Hall v. Hall

• Decision Date: 26 August 1992
• Docket Number: 13310 and 13607,13138,Nos. 12953,s. 12953
• Citation: 114 N.M. 378,1992 NMCA 97,838 P.2d 995
• Parties: Elizabeth Jannan HALL, k/n/a Elizabeth Jannan Powell, Petitioner-Appellee/Cross-Appellant, v. Rex A. HALL, Respondent-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 995

838 P.2d 995

114 N.M. 378

Elizabeth Jannan HALL, k/n/a Elizabeth Jannan Powell Petitioner-Appellee/Cross-Appellant, v. Rex A. HALL, Respondent-Appellant/Cross-Appellee.

Nos. 12953, 13138, 13310 and 13607.

Court of Appeals of New Mexico.

Aug. 26, 1992.

Certiorari Denied Oct. 1, 1992.

[114 N.M. 381] Mary W. Rosner, Eileen Paez, Albuquerque, for petitioner-appellee/cross-appellant.

Roy G. Hill, Deming, for respondent-appellant/cross-appellee.

OPINION

PICKARD, Judge.

These are four consolidated cases, including four appeals and a cross-appeal, from a final decree of divorce and orders on subsequent efforts to enforce that decree. Except for the question of whether the trial court could award wife $1 per year in alimony, for what husband contends is only to preserve jurisdiction in the case, the issues arising from the final decree are substantial evidence issues that will be addressed summarily after we dispose of some preliminary matters, including whether the doctrine barring an appeal when an appellant accepts the benefits of a judgment applies to this case. We will state the facts, dispose of preliminary matters, address the question of substantial evidence, and then discuss the major issues raised by the cases. They involve (1) whether the award of $1 per year in alimony was proper; (2) whether the trial court could enforce the "property division" award via the exercise of contempt powers under the facts of this case; and (3) whether the trial court had jurisdiction during the pendency of the appeal to restructure the final decree once it became clear that husband was determined not to pay wife anything whatsoever.

We accept husband's contention that wife's accepting the benefits of the judgment does preclude us from considering her issues in this divorce case because wife has not seen fit to respond to the contention. We hold that substantial evidence supported the trial court's decision on the merits of the property division insofar as it is challenged by husband. We further hold that the trial court could properly award alimony of $1 per year, and that it could enforce the "property division" award through the use of its contempt powers because the property division was intended by the trial court to be the source of wife's support. However, we hold that the trial court was without power to modify the final decree during the pendency of this appeal. Accordingly, the decree is affirmed and all further orders of civil contempt are affirmed. An order of criminal contempt and the order modifying the final decree are reversed.

I. FACTS

Husband is an attorney who met wife in Texas during law school. They married in 1975, during his last year in law school. Husband moved into the house that wife owned and was supported in part by wife's income from her beauty salon. After husband's graduation, the parties moved to Deming, New Mexico, where husband's parents lived. Wife's house and business were sold, and the parties took the proceeds to begin their life in New Mexico. They used the proceeds for part of their living expenses during their first year in New Mexico, before husband passed the bar examination.

During the marriage, the parties acquired various properties and debts. In unchallenged findings, the trial court found that the community property was valuable but not liquid and that if the parties attempted to rapidly liquidate the properties to divide them, the parties' debt would exceed the properties' value. Accordingly, the trial court divided the property so that husband would be awarded the bulk of it and would pay wife $155,809 to equalize the division. The $155,809 would have been paid as follows: $17,287 on or before February 27, 1991, and $22,543 annually until 2001, starting February 27, 1992.

As part of its findings and conclusions, the trial court found that wife would not have income to support herself unless husband made timely payments on the property division. Accordingly, the decree provided that the parties would pay their own attorney fees as long as husband was timely in making the first three payments under the decree; that husband would be ordered to pay alimony of $1 per year as long as he was not more than fifteen days in arrears in his property division payments under the decree; that wife would have a lien against all of husband's property to secure payment of his indebtedness to her; and that

[a]ny diversion of funds made by [husband] to make payments ordered to be made by [wife] without prior consent of the court after motion and hearing shall be regarded as contempt of court, and [husband] will not be allowed credit for any such payments made against the amounts owed [wife].

