Trinosky v. Johnstone

• Decision Date: 31 March 2011
• Docket Number: No. 27,129.,27,129.
• Citation: Trinosky v. Johnstone, 149 N.M. 605, 252 P.3d 829, 2011 -NMCA- 45, 2011 NMCA 45 (N.M. App. 2011)
• Parties: Shelley TRINOSKY, Petitioner–Appellant,v.Peter JOHNSTONE, as Personal Representative of the estate of Donald L. Trinosky, deceased, Respondent–Appellee.
• Court: Court of Appeals of New Mexico

149 N.M. 605

252 P.3d 829

2011 -NMCA- 045

Shelley TRINOSKY, Petitioner–Appellant,

v.Peter JOHNSTONE, as Personal Representative of the estate of Donald L. Trinosky, deceased, Respondent–Appellee.

No. 27,129.

Court of Appeals of New Mexico.

March 31, 2011.

Kennedy & Han, P.C., Paul J. Kennedy, Darin M. Foster, Albuquerque, NM, for Appellant.Law Office of Peter H. Johnstone, P.C., Peter H. Johnstone, Albuquerque, NM, for Appellee.

OPINION

GARCIA, Judge.

{1} This case raises the issue of whether NMSA 1978, Section 40–4–20(B) (1993) prohibits a district court from exercising its discretion in determining whether to grant a petitioner's motion to voluntarily dismiss a legal separation action pursuant to Rule 1–041(A)(2) NMRA following the death of a party to the action. Section 40–4–20(B) mandates that if a party to a pending legal separation action dies prior to entry of a final decree, the district court “shall conclude” certain proceedings associated with the action “as if both parties had survived.” Rule 1–041(A)(2) allows the district court to exercise its discretion in determining whether to grant a petitioner's motion to voluntarily dismiss an action. We determine that a district court may grant a motion for a voluntary dismissal in a legal separation action and conclude the proceedings consistent with Section 40–4–20(B). As a result, we reverse the district court's denial of Shelley Trinosky's (Wife's) motion to voluntarily dismiss the legal separation action and remand to the district court to exercise its discretion in determining whether to grant Wife's motion to dismiss. Because we reverse on this ground, we do not reach the remaining issues raised by Wife on appeal.

BACKGROUND

{2} Wife filed a petition for a legal separation, division of property, spousal support, and reasonable costs and attorney fees on July 16, 2002. Donald L. Trinosky (Husband) subsequently filed a response to Wife's petition and requested discovery, but Husband did not raise any counter-claims. On April 3, 2003, while the legal separation action was pending and prior to entry of a final decree, Husband died.

{3} Husband executed a Last Will and Testament prior to his death, and a separate probate action is pending that is not the subject of this appeal. On or about June 13, 2003, Husband's son, Kim S. Trinosky (Son), was originally appointed as the personal representative of Husband's estate. Peter H. Johnstone (Appellee) subsequently replaced Son as the personal representative of Husband's estate.

{4} On July 19, 2004, Wife filed a motion to voluntarily dismiss the legal separation action pursuant to Rule 1–041(A)(2). Wife alleged that prior to Husband's death, the parties held themselves out as husband and wife, Wife provided care to Husband until his death, and that they anticipated a reconciliation. Wife further argued that dismissal of the action would be just and proper, would serve the interests of judicial economy, and would save the parties substantial litigation costs. Additionally, Wife contended that since Husband had asserted no counterclaims, continuation of the legal separation action would serve no purpose but to deplete the assets of Husband's estate. In response, Son denied the majority of Wife's factual allegations and argued that “dismissing the action ... would be contrary to the laws of the State of New Mexico which require the current proceeding ... to be concluded as if [Husband] survived.”

{5} At a hearing on September 23, 2004, Wife argued that she filed the petition for legal separation upon the advice of counsel as a result of other family tensions in order to preserve her interest in the marital estate. However, Wife testified that the parties never intended to “divorce,” the parties considered themselves husband and wife throughout the entire marriage until Husband's death, and she did not wish to proceed with the legal separation action. Wife further argued that the district court had discretion to dismiss the action under Rule 1–041(A)(2) and that dismissal would not prejudice Husband. Wife contended that she was not asking the district court to abate the proceedings in violation of Section 40–4–20(B), but that as part of the continuing litigation, Wife was moving to voluntarily dismiss the petition as if Husband were still alive.

{6} In response, Son argued that Section 40–4–20(B) mandated the conclusion of the proceedings and that the district court had no discretion to grant dismissal of the action under Rule 1–041(A)(2). Son also disputed Wife's allegation that the parties intended to reconcile.

