Nichols v. Nichols
| Decision Date | 24 June 1982 |
| Docket Number | No. 13641,13641 |
| Citation | 98 N.M. 322,648 P.2d 780,1982 NMSC 71 |
| Parties | Oretta J. NICHOLS, Petitioner-Appellant and Cross-Appellee, v. Eddie E. NICHOLS, Respondent-Appellee and Cross-Appellant. |
| Court | New Mexico Supreme Court |
Petitioner Oretta Nichols (Wife) filed suit for dissolution of her marriage to Respondent Eddie Nichols (Husband). At the conclusion of a hearing conducted in November 1980, the district court orally granted the divorce and decided property, support and child custody issues. The court entered final judgment December 30, 1980. Seventy-one days later, on March 11, 1981, the district court entered a second final judgment. Wife appeals the entry of the second judgment; Husband cross-appeals the court's treatment (in both judgments) of some of his separate property.
The following facts appear in the record. At the close of the November hearing, the court announced that the couple's residence was community property and that Wife "may live there and make the monthly payments if she wants to do so, and she will be credited with principal reduction upon sale." The court also awarded Wife $300 in attorney's fees and ordered that Husband pay child support:
During the time he works for Dial Electric, he will pay $150 per month child support * * *. That will accrue from November 1, 1980, but the legal requirement will be $200 a month that accrues from that date, and that will be up to $200 when his employment changes, or he returns to work for Continental Telephone Company.
Both parties subsequently submitted proposed findings of fact and conclusions of law. Husband's addressed only the separate property status of the couple's residence. On December 30, 1980, the court entered its first final judgment, including the following provisions:
3. Respondent is hereby ordered to pay the sum of $200.00 per month as and for child support with said obligation incurring from November 1, 1980. Further, that during the pendency of the time that Respondent works for Dial Electric, he will pay the reduced sum of $150.00 per month, with the $200.00 per month obligation resuming when Respondent returns to work for Continental Telephone Company of the West. The difference between the $150.00 per month obligation and the $200.00 per month obligation shall be made current upon Respondent's return to work for Continental Telephone Company of the West.
7. Respondent is hereby ordered to maintain the medical insurance programs upon the minor children of the parties until they attain the age of majority.
8. Respondent is hereby ordered to pay the sum of $750.00 as and for Petitioner's attorney fees to Petitioner * * *.
9. Respondent is hereby ordered to pay the sum of $161.12 per month as and for the house payment on the family home of the parties and will be credited with the principal reduction thereon upon the sale of the property.
On January 21, 1981, Wife filed her "Proposed Supplemental Findings of Fact and Conclusions of Law," which repeated some of her earlier proposals. On February 2, Husband filed a second set of proposed findings and conclusions, adding to his first proposals some which addressed the issues of child support and attorney's fees. On March 11, the district court entered its second final judgment without stating that it had withdrawn its first judgment. The court largely repeated its previous orders, including the child support provision. However, the court omitted the order that Husband maintain medical insurance for the children, and substituted these provisions for the earlier ones:
7. Respondent is hereby ordered to pay the sum of $300.00 as and for Petitioner's attorney's fees * * *.
8. Petitioner shall make the monthly payments upon the family home and will be credited with the principal reduction thereon upon the sale of the property.
The first issue is whether the district court properly entered the second final judgment. Wife identifies three provisions under which the trial court might have had the authority to modify, reopen, or vacate the first judgment: Section 39-1-1, N.M.S.A.1978; Rule 60(b), N.M.R.Civ.P., N.M.S.A.1978; Section 40-4-7, N.M.S.A.1978. She argues that the court's action was improper under any of the provisions.
Our determination of the propriety of the court's action depends on our examination of the record before us on appeal. This record is somewhat confusing and requires that we deal first with procedural issues before we can reach the substantive matters raised.
The record on appeal sent up from the district court contains a transcript of the testimony at the November hearing, two sets of findings of fact and conclusions of law proposed by each party, and two final judgments with supporting findings and conclusions. It does not include a transcript of any other hearing, nor does it include any motion to reconsider or vacate the first judgment or an order to set aside that judgment.