The findings, conclusions, and decree were filed in open court on February 1, 1991. Unknown to either wife or the trial court until much later, on February 4, 1991, husband filed deeds that he had executed on January 11, 1991, deeding his properties to a Texas corporation of which he was the agent. The Texas corporation has since deeded the properties to a London corporation. Both parties appealed the final decree, and neither obtained a stay.

When February 27 came and went without husband's paying the $17,287 then due or executing documents required by the final decree, the trial court ordered him to show cause on March 8 why he should not be held in contempt. On March 6, husband's attorney filed a motion to vacate the March 8 hearing. The court did not act on the motion to vacate, and husband did not attend the hearing. The trial court found husband in contempt for his failure to attend the hearing and ordered a bench warrant for his arrest. At a later hearing, which husband attended and at which he was given the opportunity to present evidence, the trial court refused to set aside the earlier order. At that hearing, the trial court physically held husband in the courthouse until he signed a promissory note to wife in the amount of $155,809 and mortgages on what was thought to be his property to secure this note. During the hearing, the trial court asked husband if he had encumbered any of the property. (In its February 1 decree, it had ordered husband not to encumber any of the property.) Husband answered that he had not encumbered the property. The record indicates, contrary to husband's statement to the trial court, that between February 1 and the date of the hearing, husband recorded the deeds transferring the property to the Texas corporation.

At the conclusion of this hearing, husband was again found to be in contempt for failing to attend the earlier hearing. The trial court ordered husband to pay wife $1865 in attorney fees required to enforce prior orders and further ordered husband to pay wife the $17,287, that he was supposed to pay her in February, on or before March 25. The order provided that husband's failure to abide by the order would result in the assessment of a fine of $500 per day until he complied. Husband appealed this March 1991 order.

Wife, in the meantime, filed a motion to modify the final decree because husband was threatening to file bankruptcy to avoid paying the first installment on the final decree. Accordingly, wife requested that the trial court change the $1 per year alimony into a lump sum of $155,809 plus $1865. Wife also filed a motion for order to show cause why husband should not be held in contempt for failing to pay the $17,287 plus $1865 that was due on March 25, expressly seeking the threatened $500 per day in fines.

Following two additional hearings in May 1991, the first of which husband did not attend and the second of which he did attend, the trial court again found husband in criminal contempt for failing to attend the March 8 hearing, and in civil contempt for repeatedly violating other court orders, particularly to pay wife the first installment on the decree and other sums awarded to her as attorney fees. The trial court expressly found that court orders were not sufficient to enforce the judgments of the court. The trial court assessed the threatened civil contempt fine of $500 per day for a total of $28,000 in fines and $4246 in total attorney fees and costs to date. The trial court noted it had previously found that a piece of property awarded to husband as his separate property was worth $156,000, and it ordered husband to deed that property to wife "as her share of the community assets, in lieu of a ten (10) year payout." As part of this order, the trial court extinguished the promissory note for $155,809 it had earlier forced husband to sign. Husband appealed this order.

When it later appeared that husband had transferred this property to the Texas corporation, wife filed a motion to order husband to get the property back and transfer it to wife, and for further sanctions. In December 1991, the trial court found husband in contempt for failing to pay the $32,246 in fines and fees earlier ordered. It assessed further attorney fees of $740. It ordered husband to jail until the $32,986 was paid. Husband appealed this order.

As part of the December order, the trial court ordered husband to show cause why he should not be held in contempt for failure to transfer the land ordered to be transferred in lieu of the ten-year payout. Husband developed heart problems in jail and was hospitalized. A hearing on this order to show cause apparently has not been held. In connection with this court's action on husband's motion to stay the trial court's order to pay $32,986 or go to jail, the trial court recently held a hearing on the state of husband's health. The trial court found that husband was to avoid stress; that going to jail was stressful; that husband did other things that were stressful and detrimental to his health, such as drinking alcohol and harassing wife's family; and that the most stressful thing of all for husband to do from husband's point of view would be to pay wife any money whatsoever.

II. PRELIMINARY...