Parks v. Parks, 11531

CourtSupreme Court of New Mexico
Citation91 N.M. 369,574 P.2d 588,1978 NMSC 8
Docket NumberNo. 11531,11531
PartiesJane M. PARKS, Plaintiff-Appellee, v. George E. PARKS, Defendant-Appellant.
Decision Date07 February 1978

Page 588

574 P.2d 588
91 N.M. 369
Jane M. PARKS, Plaintiff-Appellee,
v.
George E. PARKS, Defendant-Appellant.
No. 11531.
Supreme Court of New Mexico.
Feb. 7, 1978.

Page 589

[91 NM 370] Bruce A. Larsen, Hobbs, for defendant-appellant.

Turpen, Currier, Everett & Jones, Charles C. Currier, Albuquerque, for plaintiff-appellee.

OPINION

EASLEY, Justice.

Jane M. Parks, plaintiff-appellee (Mrs. Parks) and George D. Parks, defendant-appellant (Parks) were divorced August 23, 1972. They had stipulated as to the division of their property and the court approved the agreement in the decree. Over three and one-half years later Mrs. Parks moved to modify the decree to obtain a greater amount of Parks' military pension. The trial court held for Mrs. Parks, and Parks appeals. We reverse.

Issues Presented

The two issues presented for our consideration are (1) whether it was proper for the trial court to entertain a motion under N.M.R.Civ.P. 60(b) (§ 21-1-1(60)(b), N.M.S.A.1953) where over three and one-half years had passed since entry of final judgment in the case, and (2) whether the trial court erred in holding as a matter of law that the stipulation approved by the judgment was ambiguous on its face.

Material Facts

Parks had made payments of $175 per month to Mrs. Parks as property settlement installments since the final decree was entered. On May 18, 1976, Mrs. Parks filed a motion seeking to obtain payments equivalent to one-half of the amount that Parks was then receiving as a military pension. The motion alleged that the pension is community property, that therefore Mrs. Parks is entitled to one-half of the amount Parks now receives, that the amount of the pension had been substantially increased since the divorce and that Parks had not increased his monthly remittance.

Parks claims that the property settlement agreement approved by the court can not now be reopened and that it plainly states that Mrs. Parks is to receive only $175 per month. Mrs. Parks contends that the wording in the stipulation is ambiguous and that it was intended that she receive one-half of whatever amount of money Parks receives as a pension.

The words in question read as follows:

(D)efendant will deposit to plaintiff's bank account the sum of $175 per month out of his air force retirement check of the defendant, said retirement check being considered community property and plaintiff is, therefore, entitled to one-half thereof, and as long as defendant makes such $175 monthly deposits, plaintiff will ask for no more.

The trial court held no evidentiary hearing to determine the intentions of the parties regarding the disposition of the military pension. Furthermore, there is no evidence in the record, except Mrs. Parks' motion and statements of the attorneys, that there was an increase in the amount of the pension received by Parks and no evidence as to the reason that the amount was increased. Also there is no evidence in the record as to what the amount of Parks' retirement check was at the time the judgment was entered. Nor is there any evidence from which it can be determined whether the parties bargained for Mrs. Parks to have less than one-half of the pension in exchange for a greater amount of the other community property.

The trial court held that the language in the stipulation quoted above was ambiguous as a matter of law and declared that it was intended that Parks pay a full one-half of his retirement check to Mrs. Parks. The court held that there was no showing that Mrs. Parks clearly relinquished her right to a one-half interest in Parks' retirement pay.

Page 590

[91 NM 371] Relief Under Rule 60(b)

The judgment entered on August 23, 1972, was a final nonmodifiable judgment of property settlement, not an order for child support, alimony, or custody, which might be subject to later modification. Therefore, the only way to modify or set aside such a judgment would be by appeal or by filing a motion for relief under N.M.R.Civ.P. 60(b).

The lower court apparently felt that, since the time for appeal had long since expired, reopening the case after three and one-half years under Rule 60(b) was proper. No testimony having been submitted by either party, the court's decision on the motion was based only on briefs filed by counsel and oral argument. The record before us contains only the pleadings and the briefs filed.

Rule 60(b)(1) allows for relief from a final judgment for "mistake," 60(b) (3) for "fraud (or) misrepresentation," and 60(b)(6) for "any other reason justifying relief from the operation of the judgment." (Emphasis added.) The rule further provides that for reasons (1) (mistake) or (3) (fraud or misrepresentation), "the motion shall...

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33 cases
  • Cvitanovich-dubie v. Dubie, 28928.
    • United States
    • Court of Appeals of Hawai'i
    • April 14, 2010
    ...based on fraud and are therefore barred by the one-year statute of limitations pursuant to Rule 60(b)(3) of the [HFCR]. Parks v. Parks, [91 N.M. 369] 574 P.2d 588 (N.M.1978); Calasa v. Greenwell, 2 Haw.App. 395, 633 P.2d 553 (1981).(Formatting altered; record references omitted.)II.A. Famil......
  • Cvitanovich-Dubie v. Dubie No. 28928 (Haw. App. 4/12/2010), 28928.
    • United States
    • Court of Appeals of Hawai'i
    • April 12, 2010
    ...based on fraud and are therefore barred by the one-year statute of limitations pursuant to Rule 60(b)(3) of the [HFCR]. Parks v. Parks, 574 P.2d 588 (N.M. 1978); Calasa v. Greenwell, 2 Haw. App. 395, 633 P.2d 553 (Formatting altered; record references omitted.) II. A. Family Court Decisions......
  • Allred v. New Mex. Dep't of Transp., 34,226
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 22, 2016
    ...When a judgment is "clear and unambiguous ... [i]t must stand and be enforced as it speaks." Parks v. Parks , 1978–NMSC–008, ¶ 20, 91 N.M. 369, 574 P.2d 588. However, if "the meaning is obscure, doubtful, or ambiguous, the judgment, pleadings, and entire record may always be resorted to for......
  • Jemez Properties, Inc. v. Lucero, 3515
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 27, 1979
    ..."the motion shall be made * * * not more than one (1) year after the judgment (or) order * * * was entered or taken." Parks v. Parks, 91 N.M. 369, 574 P.2d 588 (1978). In the instant case, more than a year elapsed between the entry of the challenged order and the Rule 60(b) motion; and thus......
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