Salazar v. Salazar

• Court: New Mexico Court of Appeals
• Decided: May 23, 2012
• Docket: 30,079
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 HOPE LIBERTY SALAZAR,

3 Petitioner-Appellee,

4 v. NO. 30,079

5 ANTHONY JOHN SALAZAR,

6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Angela J. Jewell, District Judge

9 Johnson Family Law, P.C. 10 Barbara V. Johnson 11 Albuquerque, NM

12 for Appellee

13 Hunter Law Firm 14 Colin Hunter 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge.

19 I. INTRODUCTION 1 Husband appeals from an order of the district court determining Wife’s interest

2 in Husband’s PERA retirement account. We reverse and remand for further

3 proceedings.

4 II. BACKGROUND

5 The judgment and final decree of dissolution of marriage and custody was filed

6 on October 24, 2008, with the district court reserving jurisdiction to determine Wife’s

7 interest in Husband’s PERA retirement account at a status hearing in May 2009.

8 Following the status conference, the district court entered its order finding that Wife’s

9 interest in Husband’s PERA benefits “needs to be valued and reduced to present cash

10 value,” and the district court appointed Dr. John Myers as its expert pursuant to Rule

11 11-706 NMRA to assist the court on this issue. After Dr. Myers submitted his report,

12 a hearing was held.

13 At the hearing, Husband presented testimony from a PERA representative that

14 PERA does not conduct present day valuations of retirement benefits, and the earliest

15 PERA can prepare an estimation of an employee’s benefits is three years before the

16 employee’s eligibility for retirement. She also testified that PERA requires an order

17 from the court identifying the community interest and an identification of the division

18 of that interest between the parties in order to divide retirement benefits between the

19 parties.

2 1 Husband testified that he was forty-two years old, had completed fourteen

2 years of service, and that he believed he would be eligible to retire in September 2020.

3 The PERA representative testified that a person is eligible for retirement under the

4 state general plan 3 when he has completed twenty-five years of service with the state

5 at any age, or on a sliding scale of service of years upon reaching the age of sixty.

6 Following the hearing, the district court filed its findings of fact and

7 conclusions of law (order). In pertinent part, the district court made the following

8 findings of fact:

9 5. In the case of Ruggles v. Ruggles, 116 N.M. 52, 860 P.2d 182 10 [(1993)], the Supreme Court stated: We hold that the preferred method 11 of dealing with these community assets is to treat them as all other 12 community assets are treated on dissolution—namely, to value, divide, 13 and distribute them (or other assets of equivalent value) to the divorcing 14 spouses. We realize that in some cases, given the innumerable variations 15 in pension plans and the infinite variety in the circumstances of 16 individual divorcing couples, it will not be possible or practicable to 17 achieve this preferred method of distribution and that other methods, 18 including the reserved jurisdiction [or] pay as it comes in method, will 19 have to be utilized.

20 ....

21 7. Dr. Myers found that the present value of the community interest 22 in [Husband’s] PERA benefits as of the end of the community, is about 23 $200,000.00, making each party’s interest at $100,000.00.

24 8. Ruggles, quoting from Copeland v. Copeland, 91 N.M. 409, 575 25 P.2d 99 [(1978)], states: It would appear that a flexible approach to this 26 problem is needed. The trial court should make a determination of the 27 present value of the unmatured pension benefits with a division of assets 28 which includes this amount, or divide the pension on a pay as it comes

3 1 in system. This way, if the community has sufficient assets to cover the 2 value of the pension, an immediate division would make a final 3 disposition; but, if the pension is the only valuable asset of the 4 community and the employee spouse could not afford to deliver either 5 goods or property worth the other spouse’s interest, then the trial court 6 may award the non-employee spouse his/her portion as the benefits are 7 paid.

8 ....

9 17. The community has no assets to pay [Wife] her present cash value 10 of [Husband’s] PERA benefits.

11 18. When the youngest child is school age, the work related day care 12 expense will terminate or be substantially reduced, and [Husband] will 13 have the means to pay to [Wife] her then interest in his PERA benefits, 14 whether he has elected to retire or not.

15 19. Once [Husband] retires, a QDRO can be entered to pay directly to 16 [Wife], her then community interest.

17 (Internal quotation marks omitted.) The district court then entered the following

18 pertinent conclusions of law:

19 2. The [c]ourt finds that based on the individual circumstances of this 20 divorcing couple, it is not possible or practicable to exercise the 21 preferred method of distribution, that being to order [Husband] to pay at 22 the time of divorce, the present cash value of [Wife’s half] interest in his 23 PERA benefits.

24 3. The [c]ourt chooses to exercise the reserved jurisdiction method.

25 4. The [c]ourt hereby reserves jurisdiction over the issue of 26 distribution of [Wife’s] interest in [Husband’s] PERA benefits, until [the 27 parties’ youngest child], . . . reaches the age of six (6), that being [in] 28 November . . . 2011.

4 1 5. If [Husband] does not elect to retire by November . . . 2011, then 2 in that event, he shall commence to pay directly to [Wife], her then 3 valued interest in his PERA retirement account. This shall be effective 4 November 15, 2011, and each and every month thereafter[.]

