Cortez v. Cortez

• Decision Date: 09 October 2007
• Docket Number: No. 27,629.,27,629.
• Citation: 2007 NMCA 154,172 P.3d 615
• Parties: Diana CORTEZ, Petitioner-Appellee, v. Sergio Rene CORTEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

172 P.3d 615

2007 NMCA 154

Diana CORTEZ, Petitioner-Appellee, v. Sergio Rene CORTEZ, Defendant-Appellant.

No. 27,629.

Court of Appeals of New Mexico.

October 9, 2007.

Certiorari Granted, No. 30,717, November 20, 2007.

Mary W. Rosner, Rosner & Chavez, LLC, Las Cruces, NM, for Appellee.

Shane A. English, Keithly & English, P.C., Anthony, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} The issue presented in this case is whether depositing a check in the mail on the date that payment is due pursuant to a Stipulated Final Judgment of Dissolution of Marriage (Stipulated Judgment) satisfies the obligation to pay on that date. The district court concluded that the payment was timely. We hold that depositing the check in the mail on the due date did not constitute payment on that date because the terms of the Stipulated Judgment did not authorize payment by mail, and there was no course of dealing between the parties reflecting an agreement that depositing the payment in the mail constituted payment. Concluding that actual delivery of the payment by the deadline was required, we reverse.

FACTS AND PROCEDURAL HISTORY

{2} Husband and Wife were both represented by counsel in the underlying divorce action. The case was resolved when they and their attorneys negotiated the Stipulated Judgment. The district court then approved the Stipulated Judgment and adopted it as its own final judgment. In pertinent part, the parties agreed, and the district court ordered, that the marital home was awarded to Wife. It was further agreed:

As long as [Husband] remains liable on the mortgage indebtedness, if [Wife] becomes more than sixty (60) days delinquent on either or both of the mortgage obligations, then [Husband] may, but shall not be obligated to, cure all or part of the delinquency and in that event he shall have a lien on the property for all sums he elects to pay. If [Husband] elects to pay the entire amount of the mortgage delinquency, he shall also have the right and option of assuming and succeeding to all of [Wife's] right, title and interest in the property, and in that event [Wife] shall have the right to redeem the property from [Husband] by paying [Husband] all sums paid by him to clear the delinquency within thirty (30) days after he exercises the option to assume and succeed to [Wife's] interest.

{3} After the divorce, Wife fell more than sixty days delinquent on the mortgage. Husband elected to cure the delinquency by paying the delinquent amount due. By facsimile correspondence dated November 28, 2006, Husband's counsel notified Wife through her counsel that Husband had cured the delinquency and that he had elected to exercise his right and option under the Stipulated Judgment of assuming and succeeding to all of Wife's right, title, and interest in the property, and he further notified Wife of her right under the Stipulated Judgment to redeem the property from Husband by reimbursing him the delinquency paid within thirty (30) days from November 28, 2006. Wife's counsel responded that she was pursuing refinancing of the home and that once she confirmed the amount of money paid by Husband towards the mortgage, "she will reimburse him by December 28, 2006." Wife mailed a check to Husband for the correct amount on December 28, 2006, via overnight express mail. The first delivery attempt of the check was the next day on December 29, 2006, and it was not actually delivered to Husband until January 4, 2007. By letter dated January 5, 2007, Husband's counsel gave notice of his election not to accept the late payment and returned it to Wife's counsel.

{4} Husband then filed a motion in the district court to confirm that Wife had failed to exercise her right of redemption according to the terms of the Stipulated Judgment. Wife's response confirmed that the check was mailed to Husband on December 28, 2006, and asserted that the mailing constituted a timely redemption of the property pursuant to the Stipulated Judgment.

