Russell v. Russell

740 P.2d 127, 106 N.M. 133
CourtNew Mexico Court of Appeals
DecidedJune 30, 1987
Docket9130
StatusPublished
Cited by6 cases

This text of 740 P.2d 127 (Russell v. Russell) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Russell, 740 P.2d 127, 106 N.M. 133 (N.M. Ct. App. 1987).

Opinion

OPINION

MINZNER, Judge.

Husband appeals a post divorce order crediting him with $714.58 against child support and alimony arrearages. Husband contends that the amount of the credit, which represents his community share of a settlement wife received for medical expenses, should be larger. The final decree of divorce entered by the court ordered that any recovery obtained by wife resulting from her claim for toxic shock syndrome would be her separate property, except that portion which was directly attributable to past medical expenses, loss of services to the community and loss of earnings, up to the time of the divorce, which amounts were deemed community property and should be divided equally between husband and wife. On appeal, both parties have assumed that the evidence necessary to support their respective claims is evidence as to the total amount of medical expenses incurred by the community. The appellate issue, however, is not what the total medical expenses were, but what portion of the wife’s settlement was directly attributable to medical expenses. We reverse the trial court and remand for further proceedings.

BACKGROUND.

Petitioner-appellant (husband) and respondent-appellee (wife) were married in 1965 and divorced in 1983. They had one child, who was 16 at the time of the divorce. When the divorce was granted wife had a potential personal injury claim against Proctor and Gamble for toxic shock syndrome. The findings of fact and conclusions of law entered at that time awarded alimony and child support, and included the following paragraph:

14. Respondent has a potential claim or cause of action against the manufacturers and/or distributors of Rely Tampons and/or others by reason of an illness she contracted in 1980 which required her hospitalization and other substantial medical care since that time. In the event Respondent brings an action or presents a claim against any responsible parties for her said injuries and illness, and in the event Respondent is successful in her claim or action, then that portion of Respondent’s claim or cause of action which is directly attributable to past medical expenses, loss of service to the community, and loss of earnings, if any, to the community, up to the time of the dissolution of the parties’ marriage, is the community property of the parties and should be divided equally between Petitioner and Respondent. The remaining portion of Respondent’s claim or cause of action, including damages for Respondent’s physical injury, pain and suffering, is Respondent’s separate property.

The final decree adopted the findings of fact and conclusions of law as the court’s ruling.

Subsequent to the divorce of the parties, wife filed a motion seeking to have husband held in contempt for failure to pay child support and alimony, and for judgment on the delinquencies. Husband stipulated that he was indebted to wife in the amount of $3,190 for past alimony and child support and in the amount of $2,000, plus interest, for an unauthorized loan obtained on a life insurance policy owned by wife. Husband agreed to make specific payments on these delinquencies. On February 28, 1985, wife filed a motion to enforce stipulation and judgment, asking for arrearages and attorney fees that had been awarded previously. The motion stated that wife’s suit against Proctor and Gamble was apparently close to settlement and acknowledged that husband was awarded an interest in that settlement. Wife asked that a receiver be appointed to receive any portion of the settlement due husband, to hold that amount, and to pay future alimony payments from it as they accrue.

After husband was ordered to pay arrearages and make regular alimony payments, a hearing was held with respect to paragraph 14. At the hearing, wife contended that the amount due husband under paragraph 14 was one-half of wife’s medical expenses which had not been paid by insurance. She presented a portion of the couple’s joint tax return for 1981, showing unreimbursed medical expenses of $1,421.16. Counsel for husband admitted that they had conducted no discovery. Thus, husband did not know the amount of the settlement wife had received or how much of the settlement was attributable to attorney fees, medical expenses, or loss of future earnings. On cross-examination, wife stated that all of her medical expenses in excess of the $1,421.16 had been paid by Blue Cross and Champús. The entitlement to Champús was due to husband’s military service, and the Blue Cross premiums were deducted from his Air Force paycheck.

Wife further testified that she had settled with Proctor and Gamble in April 1985, but that under the terms of the settlement the amount could not be disclosed. She did not know how the settlement figure was determined. She did admit that her total medical expenses were in the area of $80,-000 and that the settlement was in excess of that amount.

Following the hearing, husband requested a finding that he was entitled to one-half of $80,000. Findings entered by the trial judge include the following, which are challenged by husband:

14. That no loss of services resulted to the community and no loss of earnings.
15. That the intention of paragraph 14 was to reimburse the community, and in particular the Petitioner, for his one-half of any medical expenses the community inucrred [sic] as a result of the Respondents (sic) illness.
17. That the only evidence introduced as to medical expenses of the community are shown on Exhibit 1 to the December 16, 1985, hearing and the uncontradicted testimony of the Respondent, which shows the total sum of medical expenses to the community resulting from the illness and during that period to be $1429.15, one-half of which or $714.58, the Petitioner is entitled to recover.

We discuss (1) what portion of wife’s settlement, if any, represents community property; and (2) evidence of the amount of medical expenses.

WHAT PORTION OF THE SETTLEMENT REPRESENTS COMMUNITY PROPERTY?

The trial judge found that only an amount equal to medical expenses not paid by insurance was community property. No issue is raised on appeal concerning any right of the community with respect to loss of earnings or loss of services due to wife’s illness. Under finding 17, the amount due the community for medical expenses was $1,429.15. It follows from finding 15 that the trial court believed the decree intended to reimburse the community for only those medical expenses the community paid for in cash. That construction of the decree is not supported by the record on appeal.

Paragraph 14 states that any portion of the settlement “directly attributable to medical expenses” is community property and should be divided equally. The language in the decree is clear and therefore must be enforced as written. “Where the decree is clear and unambiguous, neither pleadings, findings, nor matters dehors the record may be used to change its meaning or even to construe it. It must stand and be enforced as it speaks." Parks v. Parks, 91 N.M. 369, 372, 574 P.2d 588, 591 (1978).

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801 P.2d 93 (New Mexico Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
740 P.2d 127, 106 N.M. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-russell-nmctapp-1987.