Sedillo v. Sedillo

• Court: New Mexico Court of Appeals
• Decided: September 22, 2009
• Docket: 28,971
• Status: Unpublished

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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

2 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

3 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

4 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.

5 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

6 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

7 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

8 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

9 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-

10 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.

11 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

12 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

13 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