{5} Following two hearings and after considering the parties requested findings of fact and conclusions of law, the district court entered its findings of fact and conclusions of law. Therein, the district court noted that it was undisputed that Wife fell more than sixty days delinquent on the mortgage obligation and that Husband elected to pay, and did pay, the entire amount of the mortgage delinquency. Further, it was undisputed that Husband's counsel notified Wife through her counsel, via facsimile, on November 28, 2006, that Husband had cured the delinquency and that he elected to exercise his right and option under the Stipulated Judgment of assuming and succeeding to all of Wife's title, right, and interest in the property and that Wife had a right under the Stipulated Judgment to redeem the property from Husband by reimbursing him the amount of the mortgage delinquency within thirty days from November 28, 2006. Finally, the district court noted it was undisputed that Wife placed a redemption payment in the United States Mail properly addressed to Husband on December 28, 2006. The district court concluded as a matter of law that the redemption period ended on December 28, 2006, and that Wife's "deposit of the redemption payment in the mail on the payment due date fell within the redemption period and, pursuant to Rule 1-005 [NMRA], is timely." In its formal order denying Husband's motion to confirm that Wife failed to exercise her right of redemption, the district court stated, "Although actual delivery of the redemption payment was made after the expiration of the [thirty-day] redemption period, [Wife's] deposit of the redemption payment in the mail on the payment due date constitutes timely payment under the mailbox rule." Husband appeals.

STANDARD OF REVIEW

{6} Our standard of review in this case is de novo for two reasons. First, the relevant facts are undisputed. We therefore review de novo the legal conclusions made by the district court. See Johnson v. Yates Petroleum Corp., 1999-NMCA-066, ¶ 3, 127 N.M. 355, 981 P.2d 288 (stating that when the relevant facts are undisputed, the legal interpretation of those facts is subject to de novo review on appeal). Second, a marital settlement agreement is a contract, and the rules of contract law generally apply to such agreements. See Herrera v. Herrera, 1999-NMCA-034, ¶ 9, 126 N.M. 705, 974 P.2d 675 (holding that marital settlement agreements are contracts, subject to contract law). The general rules of contract interpretation are:

Whether an ambiguity exists is a question of law to be decided by the court. This Court has held that a contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions. The mere fact that the parties are in disagreement on construction to be given to the contract does not necessarily establish an ambiguity. In making its determination, the court must consider the agreement as a whole. Moreover, where the terms of an agreement are plainly stated, the intention of the parties must be ascertained from the language used. Absent a finding of ambiguity, provisions of a contract need only be applied, rather than construed or interpreted.

Levenson v. Mobley, 106 N.M. 399, 401-02, 744 P.2d 174, 176-77 (1987) (internal citations omitted). See also Sitterly v. Matthews, 2000-NMCA-037, ¶ 15, 129 N.M. 134, 2 P.3d 871 (stating that a settlement agreement is interpreted in the same way as any other contract, and "[w]hether a contractual provision is ambiguous is a question of law, which we review de novo").

ANALYSIS

{7} Husband argues that neither Rule 1-005 nor the "mailbox" rule apply because actual payment by Wife on or before the due date is required by the stipulated judgment for the redemption payment to be effective. We agree.

{8} Rule 1-005 does not apply to Wife's placing the payment in the mail on December 28, 2006. This Rule only applies to pleading and papers that relate to litigation that is actually before the district court, and there was no litigation pending before the district court when Wife mailed the payment to Husband. Rule 1-005 expressly states that it applies to an "order required by its terms to be served," to "every pleading subsequent to the original complaint," to papers "relating to discovery," to a "motion other than one which may be heard ex parte," and to "every written notice, appearance, demand, offer of settlement, designation of record on appeal, and similar paper." The Rules of Civil Procedure govern the procedure in the district courts in all suits of a civil nature. Rule 1-001(A) NMRA. Since no civil action was pending when Wife mailed the payment on December 28, 2006, and mailing the payment was not a procedural act performed within the context of an actual civil action, Rule 1-005 does not answer whether Wife's payment to Husband was timely under the stipulated judgment.

{9} The "mailbox" rule provides that "a payment is made when a letter containing a remittance, properly addressed and with postage prepaid, is deposited into the mail where the custom of the parties authorizes payment by mail or when payment by mail has been authorized." 60 Am.Jur.2d Payment § 11 (2007); see Schneider National Inc. v. State Taxation and Revenue Dep't, 2006-NMCA-128, ¶ 13, 140 N.M. 561, 144 P.3d 120 (stating that the common law "mailbox" rule stands for the proposition that, "proof that a letter has been properly addressed and deposited in the mail gives rise to the presumption that it was received by the recipient in ordinary course"). There was no evidence of any custom between Husband and Wife about the matter before the court. We must therefore determine whether they otherwise agreed to payment by mail. The Stipulated Judgment provides that Wife shall have the right to redeem the property "by paying [Husband] all sums paid by him to cure the delinquency within thirty (30) days after he exercises the option to assume and succeed to [Wife's] interest." The...