Ortiz v. Gonzales

• Decision Date: 12 September 1958
• Docket Number: No. 6384,6384
• Citation: 64 N.M. 445,329 P.2d 1027,1958 NMSC 109
• Parties: Cruz H. ORTIZ, Plaintiff-Appellee, v. Eva GONZALES, a/k/a Mrs. Salomon Gonzales, Defendant, and Fabiola Ortiz de Moreno, Intervenor-Appellant.
• Court: New Mexico Supreme Court

Page 1027

329 P.2d 1027

64 N.M. 445

Cruz H. ORTIZ, Plaintiff-Appellee, v. Eva GONZALES, a/k/a Mrs. Salomon Gonzales, Defendant, and Fabiola Ortiz de Moreno, Intervenor-Appellant.

No. 6384.

Supreme Court of New Mexico.

Sept. 12, 1958.

Donald A. Martinez, Las Vegas, for appellant.

Schall & Sceresse, Albuquerque, by Alexander F. Sceresse, Albuquerque, for appellee.

McGHEE, Justice.

The controversy on appeal is between intervenor-appellant, Fabiola Ortiz de Moreno, and plaintiff-appellee, Cruz H. Ortiz. Intervenor appeals from a judgment against the defendant below, Eva Gonzales, in the Bernalillo County Court awarding the plaintiff the sum of $1,069.30 as the balance due on the sale of an undivided property interest in a hotel by John G. Ortiz, the former husband of the intervenor and of the plaintiff in that order, and as awarded to the plaintiff in her divorce proceedings against John G. Ortiz. The facts forming the basis of this appeal are substantially as follows:

Intervenor married John G. Ortiz in 1924 and filed suit for a divorce in the San Miguel County District Court in 1948. A decree was rendered January 12, 1949, and filed February 2, 1949, dissolving the marriage but making no division of the community property, the court retaining jurisdiction

'to give the parties hereto an opportunity to settle between themselves their community property rights, provided that if the parties hereto are unable to settle their community property rights by February 7, 1949, the Court will, on said day, proceed to hear further evidence concerning the community property of the parties hereto and make such further orders as may be proper the premises considered.'

During their marriage intervenor and her former husband acquired certain community property, including an undivided one-half interest in the Plaza Hotel in Las Vegas, New Mexico, the other one-half being owned by Salomon Gonzales, now deceased, and his wife, Eva Gonzales, defendant below. Subsequent to the divorce proceeding, in September 1949, intervenor and John G. Ortiz, as parties of the first part, but not as husband and wife, the divorce having been granted, entered into an agreement with Salomon Gonzales and his wife, Eva Gonzales, as parties of the second part. By the terms of this agreement, the Ortiz parties agreed to convey to the Gonzales parties their interest in the hotel and in return the Gonzales parties agreed to assume and pay off certain indebtedness against the property and further, that

'* * * the parties hereto shall endeavor to sell said property known as the Plaza Hotel * * * together with the furniture and equipment therein, for the sum of not less than $40,000.'

In the event of a sale the Gonzales parties were to pay one fourth of the proceeds less deductions including one half of the monies paid or to be paid by them on the Ortiz note and mortgage to John G. Ortiz and likewise one fourth of the proceeds less similar deductions to the intervenor, Fabiola Ortiz de Moreno, then Fabiola Ortiz.

On August 9, 1949, however, prior to the execution of this agreement, John G. Ortiz married the plaintiff, Cruz H. Ortiz. He deserted her in November 1949, after he had received the sum of $1,000 cash from her sole and separate estate and had pledged her credit in the sum of $3,000 for his exclusive benefit, leaving her to bear the expenses of the birth of a child born of the marriage in May 1950 and to support it thereafter.

On August 11, 1950 plaintiff filed suit for divorce from John G. Ortiz in the Bernalillo County District Court and a decree of divorce was entered November 22, 1950, which decree provided, in part:

'That Salomon Gonzales and Mrs. Salomon Gonzales pay to the plaintiff the sum of Twelve Hundred ($1,200) Dollars, or whatever sum is due and owing the defendant, to the plaintiff, to apply upon any award which may hereafter be made to the plaintiff out of the sole and separate estate of the defendant, in partial repayment of the advances of money made by plaintiff to the defendant and for expenses sustained by the plaintiff, and that upon payment to the plaintiff of said amount by said Salomon Gonzales and Mrs. Salomon Gonzales the latter parties shall be forever discharged of any liability to the defendant for such indebtedness.' (Emphasis added.)

