Opinion
NO. A-1-CA-35569
12-06-2018
ZOE NAUMAN Petitioner-Appellee, v. DANIEL CHRISTOPHER PETER MATHER, Respondent-Appellant.
Richard S. Lees, P.A. Richard S. Lees Santa Fe, NM for Appellee Law Office of Jane B. Yohalem Jane B. Yohalem Santa Fe, NM for Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Matthew J. Wilson, District Judge Richard S. Lees, P.A.
Richard S. Lees
Santa Fe, NM for Appellee Law Office of Jane B. Yohalem
Jane B. Yohalem
Santa Fe, NM for Appellant
MEMORANDUM OPINION
{1} Daniel Christopher Peter Mather (Husband) appeals the district court's denial of his motion to set aside the district court's entry of default judgment in favor of Zoe Nauman (Wife). We affirm.
I. BACKGROUND
{2} On November 17, 2014, Wife petitioned to dissolve her marriage with Husband. In her petition, Wife cited "differences in temperament and outlook," along with "a state of incompatibility" as the bases for dissolution of marriage, then alleged that the marital residence (the Santa Fe residence), along with other unspecified items of property, were her separate property. Regarding the Santa Fe residence, Wife additionally maintained that Husband "refuse [d] to vacate" the premises. In her petition, Wife further sought division of community assets and liabilities, allocation of responsibility for outstanding community obligations, and that the district court "[i]dentify and restore [Wife's] separate property." {3} Husband was served with notice of Wife's petition on November 23, 2014. Husband did not, however, answer Wife's petition, nor did he file any pleading, motion, or other document responsive to the petition in district court. The district court mailed "numerous pleadings" to Husband's home, including notices of hearings and a mediation order. Nonetheless, Husband failed to respond, or to appear for or participate in any proceeding associated with the pending cause of action. Upon Wife's motion, the clerk of the district court certified Husband's default on January 26, 2015. {4} Nearly two months later, on March 17, 2015, Wife filed an application for entry of default judgment against Husband, wherein she submitted a detailed proposal dividing community property, assets and liabilities. Wife claimed that the Santa Fe residence and certain commercial property in California was her separate property. In thorough detail, Wife proposed division of other items of community property, suggesting among many other things that Husband be provided with three vehicles, computers, and various other items of personal property, and herself with one vehicle and personal items identified as both separate and community property. Wife additionally proposed division of various community liabilities, including a two-million-dollar liability owed to Wife's father for which Wife conceded sole responsibility. She additionally stated her willingness to pay Husband a "lump sum amount of $20,000" as "transitional spousal support" premised upon a portion of the amount being used by Husband to attain a home and to facilitate him moving into it from the Santa Fe residence. {5} The district court notified Husband by mail of the hearing on Wife's application for entry of default judgment. Again however, Husband did not respond or appear at the hearing. On May 5, 2015, the district court entered a default judgment against Husband and, in its ensuing order, adopted Wife's proposed divisions of property, assets and liabilities, stating with regard to the largest community liability that Wife "shall be solely responsible for the debt to [her father]." {6} Over three months later, on August 25, 2015, Husband filed a motion to set aside the default judgment pursuant to Rules 1-060(B)(1), (4), and (6) NMRA. Husband contended that he had not been properly served, which he argued violated his constitutional right to due process which rendered the judgment against him void and that his not having responded to or participated in the lawsuit was a product of excusable neglect based upon what he contended were ongoing settlement negotiations and personal medical issues. As well, in his reply to Wife's response to his motion and not in the context of a due process claim, Husband argued that before it could adopt Wife's proposals regarding the division of community assets and liabilities, the district court was first required to hold an evidentiary hearing because what Husband identified to be the "damages" sought by Wife were "unliquidated" in nature. The district court denied Husband's motion, finding he was properly served and that he failed to show excusable neglect. Husband filed a motion to reconsider, which too was denied.
II. DISCUSSION
{7} On appeal, Husband argues: (1) the district court's entry of default judgment, including the manner in which it determined ownership and division of property, was inconsistent with due process of law and therefore void under Rule 1-060(B)(4); and (2) the district court did not properly consider the "exceptional circumstances" in this case under Rule 1-060(B)(6). We address each argument in turn.
