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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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 LINDA MARIE PARKER-SEDILLO, 8 Petitioner-Appellee, 9 v. NO. 28,971 10 TEDDY R. SEDILLO, 11 Respondent-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 Violet C. Otero, District Judge
14 New Mexico Legal Aid 15 Marcia J. Lieberman 16 Albuquerque, NM
17 for Appellee
18 Teddy R. Sedillo 19 Las Cruces, NM
20 Pro Se Appellant 21 MEMORANDUM OPINION 22 VIGIL, Judge.
1 Husband appeals from the final decree of dissolution of marriage. [RP 93] 2 The decree was entered upon Linda Marie Parker-Sedillo’s (Wife’s) verified 3 petition and the testimony and numerous exhibits Wife presented with her counsel 4 at the hearing, at which neither Husband nor his counsel at that time, Mr. Arrieta, 5 appeared. [Id.] Husband raises the following eight (8) issues on appeal, 6 contending that the district court erred as follows: (1) in not granting a continuance 7 or holding a hearing prior to the scheduled trial date which conflicted with a 8 criminal hearing; (2) in not granting a continuance in deference to a criminal jury 9 trial setting conflicting with its own setting; (3) in not making a sufficient showing 10 that the granting of the motion for continuance would have created a significant 11 inconvenience to the court or either party; (4) in failing to consider the factors 12 present and denying the motion to continue the trial and holding the hearing on the 13 motion on the date of trial; (5) in awarding Wife interim relief including child 14 support in the amount of $2,427.92, commencing September 1, 2007, without 15 considering that Husband was unemployed and fired from his position because of a 16 zero tolerance community policy regarding domestic violence; (6) in awarding 17 Wife community assets including the marital home without equitable division; (7) 18 by not equally dividing Wife and Husband’s retirement benefits at the time of the
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1 divorce and deviating from equal distribution; and (8) by entering findings that are 2 not supported by substantial evidence. [DS 7-9] 3 This Court’s calendar notice proposed summary affirmance. Husband has 4 filed a memorandum in opposition that we have duly considered. Unpersuaded, 5 however, we affirm. 6 DISCUSSION 7 Issues 1-4: The District Court’s Denial of the Motion for Continuance 8 We review the denial of a continuance for an abuse of discretion. Jaycox v. 9 Ekeson, 115 N.M. 635, 638, 857 P.2d 35, 38 (1993) (citing Albuquerque Nat’l 10 Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 104, 654 P.2d 548, 557 11 (1982). An abuse of discretion will be found if the decision is contrary to logic and 12 reason. Kueffer v. Kueffer, 110 N.M. 10, 13, 791 P.2d 461, 464 (1990). This Court 13 finds it helpful to set forth the procedural history of this case in order to place the 14 district court’s denial of Husband’s motion to continue the August 2008 trial date 15 in context. Wife filed the verified petition for dissolution of marriage on April 16 18, 2007. [RP 1] On June 18, 2007, the district court filed an order appointing a 17 hearing officer and a notice of hearing for an interim order dividing income and 18 expenses and an order for production. [RP 13] The hearing was set for July 3, 19 2007. [RP 15] On June 25, 2007, Husband filed a motion for continuance of the
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1 interim hearing, Wife consented to the motion [RP 17], and the district court 2 granted it. [RP 21] The hearing on interim relief was then set for September 11, 3 2007. [RP 23] 4 Wife filed an emergency motion for supervised visitation on July 13, 2007, 5 asserting that Husband had violated the order of protection entered against him. 6 [RP 28] Wife also filed a request for production of documents to Husband, 7 requesting Husband’s federal and state tax returns, W-2 forms, wage and payroll 8 statements, and other insurance and employment documentation. [RP 30-31] A 9 hearing on Wife’s emergency motion was set for August 7, 2007. [RP 34] 10 Thereafter, Wife changed counsel and moved to continue the hearing on the 11 emergency motion pending a report from the children’s therapist. [RP 41] 12 Husband consented to the motion and the district court granted it, moving the 13 hearing to September 12, 2007. [RP 43] 14 On September 11, 2007, pursuant to the scheduled hearing on Wife’s motion 15 for interim relief, the hearing officer filed a report. [RP 46] The report indicates 16 that the hearing was held, Wife appeared, and submitted a proposed interim 17 monthly income and expense statement. [Id.] However, neither Husband nor his 18 counsel appeared at the hearing despite having received notice of it. [Id., ¶ 4] 19 The hearing officer adopted Wife’s proposed interim division upon Husband’s
