Wolfe v. Fernandez

• Court: New Mexico Court of Appeals
• Decided: October 1, 2015
• Docket: 34,425
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SONDRA C. WOLFE,

3 Petitioner-Appellee,

4 v. NO. 34,425

5 DOUGLAS A. FERNANDEZ,

6 Respondent-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Elizabeth E. Whitefield, District Judge

9 Joyce M. Genry 10 Albuquerque, NM

11 for Appellee

12 Medrano, Hess & Struck, P.C. 13 Bryan J. Hess 14 Albuquerque, NM

15 for Appellant

16 MEMORANDUM OPINION

17 ZAMORA, Judge.

18 {1} Respondent has appealed from an award of attorney fees to Petitioner. We

19 previously issued a notice of proposed summary disposition in which we proposed to 1 affirm. Respondent has filed a memorandum in opposition, which we have duly

2 considered. Because we remain unpersuaded, we affirm.

3 {2} We previously set forth the pertinent background information in the notice of

4 proposed summary disposition. We will avoid unnecessary reiteration here. Instead,

5 we will focus on the substantive material advanced in the memorandum in opposition.

6 {3} Respondent continues to argue that the award of attorney fees to Petitioner was

7 an abuse of discretion. [MIO 2-4] With respect to the relevant factors, Respondent

8 first takes issue with the apparent disparity of incomes, suggesting that Petitioner was

9 voluntarily unemployed. [MIO 2] However, the record reflects that Petitioner

10 presented evidence that her health and outdated computer programming skills severely

11 limit her ability to obtain employment. [RP 270-72] In light of these considerations,

12 we reject Respondent’s suggestion that income should have been imputed to

13 Petitioner. See Boutz v. Donaldson, 1999-NMCA-131, ¶ 5, 128 N.M. 232, 991 P.2d

14 517 (“The imputation of income depends on the evidence and the sound exercise of

15 judicial discretion.”); Jurado v. Jurado, 1995-NMCA-014, ¶ 8, 119 N.M. 522, 892

16 P.2d 969 (“[W]e view the evidence in the light most favorable to the findings and

17 judgment entered below . . . [t]his Court indulges in all reasonable inferences that can

18 be drawn from the evidence in support of the judgment.”).

2 1 {4} Second, Respondent continues to argue that Petitioner’s conduct in the course

2 of settlement was unreasonable. [MIO 3] However, as we previously observed,

3 Respondent’s only offer of settlement was less than half of Petitioner’s ultimate

4 entitlement; Petitioner’s offers much more closely approximated that value. To the

5 extent that Respondent takes issue with Petitioner’s demands for a lump sum, [MIO

6 3] it is not clear that this was unreasonable. In any event, we note that the district court

7 awarded only approximately a third of Petitioner’s actual attorney fees. [RP 295-96,

8 308, 330] This adjustment may be reflective of Respondent’s concerns. See Jurado,

9 1995-NMCA-014, ¶ 8 (explaining that a reviewing court will make all reasonable

10 inferences from the evidence to support the judgment below).

11 {5} Third and finally, Respondent asserts that Petitioner did not prevail as to all of

12 the principal issues. [MIO 3-4] Although Respondent may have obtained favorable

13 rulings on tax deductibility, the termination of alimony upon Petitioner’s death, and

14 “recogni[tion of] all of his payment” toward the children’s college expenses, [MIO 3]

15 these matters may be regarded as less significant than the various issues upon which

16 Petitioner prevailed, including her entitlement to additional college expenses and,

17 most significantly, her entitlement to receive alimony. [RP 293, 284-85]

18 {6} On balance, we remain of the opinion that the pertinent factors weigh in favor

19 of the award of attorney fees. We therefore perceive no abuse of discretion.

3 1 {7} Accordingly, for the reasons stated above and in the notice of proposed

2 summary disposition, we affirm.

3 {8} IT IS SO ORDERED.

4 5 M. MONICA ZAMORA, Judge

6 WE CONCUR:

7 8 TIMOTHY L. GARCIA, Judge

9 10 J. MILES HANISEE, Judge