support and attorney fees. [DS 11]
15 Appellant acknowledges that he has not paid anything since May 2004, and he does
16 not assert that these debts have otherwise been satisfied. [DS 6] We conclude that
17 Appellant’s assertion that the district court’s finding that he owes these amounts is
18 premature because proof of payment is controlled by Appellee is without merit.
6 1 Sub-issues 1C through 1E are addressed in our discussion earlier. [DS 11-12]
2 Sub-issue 1F is without merit because the district court’s May 22, 2009, decision
3 explains that Appellant owes Appellee $99,000, and that whatever the expenses of the
4 accounting and other disclosures turn out to be, these expenses would be taken out of
5 the $99,000 and the balance transferred to Appellee. [DS 12; Supp. RP 1706-07 (¶¶
6 13-14, 24-26)] Thus, there was no need for more specific correlation of the likely
7 expenses to the $99,000 ordered to be deposited in the court registry.
8 Sub-issues 1G and 1H are moot because Appellant did not deposit $99,000 as
9 ordered, and thus it is unknown whether specific documents were readily available at
10 little or no additional expense. [DS 12] With respect to Sub-issue 1I, we conclude
11 that the district court’s delineation of the documents and other information that were
12 to be provided to Appellant was adequate and within this Court’s mandate in Muse I.
13 Finally, as to Sub-issue 1J, we conclude that the district court did not abuse its
14 discretion by failing to address amounts paid to each party, as these amounts were
15 addressed in the court’s decision of March 18, 2004, concerning distribution of the
16 marital estate [RP 549-58], and any necessary adjustments could have been made in
17 connection with the accounting, had Appellant deposited the requisite $99,000 into
18 the court registry.
7 1 Appellant’s memorandum in opposition continues to assert that he did not have
2 the $99,000 that the district court ordered him to deposit. [MIO 4] He also discusses
3 his filing captioned “Response to Directive of Honorable Ralph Shamas on March 6,
4 2009,” a copy of which is attached to the memorandum. [RP 1632-36] This
5 attachment and its own attached Exhibit A are said to demonstrate that Appellee
6 received far more than the $338,000 that the district court had determined was her
7 share of the community estate. [See RP 1011 (¶ 3)] The “running total” shown on
8 Exhibit A differs significantly from the amounts indicated by the original,
9 supplemental, and final special master’s reports, which suggest that most of the
10 estate’s value went toward paying various debts, costs, and fees. [RP 826-32, 977-80,
11 1463-65] We decline to revisit the district court’s conclusions regarding any conflicts
12 in the evidence. “It is for the fact-finder, not the appellate court, to weigh the
13 evidence.” Kaveny v. MDA Enters., Inc., 2005-NMCA-118, ¶ 6, 138 N.M. 432, 120
14 P.3d 854.
15 For the reasons set forth in this opinion, we affirm the district court.
16 IT IS SO ORDERED.
17 __________________________________ 18 JONATHAN B. SUTIN, Judge 19 WE CONCUR:
20 ______________________________________
8 1 CYNTHIA A. FRY, Chief Judge
2 ______________________________________ 3 ROBERT E. ROBLES, Judge