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1 default [RP 47], concluding that “in order to equalize income [Husband] shall pay 2 [Wife] $2,427.92 per month commencing September, 2007 until further order of 3 the court.” [Id.] The report attached Wife’s detailed interim monthly income and 4 expense statement. [RP 48] The hearing officer filed a notice of filing of the 5 report, served it on counsel for both parties, and indicated that the parties had ten 6 days to serve objections and a request and notice of hearing. [RP 44] 7 Wife filed a verified motion for an order to show cause on October 18, 2007. 8 [RP 54] The motion indicates that Husband did not file objections to the hearing 9 officer report on interim support and had not paid the interim support ordered to be 10 paid. [RP 54] The district court filed an order to appear and show cause on October 11 23, 2007, setting a hearing for November 5, 2007. [RP 58] The record proper 12 does not indicate the outcome of the show cause hearing. 13 Wife filed a request for pre-trial hearing on February 7, 2008, and the 14 hearing was set for March 3, 2008. [RP 62, 64] At that time, Husband was 15 appearing pro se, although no notice of withdrawal of his attorney had been filed. 16 [RP 65, 67, 69] The district court filed the pretrial order on March 4, 2008, and 17 trial was set for June 12, 2008. [RP 71] The district court judge stated in the 18 pretrial order: “No [c]ontinuances will be granted absent extraordinary 19 circumstances.” [RP 71] The pretrial order was served on Husband’s counsel.
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1 [RP 72] Husband’s counsel served discovery on Wife and responded to Wife’s 2 discovery in March 2008. [RP 73, 74] 3 On May 1, 2008, the district court filed an amended notice of trial moving 4 the trial date from June 12 to June 26, 2008. [RP 75] On May 23, 2008, Husband 5 filed a motion to continue the trial stating that his counsel would be in a jury trial 6 on June 26, 2008, Wife consented to the motion, and the district court granted the 7 motion, stating that the district court would reset the hearing “upon request for 8 hearing by the parties.” [RP 77] Wife filed a request for a trial date on June 19, 9 2008. [RP 79] On June 23, 2008, the district court set trial once again for August 10 20, 2008. [RP 81] On July 1, 2008, Husband filed a motion to continue, stating 11 that counsel for Husband would be in a jury trial on that date in a case where the 12 six-month rule would run on August 28, 2008, and stating that Wife opposes the 13 motion. [RP 83] Wife filed her list of exhibits on August 8, 2008, and a schedule 14 of community property and liabilities on August 11, 2008. [RP 85, 87] The record 15 proper contains no ruling on the motion for continuance prior to trial. Neither 16 Husband nor his attorney appeared on August 20, 2008, at the trial. [RP 93, 1st 17 paragraph] On September 2, 2008, Wife filed a request for a presentment hearing 18 for the final decree of dissolution of marriage. [RP 91] The final decree was filed
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1 on September 5, 2008. [RP 93] Husband filed a notice of appeal on October 2, 2 2008. [RP 102] 3 The procedural history of this case indicates that Husband and his attorney 4 engaged in a pattern of delay and obstruction, including several motions for 5 continuances, nonappearances, and defaults at the interim hearing and at the trial, 6 as well as failure to comply with the order regarding interim support, which 7 necessitated a motion for order to show cause, a show cause order, and hearing. 8 When the pretrial order was filed, the district court judge specifically stated that 9 exceptional circumstances would be required for the trial date to be continued. 10 Thereafter, the district court itself reset the trial date, and granted Husband’s 11 unopposed motion to continue the reset trial date, after which a third trial date was 12 set. When Husband’s counsel again moved to continue the trial date, however, 13 Wife did not consent, and the trial court did not rule on the motion prior to trial. 14 Despite the fact that the August 20, 2008 trial date had not been continued or 15 vacated, however, Husband and Husband’s counsel did not appear to argue the 16 motion or to proceed to trial. 17 When a motion for continuance has been made and not ruled on prior to 18 trial, counsel and his client cannot simply fail to appear. See, e.g., In re Neal, 19 2003-NMSC-032, ¶¶ 19-21, 134 N.M. 594, 81 P.3d 47. In In re Neal, our Supreme
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1 Court expressed its disapproval of this conduct. As in In re Neal, Husband and his 2 attorney expected the Valencia district court to “revise its schedule to fit his 3 convenience.” Id. ¶ 20. “[I]f all lawyers behaved like [Husband and his attorney], 4 the principles of judicial economies and administration of justice could be 5 compromised.” Id. 6 In the memorandum, Husband continues to claim that his attorney’s criminal 7 trial should have taken precedence over this trial, and that his attorney could show 8 up at that trial and disregard this one. [MIO 3] Husband also argues that In re 9 Neal is distinguishable from this case, because the attorney in that case failed to 10 appear “without just cause.” [Id.] Husband contends that this case is different, 11 because his attorney tried to get a hearing on the motion to continue prior to the 12 trial date, but did not succeed. [Id.] In this case, the motion hearing was set for the 13 same date as the trial, and, therefore, according to Husband, when Husband and his 14 attorney did not appear, they were inappropriately defaulted. [Id.] We are not 15 persuaded. 16 The district court was unwilling to simply grant yet another continuance 17 when the opposing party disagreed and Husband and his attorney had engaged in a 18 pattern of delay and nonappearances. Thus, we conclude the district court did not 19 abuse its discretion by refusing to grant a continuance prior to trial despite
