Zolte v. Lieberman ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 SABINA ZOLTE,
8 Petitioner-Appellee,
9 v. NO. 30,883
10 ARNOLD LIEBERMAN,
11 Respondent-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Mary L. Marlowe, District Judge
14 Sabina Zolte
15 Buffalo, NY
16 Pro Se Appellee
17 Law Office of Roger L. Prucino
18 Roger L. Prucino
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 Respondent appeals from the district court’s order that denied Respondent’s
24 motion to enforce an agreement and vacate the foreign judgment or, in the alternative,
1 the order denied Respondent relief from the foreign judgment and domesticated the
2 judgment in New Mexico. We issued a notice of proposed summary disposition,
3 proposing to affirm. Respondent has responded to our notice with a memorandum in
4 opposition. We have considered Respondent’s response and remain unpersuaded that
5 the district court erred. Accordingly, we affirm.
6 Respondent has raised three main issues on appeal. First, Respondent asks
7 whether there was an agreement between the parties that modified Respondent’s
8 obligation to pay Petitioner alimony. [DS 6] Second, Respondent asks whether
9 Petitioner’s conduct precludes the enforcement of his alimony obligation under the
10 doctrine of equitable estoppel, the doctrine of waiver by estoppel, and the doctrine of
11 laches. [DS 6-7] Third and lastly, Respondent asks whether the district court erred
12 by enforcing the 1978 judgment (divorce decree) under Rule 1-060(B) NMRA.
13 [DS 7-8]
14 In response to our notice, Respondent challenges the district court’s findings
15 that Petitioner could validly wait until it became financially reasonable to enforce the
16 original judgment and that her inaction did not mislead Respondent into believing that
17 she had acquiesced in the nonpayment of his alimony obligation. [MIO 1-6] Under
18 the same general arguments and emphasis about how the parties’ past dealings
19 indicate that Petitioner acquiesced in the nonpayment of alimony, Respondent argues
20 that Petitioner is precluded from seeking past alimony under the doctrines of equitable
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1 estoppel or waiver and laches. [MIO 6-11] It appears Respondent has abandoned his
2 argument under Rule 1-060(B) NMRA. See State v. Johnson, 107 N.M. 356, 358, 758
3 P.2d 306, 308 (Ct. App. 1988) (stating that when a case is decided on the summary
4 calendar, an issue is deemed abandoned where a party fails to respond to the proposed
5 disposition of the issue).
6 Initially, we note that we continue to agree with the district court that the parties
7 did not reach an agreement that would absolve Respondent of his alimony obligation.
8 Respondent argues that the correspondence between the parties does not constitute a
9 rejection of Respondent’s offer. The correspondence certainly does not constitute an
10 acceptance; it constitutes a rejection. Petitioner’s first letter did not expressly accept
11 the offer; the second expressed doubt about the offer and requested the alimony
12 Respondent owed her for the few preceding months; and the third letter from
13 Respondent to Petitioner acknowledged that there was no agreement between the
14 parties and asked Petitioner to reconsider. [RP 54-61, 83]
15 We are not persuaded that Petitioner’s inaction in collecting alimony payments
16 for the years that followed their disagreement about future alimony payments and her
17 demand for arrears could reasonably mislead him into believing that she waived her
18 right to alimony. We defer to the district court’s finding that Petitioner credibly and
19 reasonably waited for alimony to accrue to assert her right to arrears, particularly
20 given Respondent’s admitted pattern of late payments and Petitioner’s continual
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1 insistence that Respondent pay on his obligation. [MIO 4-6] See Buckingham v.
2 Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict
3 in the testimony, we defer to the trier of fact.”); Maestas v. Martinez, 107 N.M. 91,
4 93, 752 P.2d 1107, 1109 (Ct. App. 1988) (stating that a reviewing court may not
5 assess the weight of evidence except “[w]here an issue to be determined rests upon the
6 interpretation of documentary evidence”). We continue to believe that Respondent
7 makes no suggestion that any other event or conduct from Petitioner would support
8 an honest and reasonable belief that Petitioner waived alimony. Petitioner did not, for
9 instance, take a portion of Respondent’s social security payments in lieu of alimony
10 payments, as Respondent suggests the parties’ agreement would reflect. We note that
11 Respondent’s arguments do not refer us to case law that supports his position over the
12 concerns and case law set forth in our notice.
13 For these reasons, we are not persuaded that there existed an implied agreement
14 or that Petitioner’s conduct could have reasonably induced Respondent to stop making
15 alimony payments and refrain seeking to modify alimony in the New York court or
16 that Respondent lacked knowledge or notice that Petitioner would assert her right to
17 alimony. See DeArmond v. Halliburton Energy Servs., Inc., 2003-NMCA-148, ¶ 11,
18 134 N.M. 630, 81 P.3d 573 (“A party’s acceptance of a written offer may be express
19 or implied by conduct.”); Sisneroz v. Polanco, 1999-NMCA-039, ¶¶ 11-18, 126 N.M.
20 779, 975 P.2d 392 (holding that the mother’s inaction in establishing paternity and
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1 pursuing child support for eleven years did not constitute an unequivocal act of waiver
2 or acquiescence); Cain v. Cain, 91 N.M. 423, 424-25, 575 P.2d 607, 608-09 (1978)
3 (reversing a ruling that laches applied to an ex-husband’s claim that he thought his
4 alimony obligation lasted only a year where his ex-wife failed to enforce alimony
5 payments for eighteen years, holding that there was no substantial evidence of a real
6 neglect and an unreasonable delay which prejudiced the ex-husband). Therefore, we
7 affirm the district court’s rejection of Respondent’s reliance on equitable principles
8 to forgive his alimony obligations.
9 For the reasons stated in this opinion and in our notice, we affirm.
10 IT IS SO ORDERED.
11 _________________________
12 MICHAEL E. VIGIL, Judge
13 WE CONCUR:
14 _________________________________
15 CELIA FOY CASTILLO, Chief Judge
16 _________________________________
17 MICHAEL D. BUSTAMANTE, Judge
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