English v. English

• Decision Date: 30 June 1994
• Docket Number: No. 14696,14696
• Citation: 118 N.M. 170,879 P.2d 802,1994 NMCA 90
• Parties: Janice E. ENGLISH, Petitioner-Appellant, v. Lloyd Micheal ENGLISH, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 802

879 P.2d 802

118 N.M. 170

Janice E. ENGLISH, Petitioner-Appellant, v. Lloyd Micheal ENGLISH, Respondent-Appellee.

No. 14696.

Court of Appeals of New Mexico.

June 30, 1994.

Certiorari Denied Aug. 10, 1994.

Charlotte Greenfield, Reeves, Chavez, Greenfield, Acosta & Walker, P.A., Las Cruces, for petitioner-appellant.

Shane A. English, Keithly & English, Anthony, for respondent-appellee.

OPINION

BIVINS, Judge.

This appeal arises out of a divorce action, in which Janice E. English (Wife) appeals the second of two supplemental judgments. Wife raises several issues related to the disposition of Lloyd Micheal English's (Husband) retirement plan. Husband claims the notice of appeal was not timely filed, which creates jurisdictional error and, in any event, Wife is not entitled to review because she failed to preserve error. We affirm in part and reverse and remand in part with instructions for disposition consistent with this opinion.

BACKGROUND

The chronology of proceedings follows:

(1) On December 17, 1991, the divorce trial between Wife and Husband was concluded.

(2) On December 20, 1991, a partial judgment granting the parties a divorce was entered, with the district court reserving entry of its judgment of other issues for a supplemental judgment.

(3) On March 4, 1992, the district court entered its first supplemental judgment, which adopted Husband's proposed version.

(4) On March 20, 1992, Wife filed a motion for relief from judgment, asking the court to "set aside, amend, and/or correct the [s]upplemental [j]udgment," to allow submission of findings of fact and to hold a hearing under both NMSA 1978, Section 39-1-1 (Repl.Pamp.1991), and SCRA 1986, 1-060(B)(6) (Repl.1992). In Wife's motion, she argued Husband's proposed version of the supplemental judgment did not include the effect that certain retirement options available to him would have on Wife's community property share of Husband's retirement benefits. Wife's proposed supplemental judgment, on the other hand, included the following language: "[Wife's share in the community interest of Husband's retirement benefits] shall be calculated ... without reduction for the naming of a survivor beneficiary." In the alternative, Wife argued she should receive a share of any survivorship annuity, based on a time-rule formula. Wife also argued the district court rejected Wife's request to have an adjustment increasing the amount of her share of Husband's retirement benefits because of increases in the cost of living between the time of divorce and the time of the ultimate payout of benefits based on the Consumer Price Index (CPI), and instead only allowed for adjustments based on one-half of the increases in the CPI or four percent per year, whichever is less.

(5) On March 30, 1992, Wife filed a motion pursuant to SCRA 1986, 12-201(E) (Repl.1992), for extension of time to file her notice of appeal.

(6) On April 1, 1992, the district court granted the motion for extension of time to file a notice of appeal. The district court also agreed to hold a hearing on the issues related to the retirement-benefits issue, previously mentioned.

(7) On April 20, 1992, Wife submitted her first requested findings of fact.

(8) On May 4, 1992, the district court heard arguments from the parties on issues in Wife's March 20, 1992, motion and received additional testimony on the retirement-benefits issue. The district court then entered an order denying Wife's request to add language regarding the retirement-benefits issue and temporarily setting aside the supplemental judgment to allow the parties time for submitting findings and conclusions.

(9) Wife then filed two sets of amended findings and conclusions on May 12 and 19, 1992. Husband filed his proposed findings and conclusions on May 19, 1992. In these submitted findings, the parties discussed the effect of Husband's right to elect among retirement plan options and Wife's request for the time-rule formula and application of the CPI. The parties additionally addressed the following two issues that were raised during the May 4, 1992, hearing: whether Wife's social security benefits could be considered as an offset for her interest in Husband's retirement benefits and whether an agreement had been made between Husband and Wife that would have waived her right to her share of Husband's retirement benefits.

(10) On April 6, 1993, almost one year later, a second supplemental judgment was entered, which adopted the original supplemental judgment and additionally incorporated Husband's findings of fact and conclusions of law.

(11) On April 7, 1993, Wife filed her notice of appeal from the second supplemental judgment.

DISCUSSION

1. Jurisdiction

We first address the issue of whether Wife timely filed her notice of appeal. Under the unique circumstances of this case, we conclude she did.

