Oberman v. Oberman, 9118

• Decision Date: 19 April 1971
• Docket Number: No. 9118,9118
• Citation: 82 N.M. 472,1971 NMSC 46,483 P.2d 1312
• Parties: Leonard OBERMAN, Plaintiff-Appellee, v. Rachel OBERMAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1312

483 P.2d 1312

82 N.M. 472

Leonard OBERMAN, Plaintiff-Appellee, v. Rachel OBERMAN, Defendant-Appellant.

No. 9118.

Supreme Court of New Mexico.

April 19, 1971.

[82 NM 472] Menig, Sager, Parker & Curan, John Henry Lewis, Albuquerque, for defendant-appellant.

Nordhaus & Moses, Thomas J. Dunn, Albuquerque, for plaintiff-appellee.

OPINION

STEPHENSON, Justice.

Defendant-appellant (Wife) moved, pursuant to Rule 60(b) of the Rules of Civil Procedure (§ 21--1--1(60)(b), N.M.S.A., 1953), to set aside a paragraph of a certain stipulation which she had entered into with plaintiff-appellee (Husband) and which had subsequently been incorporated into a final decree of divorce. From a judgment denying her motion, Wife appeals.

During the pendency of divorce proceedings between the parties, on December 20, 1967, they entered into a stipulation settling their differences. The stipulation provided, inter alia, that Husband was to transfer to Wife 12,000 shares of the common capital stock of AMREP with an option to pay Wife $60,000 within a stated period and retain the stock. AMREP was then trading on the American Exchange at $12.25 per share.

The reasons for the difference in the option price and the market price were a certain restriction on alienation and the fact that the stock was pledged to a New York bank under an arrangement whereby it would not be freed for a year.

On the same day, a final decree was entered granting Husband a divorce, finding the stipulation to be fair and equitable, approving and confirming it, and incorporating it into the decree.

About one year later, on December 20, 1968, Wife filed her Rule 60(b) motion. It speaks in general terms of fraud and misrepresentation on Husband's part and his failure to divulge information. Wife further alleged that the offending paragraph was entered into by mistake, though whose mistake and whether of law or of fact is not specified. The theory here is that there was a mutual mistake of law and fact.

Following a hearing, the trial court made findings of fact. In its finding numbered eight, it found that Husband's representations were true and accurate in light of his knowledge at the time of the stipulation; that an agreement effectively restricted disposition of the stock; that he was without knowledge of an upcoming secondary offering of the stock; and that he was without knowledge until some months later that as a result of a new loan arrangement the pledge would be released sooner than...