Monsanto v. Monsanto

• Decision Date: 20 April 1995
• Docket Number: No. 15561,15561
• Citation: 894 P.2d 1034,1995 NMCA 48,119 N.M. 678
• Parties: Joseph C. MONSANTO, Petitioner-Appellant, v. Mary Elizabeth MONSANTO, aka Mary Elizabeth Thomas, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 1034

894 P.2d 1034

119 N.M. 678

Joseph C. MONSANTO, Petitioner-Appellant, v. Mary Elizabeth MONSANTO, aka Mary Elizabeth Thomas Respondent-Appellee.

No. 15561.

Court of Appeals of New Mexico.

April 20, 1995.

[119 N.M. 679] Elizabeth A. Musselman, John William Clever, Leverick and Musselman, P.C., Taos, for petitioner-appellant.

Susan Schaefer McDevitt, Susan Schaefer McDevitt and Susan Lee Gumbrecht, a Professional Ass'n, Caroline Bass, Santa Fe, for respondent-appellee.

OPINION

APODACA, Chief Judge.

Joseph C. Monsanto (Husband) appeals from the trial court's order awarding $20,000 in attorneys' fees to Mary Elizabeth Monsanto (Wife). Husband raises two issues on appeal: (1) whether the trial court abused its discretion in awarding attorneys' fees to Wife, and (2) whether the award of attorneys' fees to Wife was supported by substantial evidence. We hold that the trial court properly considered the economic disparity between the parties and the parties' access to financial resources. In so holding, we determine that the trial court's award of attorneys' fees was supported by substantial evidence and that no abuse of discretion occurred. We thus affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to this appeal are not complicated. On April 8, 1992, Husband filed a petition for legal separation. Later that month, Wife filed a petition for dissolution of marriage. Both parties sought custody of their minor child. Following a protracted child custody dispute, Husband and Wife entered into a stipulated child custody agreement and later into a marital settlement agreement. Husband obtained custody of the child.

Husband and Wife both incurred substantial attorneys' fees and costs during the course of the litigation. The record indicates that Wife incurred approximately $60,000 in attorneys' fees and that Husband incurred approximately $40,000 in attorneys' fees.

On February 2, 1994, the trial court issued an informal letter decision, indicating that Husband would be ordered to pay attorneys' fees to Wife in the amount of $20,000. Specifically, the letter decision stated:

[Wife's] request for an award of attorneys fee. Both parties have incurred substantial attorneys fees in this cause. Both have received the assistance of their families in financing their efforts. Throughout the course of this case, [Wife] has been unreasonable in her failure to recognize the difficulties caused by some of her actions, and [Husband] has been recalcitrant, angry, and unwilling to resolve the issues.

[Husband] has testified that he is provided a credit card, with a line of credit up to $10,000 per month, which is paid for by his mother. Although he is not currently entitled to the assets of his mother's trust, he benefits from family resources each and every month, and has for some time. He has been unemployed during the litigation, and was for some time prior to that. It would be a mistake not to take into account his access to resources, as that access is a part of the wealth that allows him to pursue a particular lifestyle.

[Wife] has been employed as a registered nurse during the course of this litigation, until she recently quit her job to give birth to a second child. She is now living with her mother. During the litigation she has borrowed money from her mother. She has been able to effectively prosecute this action, but is expected to repay the moneys borrowed.

Given the disparity in resources, [Husband] will be ordered to pay attorneys fees to [Wife] in the amount of $20,000.00.

Following this decision letter, both parties submitted proposed findings of fact and conclusions of law on the attorneys' fees issue. On April 6, 1994, the trial court entered a formal order awarding $20,000 in attorneys' fees to Wife.

II. DISCUSSION

A. Preservation of Issues for Review

Wife initially argues that Husband failed to preserve the issues raised on appeal and thus waived his right to appellate review because he did not timely present findings of fact and conclusions of law to the trial court. See Cockrell v. Cockrell, 117 N.M. 321, 323, 871 P.2d 977, 979 (1994). We disagree. The record indicates that Husband submitted proposed findings of fact and conclusions of law to the trial court before the entry of its formal order awarding attorneys' fees to Wife. Thus, we hold that Husband adequately preserved the issues for review. See SCRA 1986, 1-052(B)(1)(f) (Repl.1992) (tendering findings and conclusions to preserve appellate review); cf. Fenner v. Fenner, 106 N.M. 36, 44, 738 P.2d 908, 916 (Ct.App.) (party who does not tender specific findings of fact waives review of findings on appeal), cert. denied, 106 N.M. 7, 738 P.2d 125 (1987).

