Fenner v. Fenner

• Decision Date: 07 May 1987
• Docket Number: No. 9180,9180
• Citation: 738 P.2d 908,106 N.M. 36,1987 NMCA 66
• Parties: Mary Sue FENNER, Petitioner-Appellee, v. Charles Arthur FENNER, Respondent-Appellant, v. David Flinchbaugh, Intervenor.
• Court: Court of Appeals of New Mexico

Page 908

738 P.2d 908

106 N.M. 36

Mary Sue FENNER, Petitioner-Appellee, v. Charles Arthur FENNER, Respondent-Appellant, v. David Flinchbaugh, Intervenor.

No. 9180.

Court of Appeals of New Mexico.

May 7, 1987.

[106 NM 37] Carl M. Sparks, Albuquerque, for respondent-appellant.

Roberta Beyer, Albuquerque, for petitioner-appellee.

OPINION

BIVINS, Judge.

From a judgment and final decree dissolving the parties' marriage, dividing their property and debts, awarding lump sum alimony and attorney fees, holding husband in contempt and from an order appointing a special master to sell husband's separate real property in Florida, husband appeals. We affirm, except for the sale of the Florida real property.

Husband raises seven issues on appeal: whether the trial court (1) incorrectly declined to grant a continuance of the trial on the merits because husband was undergoing psychiatric treatment in another state; (2) lacked jurisdiction over the wife because she failed to establish a present, good faith intention to reside in New Mexico; (3) erred in refusing to dismiss for lack of jurisdiction due to two prior marriages of husband, neither of which was ever dissolved; (4) had jurisdiction to order the sale by a special master of real property located in Florida; (5) erred in refusing to grant a continuance after allowing an intervenor to intervene on the day of the trial; (6) erred in assigning income tax liability and business debts as husband's separate responsibility; and (7) abused its discretion in dividing property, assigning debts and awarding alimony. We discuss these issues under four categories: jurisdiction, continuances, Florida property and claimed trial error.

FACTS

Husband and wife married in 1976. During the marriage they lived in Florida, Missouri, Arizona and New Mexico, where they acquired various property. Both parties worked until wife quit her job in 1983. During the marriage, husband earned substantially more than wife. Wife first filed for dissolution of marriage on June 10, 1985, in Cause No. DR-85-02349. At that time, she had resided in New Mexico only five months. Wife then amended the petition to ask for a legal separation. On July 10, 1985, after wife had resided in New Mexico for six months, she filed a new petition for dissolution of marriage in Cause No. DR-85-02816. The two causes were consolidated in July 1985.

On June 13, 1985, the trial court ordered interim relief to wife and ordered several banks to freeze certain accounts of the parties. Contrary to court order, husband left New Mexico sometime in June, taking with him over $50,000 in cash from the frozen accounts. The trial court entered an order to show cause and to account for the missing funds. Husband's only response was an affidavit in which he claimed to be married to Winefred Duffy Fenner at the time he married wife. Upon husband's failure to show cause, the trial court imposed a fine of $250 a day until the date of trial. By trial date, husband had accrued $16,000 in fines.

Two days before trial, David Flinchbaugh, an alleged business partner of husband, moved to intervene in the divorce trial, claiming husband owed him money. The trial court granted this intervention to determine "whether intervener's claim is a community or separate debt." The intervenor claimed that $35,000 of the frozen assets were business assets belonging to him. Intervenor is not a party to this appeal.

Husband did not appear at trial. His counsel claimed he was undergoing psychiatric treatment in California and produced a doctor's report to that effect. Counsel, however, failed to arrange a conference call with treating physicians as directed by the trial court. Because of husband's mental problems, counsel had moved for two continuances, which the trial court denied. Trial proceeded on the merits. At the time of divorce, wife was 62 years old and husband was 63 years old. Other facts relating to husband's issues will be discussed below.

JURISDICTION

Wife's Residency

NMSA 1978, Section 40-4-5 (Repl.1986) requires a party who seeks a divorce to reside in New Mexico for six months prior to filing for divorce and to have a domicile here. Domicile is shown by being physically present in the state and having a place of residence here, as well as by demonstrating a present, good faith intention to remain in the state permanently or indefinitely. Sec. 40-4-5(A) and (B).