As noted above in the chronology, Wife's postjudgment motion filed on March 20, 1992, sought relief under Section 39-1-1 and SCRA 1-060(B)(6). Husband argues that, with respect to the Section 39-1-1 ground, because Wife's motion was deemed automatically denied by operation of law on or about April 20, 1992, the district court lost jurisdiction and, therefore, could not set aside the first supplemental judgment of March 4, 1992; thus, in order for this Court to have jurisdiction, Wife must have filed her notice of appeal on or before June 19, 1992, the date her extension pursuant to SCRA 12-201(E)(1) expired. Having failed to file within that time, Husband argues, Wife's notice of appeal was untimely.

With respect to the SCRA 1-060(B)(6) ground in Wife's postjudgment motion, Husband concedes that the district court had a longer period within which to rule on that motion than the thirty-day limitation prescribed under Section 39-1-1. Notwithstanding, Husband argues that Wife did not advance a proper SCRA 1-060(B)(6) ground, and, therefore, the district court properly denied Wife's SCRA 1-060(B)(6) motion by its order of May 4, 1992. Husband then argues that Wife's only recourse was to appeal from the denial of her motion for relief under SCRA 1-060(B)(6). Having failed to timely appeal from that order, Husband argues, Wife's appeal was untimely and this Court does not have jurisdiction.

The tortuous path taken to bring this case before this Court for review pushes to the outer limits our ability to accept jurisdiction. Notwithstanding, we conclude that this Court does have jurisdiction. We explain why.

Husband is correct that once the thirty-day period under Section 39-1-1 passed without a ruling on Wife's motion, the district court lost jurisdiction over the first supplemental judgment under Section 39-1-1. See Wagner Land & Inv. Co. v. Halderman, 83 N.M. 628, 630, 495 P.2d 1075, 1077 (1972) (where no ruling made within thirty days after motion for relief from judgment, motion denied by operation of law and district court without jurisdiction thereafter to permit filing of requested findings and conclusions); National Am. Life Ins. Co. v. Baxter, 73 N.M. 94, 99-100, 385 P.2d 956, 959-60 (1963) (district court lost jurisdiction to deal with motion for rehearing after it was denied by operation of law). Thus, Husband is correct that on or about April 20, 1992, thirty days after the filing of her postjudgment motion, Wife had thirty days (with an additional thirty days pursuant to her motion to extend time to file notice of appeal) in which to perfect her appeal. That period expired on or about June 19, 1992. The problem is that on May 4, 1992, prior to expiration of the extension, the district court withdrew the only judgment from which Wife could have taken an appeal. To counter that, Husband argues that the district court, having lost jurisdiction over the case, had no authority to withdraw the supplemental judgment on May 4, 1992, and, therefore, Wife should have appealed from the order of May 4, 1992. While Husband is correct that the court lost jurisdiction under Section 39-1-1, it nevertheless still had jurisdiction over the supplemental judgment under SCRA 1-060(B).

With continuing jurisdiction under SCRA 1-060(B), the district court withdrew the judgment while at the same time denying Wife's motion. We construe the order of May 4, 1992, as (1) setting aside the earlier judgment, (2) indicating that the court would deny Wife's motion, but (3) giving the parties time to submit proposed findings and conclusions before entering a new judgment. Although we agree with Husband that Wife's SCRA 1-060(B)(6) motion did not provide exceptional circumstances, and therefore was properly denied, see Wehrle v. Robison, 92 N.M. 485, 487, 590 P.2d 633, 635 (1979); Mendoza v. Mendoza, 103 N.M. 327, 331-32 706 P.2d 869, 873-74 (Ct.App.1985), nevertheless, we conclude the district court had jurisdiction under SCRA 1-060(B) to set aside its earlier supplemental judgment. The court subsequently entered a second supplemental judgment on April 6, 1993. Wife's notice of appeal timely filed after the entry of that judgment was timely and sufficient to give this Court jurisdiction.

In reaching this conclusion, we have not overlooked the cases Husband relies on for the proposition that a motion for relief from judgment under SCRA 1-060(B) is not intended to extend the time for taking an appeal and cannot be used as a substitute for an appeal. See, e.g., Gedeon v. Gedeon, 96 N.M. 315, 317, 630 P.2d 267, 269 (1981). In Gedeon, the appellant never appealed from a stipulated order granting custody to his former wife, or from several other orders, and waited until the time for appeal from that order had passed before bringing his SCRA 1-060(B) motion challenging the orders. Id. Unlike that situation, Wife, in the case before us, was obviously attempting to put herself in a position where she could appeal the original supplemental judgment and was not relying solely on the SCRA 1-060(B) motion to attempt to extend the time for filing an...