Bursum v. Bursum

• Decision Date: 28 October 2004
• Docket Number: No. 23,798.,23,798.
• Citation: 102 P.3d 651,136 N.M. 584
• Parties: Holm O. BURSUM, IV, Petitioner-Appellee/Cross-Appellant, v. Kimberly S. BURSUM, Respondent-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

102 P.3d 651

136 N.M. 584

Holm O. BURSUM, IV, Petitioner-Appellee/Cross-Appellant, v. Kimberly S. BURSUM, Respondent-Appellant/Cross-Appellee.

No. 23,798.

Court of Appeals of New Mexico.

October 28, 2004.

Paul J. Kennedy, Mary Y.C. Han, Kennedy & Han, P.C., Albuquerque, NM, for Appellee/Cross-Appellant.

David Henderson, Downing & Henderson, P.C., Santa Fe, NM, for Appellant/Cross-Appellee.

OPINION

PICKARD, Judge.

{1} Wife appeals the district court's order dissolving her marriage, dividing property, and awarding child support. Husband cross-appeals. The parties raise numerous arguments, most of which we address in a memorandum opinion accompanying this formal opinion. In this opinion, we address five issues, all related to attorney fees. Wife contends that the district court had jurisdiction to consider whether to award her attorney fees from the couple's California child custody case. While we agree, we hold that an award of her California attorney fees is not mandatory, and we further hold that any error in the district court's view of its jurisdiction can be viewed as harmless under the circumstances of this case. Wife also argues that the district court should have labeled all of her custody-related attorney fee debt as a community debt. We disagree, again under the circumstances of this case. Additionally, Wife argues that the district court should have ordered Husband to pay all of her New Mexico attorney fees, while on cross-appeal, Husband argues that he should have been permitted to take discovery on Wife's California attorney fees and that the district court should have credited him for his partial payment of Wife's attorney fees. We affirm the district court's decisions on these issues as well.

FACTS AND PROCEEDINGS

{2} Husband and Wife married in California in July 1991. In 1994, they moved to Arizona. In 1999, they relocated to Socorro, New Mexico, where Husband was raised and where his family owns a holding company that owns the First State Bank of Socorro. The relationship deteriorated, and in July 2000, Wife moved to her former home of California while seven months pregnant. Wife alleged that Husband had threatened her and her mother and that she had discovered that Husband had been secretly investing community assets into separately held accounts and ventures.

{3} Wife filed for legal separation in California in July 2000. Husband filed for dissolution of marriage in New Mexico about two weeks later. In September 2000, their child (Child) was born in California. Husband successfully moved to quash all proceedings in California except for the custody case because the California court did not have personal jurisdiction over him. Husband then filed for determination of custody in New Mexico.

{4} The California court entered an order making an initial determination of child custody jurisdiction in California, but allowing Husband to raise inconvenient forum grounds. The California court later granted Husband's motion to transfer the case to New Mexico on inconvenient forum grounds and ordered the establishment of a travel fund to facilitate Wife's participation in the litigation. Wife appealed to the California Court of Appeals.

{5} Based on its inconvenient forum decision, the California superior court transferred the case to New Mexico, where the New Mexico district court assumed jurisdiction in all matters and immediately awarded Wife interim child and spousal support. Then, in April 2001, the California Court of Appeals issued an opinion holding that California was the appropriate jurisdiction for the custody case and directing the California superior court to issue an order vacating the transfer of the case to New Mexico. From this point on, two separate cases proceeded, with child custody litigation occurring in California and litigation pertaining to the divorce, property, and support occurring in New Mexico.

{6} The facts pertaining to attorney fees are as follows. Both parties requested attorney fees on multiple occasions. In June 2001, citing the need "to equalize the monies paid to the parties' New Mexico attorneys for attorney's fees and costs," the district court ordered Husband to pay $50,000 to Wife. In October 2001, the court ordered:

Father[']s attorney fee loan and Mother[']s California attorney fees will need to be taken care of by liquidating assets. Short term (one or two months) this will be done with the Christmas Club Funds as the [court-appointed expert] directs, mid term shall be as determined by the Court at the next scheduled hearing.... [I]n the mid term sum will also need to be included funds for ongoing attorney fees and expert witness fees.