A. Rule 1-060(B)(4)
{8} Husband first argues that the district court erred in denying his Rule 1-060(B)(4) motion because the district court violated his due process rights by "adopt[ing] Wife's proposed [division of property, assets, and liabilities] without taking or considering any evidence whatsoever." He contends the underlying default judgment is therefore void under Rule 1-060(B)(4). {9} We do not review the district court's denial of a Rule 1-060(B)(4) motion for abuse of discretion. See Classen v. Classen, 1995-NMCA-022, ¶ 10, 119 N.M. 582, 893 P.2d 478 (explaining that "[t]he standard of review on appeal from the denial of a [Rule] 1-060(B)(4) motion is not, however, whether there has been an abuse of discretion" (internal quotation marks omitted)). Rather, "[i]f the underlying judgment is void, it must be set aside." Id. "A judgment is void only if the court rendering it lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process of law." Id. (internal quotation marks and citation omitted). {10} Regarding Husband's claim that his due process rights were violated by evidence not being taken prior to the district court's adoption of Wife's proposed division of assets and liabilities, we first note that this is not the same due process argument Husband made in district court. There, his motion's only reference to a due process violation related to the effectuation—or what he then contended to be the lack thereof—of service. Specifically, Husband stated that "[s]ervice of process did not meet the requirements of Rule 1-004, NMRA . . . , and therefore violated [Husband's] constitutional right to due process." "To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court." Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks and citation omitted). "The primary purposes for the preservation rule are: (1) to specifically alert the district court to a claim of error so that any mistake can be corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error and to show why the court should rule against that claim, and (3) to create a record sufficient to allow this Court to make an informed decision regarding the contested issue." Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791. Husband did not preserve his current, far more expansive, argument regarding the due process violation he contends resulted from the district court's default judgment. We therefore do not address it here. {11} As to Husband's preserved due process argument, we note that he no longer challenges the district court's finding that Husband was served with notice of Wife's petition on November 23, 2014. There is therefore no dispute on appeal that the district court acted in a manner consistent with due process of law insofar as service of process is concerned. See Classen, 1995-NMCA-022, ¶ 13 (holding that "[i]f service did not meet due process standards, the judgment is voidable at any time under [Rule] 1-060(B)(4)"). Accordingly, we conclude the district court's judgment in this regard neither violated due process nor is void.
B. Rule 1-060(B)(6)
{12} Husband next argues that the district court abused its discretion in declining to relieve him from final judgment based on "exceptional circumstances" under Rule 1-060(B)(6). Rule 1-060(B)(6) provides that the district court may relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment[.]" "We have stated that Rule 1-060(B)(6) is designed to apply only to exceptional circumstances, which, in the sound discretion of the trial judge, require an exercise of a reservoir of equitable power to assure that justice is done." Martinez v. Friede, 2004-NMSC-006, ¶ 20, 135 N.M. 171, 86 P.3d 596 (internal quotation marks and citation omitted), superseded by rule on other grounds as stated in State v. Moreland, 2008-NMSC-031, ¶ 11, 144 N.M. 192, 185 P.3d 363. {13} Although Husband cited Rule 1-060(B)(6) as a ground for setting aside the default judgment in his August 2015 motion, he made no specific argument based on "exceptional circumstances." Rather, Husband's argument in the district court regarding Rule 1-060(B) was confined to excusable neglect under Rule 1-060(B)(1) and improper service of process under Rule 1-060(B)(4). Indeed, the district court's order denying his motion to set aside the default judgment makes no mention of any "exceptional circumstances" argument. The district court instead ruled that Husband was properly served and had failed to demonstrate excusable neglect. We thus conclude Husband did not adequately preserve his Rule 1-060(B)(6) argument. See Rule 12-321(A) NMRA ("To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked."); see also Kilgore v. Fuji Heavy Indus. Ltd., 2010-NMSC-040, ¶ 26, 148 N.M. 561, 240 P.3d 648 (explaining that "[a] ruling or decision is fairly invoked if a party's objection or motion is made with sufficient specificity to alert the mind of the trial court to the claimed error" (internal quotation marks and citation omitted)). Because no proof of exceptional circumstances was submitted, or the argument even made, by Husband in his Rule1-060(B) motion in district court, we conclude it not to have been properly preserved.
III. CONCLUSION
{14} We conclude that Husband did not preserve either argument for appeal. We therefore affirm.
{15} IT IS SO ORDERED.
/s/ _________
J. MILES HANISEE, Judge
WE CONCUR:
/s/ _________
MICHAEL E. VIGIL, Judge /s/ _________
DANIEL J. GALLEGOS, Judge