Wife contends that the record below is totally devoid of any motion, made by either Husband or the trial court, for relief from the judgment, or any action taken by the court within 30 days of the entry of the first judgment. Husband maintains that on January 19, 1981, the district court conducted a hearing on Husband's motion to review the judgment, and that counsel for both parties attended. He also asserts that although there was no formal written order setting aside the judgment and no record of the action, the court did set aside the first judgment at the January hearing and requested that the parties file new proposed findings, conclusions and judgment.
Husband's assertions concerning the proceedings below are contained in his "Suggestion of Diminution of Record and Motion for Writ of Certiorari" filed in this Court the same day he filed his answer brief. Husband requested that we "issue a Writ of Certiorari ordering the trial court to file its certificate certifing (sic) that the December 30, 1980, judgment was set aside on January 19, 1981, at the hearing to review the judgment." We treated his motion as one to correct the record pursuant to Rule 8(f) N.M.R.Civ.App., N.M.S.A.1978, and, after hearing arguments, denied it.
Rules 7 and 8 of the Rules of Appellate Procedure for Civil Cases, N.M.S.A.1978, govern the contents and the procedure for challenging or enlarging the record on appeal. Our rules place the primary burden of properly preparing the record on the appellant. See also, e.g., Flower v. Willey, 95 N.M. 476, 623 P.2d 990 (1981); General Services Corp. v. Board of Com'rs, 75 N.M. 550, 408 P.2d 51 (1965); Berkstresser v. Voight, 63 N.M. 470, 321 P.2d 1115 (1958). However, the appellee shares some of that burden. See, e.g., N.M.R.Civ.App. 7(b), (e).
Here, both Wife and Husband appealed from portions of the judgment and requested the entire record proper except for summonses and notices of depositions. Neither excluded any post-judgment motions or orders to vacate judgment in their requests. 1 Although neither party filed a written request that the reporter prepare any transcript of proceedings, the skeleton transcript filed by Wife and the record proper contain the reporter's certification "that Appellants have made satisfactory arrangements for the payment of the cost of the transcript of proceedings," and a transcript of the November hearing appears in the record on appeal. Because Wife did not file a description of the parts of the proceedings which she intended to include in the transcript, we can only conclude that she had ordered the entire transcript of proceedings. See N.M.R.Civ.App. 7(b).
Husband did not file any objection to the transcript of proceedings in the district court, which would have permitted it to correct anything amiss, such as the lack of transcript of the alleged January hearing. See id. Nor did he avail himself of the provisions of Rule 7(c), which would permit him to prepare a statement of the unreported January proceeding and submit it, along with Wife's objections, to the district court for settlement, approval, and inclusion in the record on appeal. The fact that the transcript on appeal had already been filed in the Supreme Court would not have prevented him from preparing such a statement; this correction of the record was not the type requiring leave of the appellate court under Rule 60(a), N.M.R.Civ.P., N.M.S.A.1978 (Repl.Pamp.1980). See, e.g., Beyer v. Montoya, 75 N.M. 228, 402 P.2d 960 (1965); Telephonic, Inc. v. Montgomery Plaza Company, Inc., 87 N.M. 407, 534 P.2d 1119 (Ct.App.1975). Rule 8(f), N.M.R.Civ.App., provides that the record may be corrected by the district court "either before or after the transcript on appeal is transmitted to the appellate court."
We denied Husband's motion to correct the record because we did not feel compelled to direct the district court to correct it when Husband failed to take advantage of these other methods. This is in line with "the familiar principle of appellate practice that relief which may be afforded by the district court must ordinarily be sought there before application therefor may be made" to the appellate court. 9 Moore's Federal Practice P 210.08(2), at 10-58 (2d ed. 1982). We consider this appeal on the basis of the record as it was originally transmitted to us.
Section 39-1-1, N.M.S.A.1978, states that a final judgment of a district court
shall remain under the control of such (court) for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to...
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