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1 Husband’s attorney’s efforts to persuade it to do otherwise. Having obtained no 2 ruling on the motion to continue prior to trial, Husband and his attorney’s failure to 3 appear was unacceptable and reflected a disregard for “all participants in the legal 4 process”:
5 It is incumbent on attorneys to resolve scheduling conflicts in advance 6 in order to minimize disruption of the legal system. This is not to 7 suggest that last-minute conflicts will not sometimes arise, or that 8 last-minute reasons for needing a continuance will not occur. The 9 need for such accommodation should be the exception, however, not a 10 strategy employed by counsel. Failing to appear for trial because of a 11 scheduling conflict not addressed in advance is sanctionable. Not 12 only does such conduct interfere with the court’s schedule, but also it 13 is an unreasonable imposition on all participants in the legal process.
14 Id. “Counsel for litigants, no matter how ‘important’ their cases are, cannot 15 themselves decide when they wish to appear.” Id. ¶ 21 (internal quotation marks 16 and citation omitted). 17 With regard to conflicts in court scheduling, our Supreme Court has stated 18 long ago that counsel may occasionally need to arrange for another attorney to 19 assist when court conflicts arise, rather than simply not to appear in one of the 20 cases. See, e.g., Territory v. Lobato, 17 N.M. 666, 680-81, 134 P. 222, 226 (1913). 21 If Husband’s attorney considered his appearance in the criminal case was more 22 important, given that the district court in this case had not granted a continuance 23 prior to trial, it was incumbent that he obtain substitute counsel to appear at the
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1 trial in this case. “The absence of counsel for the defendant in an adjoining 2 county, attending court, is no ground for continuance. If it were, where terms of 3 court conflict, continuances would be of frequent occurrence.” Id. (internal 4 quotation marks and citation omitted). 5 Under the circumstances of this case, we affirm the district court’s decision 6 not to grant yet another continuance and to proceed to consider the documents 7 submitted and the testimony presented without the presence of Husband and his 8 attorney. 9 Issues 5-8: The Dissolution Decree 10 “The trial court is to divide community property equally” and gives the court 11 broad discretion in doing so. Trego v. Scott, 1998-NMCA-080, ¶ 22, 125 N.M. 12 323, 961 P.2d 168. “The division of property, however, need not be computed 13 with mathematical exactness.” Irwin v. Irwin, 121 N.M. 266, 269, 910 P.2d 342, 14 345 (Ct. App. 1995); see also Ruggles v. Ruggles, 114 N.M. 63, 67, 834 P.2d 940, 15 944 (leaving method of distribution and implementation of payment of retirement 16 benefits at dissolution of marriage within the sound discretion of the district court), 17 rev’d on other grounds, 116 N.M. 52, 860 P.2d 182 (1993). 18 In the memorandum, Husband discusses case law that allows a judgment to 19 be set aside, reopened, or voided under circumstances enumerated in Rule 1-
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1 060(B) NMRA. [MIO 4-7] Husband has never moved for Rule 1-060(B) relief in 2 the district court, and, on appeal to this Court, other than discussing the principles 3 of the law in this area, Husband presents no facts or evidence whatsoever to 4 suggest that any of the provisions of Rule 1-060(B) apply to this case. [Id.] See, 5 e.g., Sunwest Bank v. Roderiguez, 108 N.M. 211, 213, 770 P.2d 533, 535 (1989) 6 (stating that, a party seeking relief from a default judgment must show the 7 existence of grounds for relief under Rule 1-060(B), and a meritorious defense); 8 see also Magnolia Mountain Ltd., P’ship v. Ski Rio Partners, Ltd., 9 2006-NMCA-027, ¶ 44, 139 N.M. 288, 131 P.3d 675 (“Of course, such a 10 defendant would still be required to show grounds to set aside the judgment under 11 Rule 1-060(B).”). 12 Moreover, as we discussed in the calendar notice, on the merits, we have not 13 been presented with grounds for setting aside or voiding the dissolution decree. At 14 the trial, Wife presented extensive exhibits with regard to both parties’ financial 15 situations including a detailed schedule of the parties’ community assets and 16 liabilities. [RP 85, 87] The final decree indicates that the district court equally, 17 fairly, and equitably, if not mathematically, divided the parties’ responsibilities for 18 the children and their community assets and liabilities.