5 6. The PERA Administration Agency shall be contacted in August 6 of 2011, to determine [Wife’s] community interest in [Husband’s] 7 PERA benefits. Contact shall be made by [Husband].

8 7. When [Husband] elects to retire, then in that event, counsel shall 9 execute a QDRO, to be submitted to the PERA Plan Account 10 Administrator.

11 III. ANALYSIS

12 Husband appeals from the district court order, arguing that the district court

13 erred in (1) making a determination that Wife’s share of the his retirement benefits

14 should be distributed before it is paid to Husband by PERA, and (2) in ordering PERA

15 to perform a present value calculation of his benefits before he is eligible to retire.

16 Wife also requests on appeal that we remand for the entry of an “Order Dividing

17 PERA Retirement Benefits.”

18 While the district court has wide discretion under Ruggles in crafting a remedy

19 for the distribution of retirement benefits when the marital assets are insufficient to

20 support immediate division of the value of the pension, the district court’s remedy

21 must be clearly expressed in its findings of fact, conclusions of law, and order. See

22 Ruggles, 116 N.M. at 61-62, 860 P.2d at 191-92 (“[T]he trial court should have

23 discretion in implementing [the lump sum] method, alone or in combination with other

5 1 methods, including in an appropriate case the reserved jurisdiction method, in

2 distributing the nonemployee spouse’s interest upon dissolution.”); Rule 1-052

3 NMRA (requiring the district court to make findings of fact and conclusions of law

4 when requested by a party in a non-jury trial).

5 The parties disagree as to the meaning of the district court order regarding the

6 requirements of Husband paying retirement benefits to Wife. Moreover, the district

7 court’s oral statements from the bench appear to be different from the remedy directed

8 in its written order. See San Pedro Neighborhood Ass’n v. Bd. of Cnty. Comm’rs of

9 Santa Fe Cnty., 2009-NMCA-045, ¶ 8, 146 N.M. 106, 206 P.3d 1011 (“We do not

10 consider the oral ruling as a final order, but simply as instructive in determining the

11 court’s intent where an ambiguity exists in the court’s decision.” (internal quotation

12 marks and citation omitted)). We conclude that the order contains material

13 contradictions, inconsistencies, and vague and unworkable provisions that preclude

14 effective review of the issues.

15 The unchallenged findings of fact establish that the lump sum distribution as

16 advised under Ruggles is not a feasible method of distribution in this case. See

17 Ruggles, 116 N.M. at 61-62, 860 P.2d at 191-92; Stueber v. Pickard, 112 N.M. 489,

18 491, 816 P.2d 1111, 1113 (1991) (stating that unchallenged findings of fact are

19 binding on appeal). Thus, the district court was entitled in its discretion to fashion

20 another method of payment of Wife’s share in the retirement benefits. See Ruggles,

6 1 116 N.M. at 61-62, 860 P.2d at 191-92. This being said, we are at a loss to understand

2 exactly what the district court ordered and why. The evidence is uncontradicted that

3 Husband cannot retire by November 2011; however, the order speaks in terms of what

4 may occur if Husband “elects” not to retire by November 2011. Moreover, what is

5 supposed to happen in November 2011, if Husband “elects” not to retire is at best

6 ambiguous. While it appears that the order contemplates monthly payments, it fails

7 to specify the amount of the monthly payment, whether the monthly payments remain

8 the same, or how long the payments are to continue. Moreover, and critical to our

9 conclusion, the order makes no determination of the value of Husband’s retirement,

10 reduced to present value as of the date of the divorce, or what Wife’s actual interest

11 in the retirement account is.

12 Thus, the district court’s failure to clearly state its findings and conclusions

13 precludes our ability to engage in meaningful review of this issue. See Foutz v. Foutz,

14 110 N.M. 642, 645, 798 P.2d 592, 595 (Ct. App. 1990). We therefore remand for the

15 district court to enter findings of fact, conclusions of law, and a final order regarding

16 the court’s decision pertaining to the method of distribution of benefits that clearly

17 and effectively determines the issue for review in any further appeal. See State ex rel.

18 Human Servs. Dep’t v. Coleman, 104 N.M. 500, 505, 723 P.2d 971, 976 (Ct. App.

19 1986) (“Where doubt or ambiguity exists as to whether the [district] court considered

20 relevant evidence, or where other findings are required, the ends of justice require that

7 1 the cause be remanded to the district court for the entry of additional findings and

2 conclusions of law.”), abrogated on other grounds by State v. Alberico, 116 N.M. 156,

3 861 P.2d 192 (1993).

4 In addition, the district court order requires Husband to contact PERA in

5 August of 2011 “to determine [Wife’s] community interest in [Husband’s] PERA

6 benefits.” Husband contends this was error because the undisputed evidence before

7 the district court is that PERA will not perform present day valuations. Alternatively,

8 Wife asserts that this provision of the order should be ignored as harmless error

9 because, she contends, the district court adopted Dr. Myers’ finding that the present

10 value of Wife’s interest is $100,000, making this directive by the district court merely

11 “superfluous.” We conclude that the district court ordered PERA to value the benefits

12 and that it was error to do so.