B. Award of Attorneys' Fees

Generally, New Mexico follows the "American Rule" regarding the award of attorneys' fees. See State ex rel. Highway & Transp. Dep't v. Baca, 116 N.M. 751, 752-53, 867 P.2d 421, 422-23 (Ct.App.1993), cert. granted, 116 N.M. 801, 867 P.2d 1183 (1994). Under this rule, a party generally may not recover attorneys' fees unless authorized by a statute, a court rule, or an agreement expressly permitting their recovery. See Central Adjustment Bureau, Inc. v. Thevenet, 101 N.M. 612, 614, 686 P.2d 954, 956 (1984); Baca, 116 N.M. at 753, 867 P.2d at 423.

Specifically, New Mexico statutory law does authorize the trial court to award attorneys' fees in domestic relations cases. See NMSA 1978, Sec. 40-4-7(A) (Repl.Pamp.1994). Section 40-4-7(A) provides:

In any proceeding for the dissolution of marriage, division of property, disposition of children or spousal support, the court may make and enforce by attachment or otherwise an order to restrain the use or disposition of the property of either party, or for the control of the children, or to provide for the support of either party during the pendency of the proceeding, as in its discretion may seem just and proper. The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of his case.

(Emphasis added.) This statute "ensure[s] either party an efficient preparation and presentation of his case." Bustos v. Gilroy, 106 N.M. 808, 812, 751 P.2d 188, 192 (Ct.App.1988).

Thus, under Section 40-4-7(A), the determination of whether to grant an award of attorneys' fees and the amount of such award is within the discretion of the trial court and will be reviewed only to determine whether there has been an abuse of discretion. See id.; Fitzsimmons v. Fitzsimmons, 104 N.M. 420, 429, 722 P.2d 671, 680 (Ct.App.), cert. quashed, 104 N.M. 378, 721 P.2d 1309 (1986); Berry v. Meadows, 103 N.M. 761, 770, 713 P.2d 1017, 1026 (Ct.App.1986). In divorce actions, the trial court's discretion must be exercised with the purpose of insuring each party efficient case preparation and presentation. Berry, 103 N.M. at 770, 713 P.2d at 1026; see Sec. 40-4-7(A).

In particular, if economic disparity exists between the parties, such that one party may be inhibited from preparing or presenting a claim, the trial court should liberally exercise its discretion so as to remove that inhibition and assist the needy party. See Allen v. Allen, 98 N.M. 652, 655, 651 P.2d 1296, 1299 (1982); Schuermann v. Schuermann, 94 N.M. 81, 84, 607 P.2d 619, 622 (1980); Michaluk v. Burke, 105 N.M. 670, 676, 735 P.2d 1176, 1182 (Ct.App.1987). Thus, it is appropriate for the trial court to consider the parties' access to financial resources when exercising its discretion in awarding attorneys' fees. See, e.g., Mattox v. Mattox, 105 N.M. 479, 487, 734 P.2d 259, 267 (Ct.App.1987); Blake v. Blake, 102 N.M. 354, 365, 695 P.2d 838, 849 (Ct.App.1985).

Although there is authority for the proposition that the trial court may consider the parties' access to financial resources when awarding attorneys' fees in a divorce action, New Mexico case law is limited on this subject. This case, therefore, presents an issue not previously discussed by our courts: to what extent a trial court may consider a party's access to financial resources when awarding attorneys' fees in a divorce action to ensure the opposing party an efficient case preparation and presentation when there is economic disparity between the parties. Stated more specifically, what is the nature of the financial resources that a trial court may rely on in awarding attorneys' fees based on economic disparity?

Husband argues that the trial court abused its discretion in awarding attorneys' fees to Wife because it imputed to him, as financial resources and assets, money that was solely in the control of third parties and property over which he had no legal control. Specifically, Husband contends that the trial court incorrectly imputed the value of a credit card with a $10,000 monthly limit and payable by his mother, because it could be revoked by his mother at any time. He contends that it was also an abuse of discretion to impute to him the distribution of money from a trust fund or annual gifts made in anticipation of inheritance and to avoid taxes, because such assets were modifiable at the will of a third party, and as such, were not under Husband's control. Thus, Husband argues, the trial court should not be allowed to consider such resources because they are unreliable and may not be available in the future. We disagree.

This case does not deal with a situation concerning a future and ongoing obligation to pay, such as child support or alimony. In terms of money and resources available to Husband in the future to pay future obligations, it might well be an abuse of discretion to include these resources, an issue we need not decide at this time. Yet, the attorneys' fees awarded here are not a future obligation dependent on an estimate of future income or financial resources. Rather, the award represents a one-time payment to correct an imbalance in the past that has already happened, essentially to reimburse Wife and...