{7} Although the district court briefly questioned the parties regarding whether dismissal would prejudice Husband, the district court ultimately denied the motion to dismiss on grounds that Section 40–4–20(B) controlled and mandated continuation of the proceedings.

{8} At a subsequent hearing, the district court considered whether to grant an interlocutory appeal regarding the potential conflict between Section 40–4–20(B) and Rule 1–041(A)(2). Ultimately, the district court issued a memorandum order explaining its denial of Wife's motion to dismiss and determining that the proceedings would continue to trial. The district court recognized that the use of the term “shall” in Section 40–4–20(B) conveyed an express duty on the district court and ultimately concluded that the court “must proceed pursuant to ... Section 40–4–20(B) to finalize the division of the community property pursuant to the requested legal separation.”

{9} Following a trial on the merits, the district court ultimately entered a decree granting a legal separation, awarding spousal support, dividing community property, and awarding attorney fees on August 30, 2006. The court stayed execution of the judgment pending this appeal. Wife subsequently raised seven issues on appeal, including whether the district court abused its discretion by denying her motion for voluntary dismissal pursuant to Rule 1–041(A)(2).

DISCUSSION

{10} Wife argues that the district court abused its discretion in denying her motion to voluntarily dismiss this action pursuant to Rule 1–041(A)(2). Specifically, Wife contends that the court erred by interpreting Section 40–4–20(B) to “override” Rule 1–041(A)(2) and mandate the continuance of the proceedings. Wife further contends that the district court failed to determine whether dismissal of the action would adversely affect the rights of the opposing party pursuant to Rule 1–041(A)(2), and that absent such a determination, the district court abused its discretion by denying the motion to dismiss.

Statutory Interpretation of Section 40–4–20(B)

{11} We first determine whether Section 40–4–20(B) precludes voluntary dismissal under Rule 1–041(A)(2) as a means of concluding the proceedings associated with a legal separation action after the death of one of the parties. “The meaning of language used in a statute is a question of law that we review de novo.” United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010–NMSC–030, ¶ 7, 148 N.M. 426, 237 P.3d 728 (internal quotation marks and citation omitted). “In construing a statute, our charge is to determine and give effect to the Legislature's intent.” Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009–NMSC–013, ¶ 9, 146 N.M. 24, 206 P.3d 135. Pursuant to the Uniform Statute and Rule Construction Act, “[t]he text of a statute or rule is the primary, essential source of its meaning.” NMSA 1978, § 12–2A–19 (1997). As a result, we first examine “the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different [meaning] was intended.” N.M. Indus. Energy Consumers v. N.M. Pub. Reg. Comm'n, 2007–NMSC–053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “[W]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” Truong v. Allstate Ins. Co., 2010–NMSC–009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (internal quotation marks and citation omitted). “Only if an ambiguity exists will we proceed further in our statutory construction analysis.” Marbob Energy Corp., 2009–NMSC–013, ¶ 9, 146 N.M. 24, 206 P.3d 135.

{12} Section 40–4–20(B) provides in pertinent part that, upon the filing and service of a petition for separation, division of property or debt, or spousal support,

if a party to the action dies during the pendency of the action, but prior to the entry of a decree granting ... separation, ... the proceedings for the determination, division and distribution of marital property rights and debts, distribution of spousal or child support or determination of paternity shall not abate. The court shall conclude the proceedings as if both parties had survived.

{13} “By enacting Section 40–4–20(B), the Legislature departed from the common law rule that a pending divorce action abates when a party to the action dies before the entry of a final divorce decree.” Oldham v. Oldham, 2011–NMSC–007, ¶ 13, 149 N.M. 215, 247 P.3d 736. Under the common law rule of abatement, if a party to a dissolution action died before the entry of a final decree, the proceedings terminated as a matter of law and the court was divested of jurisdiction over the matter, including jurisdiction over any property rights. Karpien v. Karpien, 2009–NMCA–043, ¶ 6, 146 N.M. 188, 207 P.3d 1165. Similarly, under the common law rule of abatement, if a party to a legal separation action died prior to entry of a final decree, the court was divested of jurisdiction over the matter. See, e.g., Cregan v. Clark, 658 S.W.2d 924, 927 (Mo.App.1983) (reasoning that either an action for dissolution of marriage or legal separation abates upon the death of one of the parties prior to final judgment).

{14} Section 40–4–20(B) departs from the common law rule of abatement by expressly providing that “if a party to [a divorce or separation] action dies during the pendency of the action, ... the...