In November 2001, the court ordered monthly payments on Wife's California attorney fees to be made from a fund established to finance litigation-related travel, child visitation, and payment of taxes. It also ordered that money from that fund be used to pay the court-appointed expert. In October 2002, the district court decided that it would not consider California attorney fees as part of the New Mexico case. From the record, it appears that the district court did not use its sanctioning authority to award attorney fees at any time.

{7} The case was originally heard by Judge James Loughren, and when he stepped down from the bench, he continued to hear the case as a special master for Judge Nan Nash. In January 2003, the special master produced a report on attorney fees. The report found that New Mexico attorney fees totaled $173,000 for Husband and $115,600 for Wife. It listed California attorney fees as $150,369 for Husband and $134,700 for Wife, but stated that New Mexico did not have jurisdiction to consider the California attorney fees. The report labeled each party's attorney fee debt as separate debt, making no distinction between California and New Mexico fees.

{8} The report also reviewed the parties' actions over the course of litigation, concluding that "[n]either party so clearly prevailed, nor acted with clean hands such that either is entitled to extraordinary relief or sanctions as against the other." The special master found that Husband had paid Wife $34,902.39 pursuant to earlier orders requiring him to pay part of Wife's attorney fees and that because this was paid in an attempt to equalize fees, Husband was not entitled to reimbursement or credit for this amount. Finally, considering a series of factors discussed in more detail below, the special master recommended that "the parties should each bear their own remaining attorney fees and no further allocation of attorney fees between the parties than what took place during the case is warranted."

{9} After Husband and Wife litigated every aspect of property, support, and fees, the district court entered an order dissolving the marriage in December 2002. Following an additional two months of litigation over the final division of property, the district court adopted the special master's reports on property division and attorney fees. The present appeals followed.

DISCUSSION

{10} There are three main sources for the district court's power to award attorney fees to a party in a divorce. First, the district court "may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his [or her] case." NMSA 1978, § 40-4-7(A) (1997). We have held that "[i]f there is economic disparity between the parties in a domestic relations case, such that one party may be inhibited from preparing or presenting a claim, then the trial and appellate courts should be liberal in exercising their discretion to award attorney fees to discourage any potential judicial oppression." Bustos v. Gilroy, 106 N.M. 808, 812, 751 P.2d 188, 192 (Ct.App.1988).

{11} Second, Rule 1-054(E) NMRA instructs parties to make a motion for attorney fees. In the domestic relations area, Rule 1-127 NMRA provides that:

A motion for attorney fees pursuant to Rule 1-054 NMRA shall include an itemization of time expended and an affirmation that the fees claimed are correctly stated and necessary. In awarding fees, the court shall consider relevant factors presented by the parties, including but not limited to:

A. disparity of the parties' resources, including assets and incomes;

B. prior settlement offers;

C. the total amount of fees and costs expended by each party, the amount paid from community property funds, any balances due and any interim advance of funds ordered by the court; and

D. success on the merits.

Rules 1-054(E) and -127 appear to implement Section 40-4-7(A) and the cases decided under it. See, e.g., Gilmore v. Gilmore, 106 N.M. 788, 792, 750 P.2d 1114, 1118 (Ct.App.1988)

.

{12} Third, the district court may issue sanctions, including attorney fees, when a party files a pleading or motion without information and belief that there is good ground to support it or if it is interposed for delay or otherwise litigates in bad faith. Rule 1-011 NMRA; see State ex rel. State Highway & Transp. Dep't v. Baca, 120 N.M. 1, 4-5, 896 P.2d 1148, 1151-52 (1995)

; Rivera v. Brazos Lodge Corp., 111 N.M. 670, 675-76, 808 P.2d 955, 960-61 (1991). In New Mexico, contrary to Wife's argument, the courts' inherent powers are limited to these situations of bad faith, and courts have statutory powers, rather than inherent powers, to award attorney fees in divorce cases. See N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 9, 127 N.M. 654, 986 P.2d 450; Seipert v. Johnson, 2003-NMCA-119, ¶¶ 9-10, 134 N.M. 394, 77 P.3d 298.

1. Jurisdiction to Consider California Attorney Fees

{13} Wife argues that the district court should have considered whether to order Husband to pay her California attorney fees. The district court refused to consider the California fees because it did not believe that jurisdiction was proper. We review the legal issue of whether the court had jurisdiction de novo. See Weddington v. Weddington, 2004-NMCA-...