It is noted that no mention of any other findings of this court was made in the briefs nor was there a copy of the decree included in the transcript. Further, the trial court found in finding No. 6 that Salomon and Eva Gonzales consented to the entry of this decree with respect to the debts sued on in the action underlying this appeal. Although intervenor-appellant has repeatedly asserted they were not parties to this proceeding, no evidence appears in the transcript one way or another, so we accept the finding they were present in court and consented to the judgment which was rendered. Thus, the opinion rests on the assumption that the defendant below participated in the Bernalillo County divorce proceeding.

Later, on May 22, 1951, judgment in the nature of a final decree was entered by the San Miguel County District Court in intervenor's divorce proceeding awarding to her all of the community property belonging to her and John G. Ortiz, less attorney's fees, as permanent alimony. An appearance was made for the defendant by his attorney of record. The material findings of that court follow:

'4. That this Court heretofore rendered a Decree of Divorce on the 12th day of January, 1949, and in said Decree retained jurisdiction of this cause for the purpose of making such provisions for the support of the minor children as circumstances may warrant, and to give the parties hereto an opportunity to settle between themselves their community property rights.

'5. That the parties hereto have been unable and have not settled their community property rights.'

It is noted that no copy of the first original decree in this proceeding, however, is to be found in the transcript, but only an excerpt therefrom. Hence, it must be assumed that the sole basis for the retention of jurisdiction is set forth in the excerpt, as above stated.

Apparently nothing further was ever done with respect to the agreement concerning the Plaza Hotel or the alleged debt owed by the Gonzales parties to John G. Ortiz, until September of 1955 when plaintiff filed this suit in Bernalillo County against the defendant, Eva Gonzales, Salomon Gonzales being then deceased, alleging that Eva Gonzales was indebted to her in the amount of $1,200 by reason of the provision contained in her divorce decree, and had failed and neglected to pay the same.

The defendant, by her answer, denied that she was indebted to plaintiff in any sum whatsoever, setting forth the provisions of the Ortiz-Gonzales agreement, and alleging that no purchaser had been found for the hotel and that by reason of the final decree in the San Miguel County divorce proceedings she was indebted to intervenor in the sum of $1,200 upon the sale of the Plaza Hotel. (Apparently, as asserted by plaintiff-appellee, these defenses were abandoned in the trial court, the defendant, by her attorney, orally agreeing to pay such sum as the court found due to such party as the court determined.)

On September 17, 1956 intervenor filed a motion to intervene on the grounds that the debt, if any, owed by the defendant to John G. Ortiz and awarded to plaintiff in her divorce proceedings, was community property awarded to intervenor by the final decree in the San Miguel proceedings. The motion was granted and at a hearing attended by the attorneys in the case the matter was submitted to the trial court on the pleadings including the September agreement, the final decree in the first divorce proceedings, and excerpts from the first decree in the first divorce proceedings and the decree in the second divorce proceedings. Plaintiff and intervenor submitted requested findings of fact and conclusions of law and the trial court entered its findings and conclusions as requested by plaintiff, and thereafter on November 7, 1957, judgment was entered in favor of plaintiff and against the defendant for the sum of $1,069.30.

Intervenor first contends the lower court erred in sustaining the judgment of the Bernalillo County District Court as against the later final decree of the San Miguel County District Court on the theory that as between courts of concurrent jurisdiction, the court first acquiring jurisdiction of a subject matter retains it to the end, with certain exceptions.

As a statement of a general proposition of law, intervenor is correct and this court has so decided. Greathouse v. Greathouse 64 N.M. 21, 322 P.2d 1075. See also, State ex rel. Parsons Mining Co. v. McClure, 17 N.M. 694, 133 P. 1063, 47 L.R.A.,N.S., 744, Secs. 22-7-3, 22-7-6, N.M.S.A., 1953.

But we believe the facts of this case take it out of the operation of the general doctrine of custodia legis notwithstanding they do not bring the case within the exceptions noted in the Parsons case.

In...