13 Although the order takes note of Dr. Myers’ calculation of the present value,

14 it does not adopt that calculation as the court’s own finding of the present value of the

15 pension. Instead, the order directs Husband to contact PERA in August 2011 to

16 determine Wife’s interest in the retirement benefits. No logical reading of the order

17 leads to a conclusion other than that the district court intends to rely on PERA’s

18 valuation to establish Wife’s interest in Husband’s retirement benefits. However, the

19 undisputed testimony at the hearing was that PERA does not perform present value

20 calculations on retirement benefits. Thus, the district court erred in ordering Husband

8 1 to obtain a present value calculation of the value of Wife’s share of his retirement

2 benefits from PERA.

3 Upon remand, the district court must adopt a clear and definite method of

4 valuation of the benefits accrued during the marriage. See Gilmore v. Gilmore, 2010-

5 NMCA-013, ¶ 53, 147 N.M. 625, 227 P.3d 115 (“[U]nless and until our Supreme

6 Court or Legislature decides that district courts are to default to a particular rule,

7 formula, or methodology [for calculating division of retirement benefits between

8 divorcing spouses], it is essential for effective appellate review on the issues that the

9 court explain why it has chosen the formula or method of calculation that it uses.”).

10 The district court must first attempt to assign a present day valuation of the benefits

11 as of the date of the divorce. See Ruggles, 116 N.M. at 67-68, 860 P.2d at 197-98;

12 Mattox v. Mattox, 105 N.M. 479, 481, 734 P.2d 259, 261 (Ct. App. 1987) (“To value

13 unmatured pension benefits, the trial court must determine their present value.”);

14 Copeland, 91 N.M. at 413-14, 575 P.2d at 103-04 (“The cases are in agreement that

15 at the time of the divorce the court must place a value on the pension rights and

16 include it in the entire assets, then make a distribution of the assets equitably. . . . The

17 trial court should make a determination of the present value of the unmatured pension

18 benefits with a division of assets which includes this amount, or divide the pension on

19 a ‘pay as it comes in’ system.”).

9 1 If the district court concludes that insufficient evidence exists to assign a

2 present value under these circumstances, it must make a clear and supported finding

3 for its determination, and in its discretion determine and clearly support its decision

4 for the appropriate course of action for valuation and distribution under a “reserved

5 jurisdiction” method. Palmer v. Palmer, 2006-NMCA-112, ¶ 15, 140 N.M. 383, 142

6 P.3d 971 (stating that under the “reserved jurisdiction” method, “only the formula for

7 division is determined at the time of divorce” (internal quotation marks and citations

8 omitted)); Ruggles, 116 N.M. at 67, 860 P.2d at 197 (“One such occasion [where

9 deferred distribution should be employed] will arise when the court has no satisfactory

10 evidence upon which to make a finding of present value.”); 2.80.1600.10(A)(3)

11 NMAC (12/28/2001) (providing that the court order must “divide[] the community

12 interest in PERA retirement pensions or contributions . . . [including] the percentage

13 or dollar amount of each party’s interest in the gross pension as calculated at the time

14 of retirement”).

15 In making the foregoing determinations, the district court is entitled in its

16 discretion to rely upon evidence previously presented of the present day value of the

17 pension or, within its authority, request additional evidence to aid in its conclusion.

18 See Gilmore, 2010-NMCA-013, ¶ 52 (“We will not in this case attempt to provide

19 definite guidelines by which district courts in their mandated purpose to achieve an

20 equitable result might determine which formula or method of calculation to use in

10 1 dividing benefits when the parties have not agreed to a particular formula or

2 methodology.”).

3 Finally, we note that the district court ordered that the parties execute

4 a QDRO when Husband elects to retire. However, a QDRO is not

5 applicable to retirement benefits distributed by PERA. See Attorney

6 Instructions, Order Dividing PERA Retirement Benefits, available at

7 http://www.pera.state.nm.us/forms/AttyInstOrderDivPERABen.pdf. Rather, the

8 appropriate order to be entered pursuant to a division of PERA benefits in a divorce

9 proceeding is an “Order Dividing PERA Retirement Benefits” as authorized by

10 NMSA 1978, Sections 10-11-116 (1991) (amended 2010 and 2011), -130 (2005)

11 (amended 2011), -136 (1995) of the New Mexico Public Employees Retirement Act

12 and PERA Regulations 2.80.1600.1 to .50 NMAC (10/15/97) (amended 12/28/2001).

13 See 2.80.1600.10 NMAC (providing requirements for orders dividing retirement

14 benefits).

15 IV. CONCLUSION

16 The order of the district court is reversed and the case is remanded to the district

17 court for further proceedings consistent with this Opinion.

18 IT IS SO ORDERED.

19 ______________________________ 20 MICHAEL E. VIGIL, Judge

11 1 WE CONCUR:

2 _________________________________ 3 CELIA FOY CASTILLO, Chief Judge

4 _________________________________ 5 JONATHAN B. SUTIN, Judge