Martinez v. Martinez ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 JOHNNY J. MARTINEZ,
3 Petitioner-Appellant,
4 v. NO. 31,863
5 DEBORAH E. MARTINEZ,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
8 John F. Davis, District Judge
9 Trujillo Dodd, Torres, O’Brien, Sanchez, L.L.C.
10 Donna Trujillo Dodd
11 Albuquerque, NM
12 for Appellant
13 Rozan Cruz & Associates
14 Rozan Cruz
15 Corrales, NM
16 for Appellee
17 MEMORANDUM OPINION
18 VIGIL, Judge.
1 Petitioner appeals from the district court’s order dissolving the parties’
2 marriage, challenging the district court’s inclusion of Petitioner’s veterans’ disability
3 benefits as income when it entered the interim order allocating income and expenses
4 between the parties. We issued a notice of proposed summary disposition, proposing
5 to affirm. Petitioner has filed a response to our notice. We have considered
6 Petitioner’s response and remain unpersuaded that he has established reversible error.
7 We affirm.
8 On appeal, Petitioner contends that because his veterans’ disability benefits
9 cannot be characterized as community property, the district court erred by including
10 those benefits as income for purposes of dividing income between the parties in the
11 interim order allocating income and expenses, pending the divorce. Our notice
12 recognized that our review of the district court’s exercise of its power to enter an
13 interim allocation order is for abuse of discretion. See Bursum v. Bursum,
14 2004-NMCA-133, ¶ 29, 136 N.M. 584, 102 P.3d 651 (reviewing for abuse of
15 discretion the district court’s decision to require the husband to pay the wife $50,000
16 to equalize the litigation costs as part of the district court’s power to enter an interim
17 order to allocate expenses); see also NMSA 1978, § 40-4-7(A) (1997) (stating that
18 during the pendency of divorce proceedings, the district court may enter an order “to
19 provide for the support of either party . . . as in its discretion may seem just and
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1 proper”). We further recognized that Rule 1-122(A) NMRA permits a district court,
2 in its discretion, to divide separate income as part of its interim allocation order, if it
3 deems such a division appropriate under the circumstances, even if veterans’ disability
4 benefits are not considered community property in New Mexico and even where the
5 district court ultimately determined that those benefits were Petitioner’s separate
6 property. [RP 85]
7 In response to our notice, Petitioner recognizes that Rule 1-122(A) permits the
8 district court to divide separate income and expenses, if appropriate, but contends that
9 the district court did not indicate that the veterans’ disability benefits were separate
10 income being considered for interim purposes, and thus grouped it with all the money
11 without a finding that it was appropriate and wrongfully treated the benefits as
12 community income. [MIO 4, 7] As our notice observed, however, there is support in
13 the record for the district court’s allocation of income. On appeal, our job is to resolve
14 all disputes of facts in favor of the successful party and indulge all reasonable
15 inferences in support of the prevailing party. See Las Cruces Prof’l Fire Fighters v.
16 City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. The record
17 shows that during the pendency of the proceedings, Petitioner had a net spendable
18 income of $4,419 per month and that Respondent had a net spendable income of
19 negative $24 per month. [RP 44-46] It appears that to equalize the expenses during
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1 the pendency of the divorce proceeding, the district court split the parties’ combined
2 net spendable income in half, requiring Petitioner to temporarily transfer $2,221.50
3 a month to Respondent. [RP 46] See Rule 1-122(A) (“Absent exceptional
4 circumstances, during the pendency of a dissolution of marriage or Section 40-4-3
5 NMSA 1978 proceeding, community income and expenses shall be equally divided
6 between the parties. Upon motion, separate income and expenses may also be divided
7 if appropriate.” (emphasis added)). We are not persuaded that the district court
8 needed to make a finding that the division of the veterans’ disability benefits was
9 appropriate in order for us to affirm, particularly where we find clear support in the
10 record for the district court’s division.
11 For these reasons and those stated in our notice, we affirm.
12 IT IS SO ORDERED.
13 __________________________________
14 MICHAEL E. VIGIL, Judge
15 WE CONCUR:
16 _________________________________
17 TIMOTHY L. GARCIA, Judge
18 _________________________________
19 J. MILES HANISEE, Judge
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