Although decided under former law, we agree with Davey v. Davey, 77 N.M. 303, 308, 422 P.2d 38, 42 (1967) that "[t]he residence requirement specified by the statute, although jurisdictional, presents a question of fact for determination by the trial court." We will not overturn such a finding if it is supported by substantial evidence. Id. The evidence shows that wife lived in New Mexico for six months by the time she filed her second petition for divorce. She opened bank accounts here, registered to vote, registered her car and lived here. Such acts demonstrate both her physical presence here and her concurrent intention to make New Mexico her home. See Hagan v. Hardwick, 95 N.M. 517, 624 P.2d 26 (1981). " '[T]o effect a change from an old and established domicile to a new one, there must be * * * a fixed purpose to remain in the new location permanently or indefinitely. For domicile once acquired is presumed to continue until it is shown to have changed * * * .' " Id. at 519, 624 P.2d at 28 (quoting from Shilkret v. Helvering, 138 F.2d 925, 927 (D.C.Cir.1943)).

New Mexico appeared to be the current domicile of wife at the time of filing for divorce. Absent any evidence that she established a domicile in some other state when she filed her divorce action, we uphold the trial court's determination of jurisdiction over wife.

Husband's Prior Marriages

Husband contends by two affidavits that he was married to two other women, neither of whom he ever divorced, at the time of his marriage to wife. One affidavit, filed August 14, 1985, alleges that husband was married to Winefred Duffy Fenner on the date that he married wife. The affidavit does not state whether husband divorced Winefred nor is there a copy of a marriage certificate included. The other affidavit, filed on February 11, 1986, along with husband's jurisdictional objection and response to petitioner's motion for an order regarding the sale of the Florida property, alleges that husband was married to Margret Rakes Hall Fenner on the date he married wife and that he and Margret never divorced. Included with this affidavit is a copy of a Mexican marriage certificate, dated July 23, 1958.

The general rule in New Mexico is that "[i]n a chain of marriages in which a marriage is claimed to be invalid because of the continued existence of a predecessor, the presumption of validity initially attaches to the later in point of time." Panzer v. Panzer, 87 N.M. 29, 32, 528 P.2d 888, 891 (1974). "The authorities which we consider to be sound require proof of the prior marriage plus the fact that it has not been terminated by death or divorce." Id. at 33, 528 P.2d at 892. The challenging party must prove these facts by clear and convincing evidence. Id.

In our case, husband failed to prove even the existence of his marriage to Winefred, much less that the marriage was not dissolved by death or divorce. Other than his self-serving affidavit, husband offered no proof of his marriage to Winefred. The trial court "does not act arbitrarily in disregarding alleged uncontradicted testimony where legitimate inferences may be drawn from the facts and circumstances that contradict or cast reasonable doubt on the truth or accuracy of the testimony." Alfieri v. Alfieri, 105 N.M. 373, 733 P.2d 4, 9 (Ct.App.1987). " '[T]he interest of the witness furnishes a proper ground for hesitating to accept his statements[.]' " Id. (quoting from Strickland v. Roosevelt County Rural Elec. Coop., 94 N.M. 459, 465, 612 P.2d 689, 695 (Ct.App.1980), emphasis omitted). Given that husband presented evidence of one prior marriage, then six months later presented evidence of a second prior marriage, the trial court could have questioned husband's credibility. Absent any clear and convincing evidence of the marriage to Winefred, the trial court correctly rejected husband's claim of this marriage.

As to Margret, while husband may have shown, through an uncertified marriage license, that this marriage existed, he offered no clear and convincing proof that it was not terminated by death or divorce. See Allen v. Allen, 98 N.M. 652, 651 P.2d 1296 (1982). The trial court also correctly rejected husband's claim of the marriage to Margret.

CONTINUANCES

Trial

The record reflects that husband moved for two continuances, on September 11, 1985, and again on October 18, 1985. The basis of both motions was that husband was undergoing psychiatric treatment in California and was unable to prepare properly for the pending trial. On the day of trial, October 31, 1985, husband did not appear personally, but was represented by counsel. We assume that husband renewed this motion on the day of trial, although husband provides no references of this fact. At trial, husband's attorney presented a copy of a psychiatric report regarding husband. The report indicated that husband was discharged from the Veterans' Hospital in Long Beach, California, on October 25, 1985, and would be allowed to return to work on November 4, 1985, three days after trial ended. Although the trial court, before trial, directed a conference call with husband's doctors, counsel was unable to find any doctors who would participate. The trial court refused to grant a continuance.

The trial court may grant a continuance at its own discretion. Gonzales v. Gonzales, 85 N.M. 67, 509 P.2d 259 (1973). We will overturn only upon a showing of an abuse of that discretion. Id. The record indicates that husband could have appeared at trial and that he was not so mentally incompetent as to be unable to assist with his...