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1 Husband first argues that the district court erred in setting the interim 2 support amount. We note, however, that as discussed above , despite receiving 3 notice of the hearing on interim support, despite receiving notice that the report 4 was filed, and despite receiving notice that Husband had ten days to object to it, 5 Husband and his attorney did not appear at the hearing, Husband failed to file any 6 objections to the order, and then he refused to comply with it. Under the 7 circumstances, we consider that Husband waived and abandoned any objection he 8 may have had to the interim support amount. 9 Husband next objects to the Wife being awarded the family residence. We 10 affirm the district court’s decision. The parties have minor children with interests 11 in consistency and stability. [RP 93-94] The parties received joint custody of the 12 children with Wife having primary physical custody. [RP 94] Husband has greater 13 relative earning power, particularly in light of Wife’s disabling illness. [RP 95, ¶¶ 14 16-18] Under the circumstances, we cannot say that the district court abused its 15 discretion in awarding the marital residence to Wife. 16 Husband also argues that the district court did not equally divide the parties’ 17 retirement accounts. The district court immediately awarded Wife her community 18 interest in Husband’s retirement accounts, up to the last full month (March 2007) 19 prior to Wife’s filing of the petition for divorce (April 2007), with all remaining
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1 and future amounts awarded to Husband. [RP 97] We note any inequality claimed 2 is diffused by the fact that Wife undertook to fully pay, among other liabilities, the 3 approximately $10,000 cost for one of the children’s orthodontia and 4 reconstructive work. [RP 95-96, ¶¶ 19-20] Under the circumstances, Husband 5 has not persuaded us that the district court did not comport with applicable case 6 law regarding equitable division of the parties’ retirement accounts and the other 7 community assets and liabilities. See, e.g., Ruggles v. Ruggles, 116 N.M. 52, 860 8 P.2d 182 (1993). Because we cannot say the district court abused its discretion, we 9 affirm the district court on this issue. 10 Finally, Husband argues that the final decree is not supported by substantial 11 evidence presented at trial. As we have discussed, however, Husband and his 12 attorney did not appear at trial in a situation where the district court had not 13 granted a continuance. The decree was entered upon the extensive exhibits 14 presented by Wife, which included both parties’ financial documentation and a 15 detailed schedule of the parties’ community assets and liabilities. Husband and his 16 attorney were not at trial to present countervailing evidence. After the trial, they 17 did not move in district court to set aside the decree pursuant the rules of civil 18 procedure applicable to default or available to address mistakes, fraud and other 19 extraordinary situations. Finally, Husband does not present any evidence
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1 whatsoever in his memorandum to indicate that there are any facts that would 2 justify any such remedy. We remain persuaded that the final decree indicates that 3 the district court equally, fairly, and equitably, if not mathematically, divided the 4 parties’ responsibilities for the children and their community assets and liabilities. 5 CONCLUSION 6 We affirm the final decree of dissolution. 7 IT IS SO ORDERED.
8 9 MICHAEL E. VIGIL, Judge
10 WE CONCUR:
11 12 CYNTHIA A. FRY, Chief Judge
13 14 MICHAEL D. BUSTAMANTE, Judge