Madrid v. Madrid , 101 N.M. 504 ( 1984 )

OPINION

NEAL, Judge.

This case concerns the division of property after a divorce. We discuss the value of pension benefits, disposition of the house, and the effect of the wife’s untimely filing of her cross-appeal.

Manuel Madrid (husband) began working for Kennecott Copper Corporation in 1939. He and Anne Madrid (wife) were married in 1950. He retired in 1971 and the parties were divorced in 1980. The husband died in 1982; the appeal is brought by his personal representative (estate).

The court awarded the wife the marital residence and lot, valued at $30,000; household furnishings, and her social security benefits. The court awarded the husband a car and a truck, his social security benefits, and his Kennecott pension benefits. The property division was appealed to the Supreme Court which, in an unpublished decision, remanded the case to the district court for a determination of the discounted present value of the pension. See Copeland v. Copeland, 91 N.M. 409, 575 P.2d 99 (1978). See also Leckie v. Leckie, 101 N.M. 254, 680 P.2d 635 (Ct.App.1984).

The major issue in this appeal concerns an issue not addressed in the Supreme Court decision: At what point is the pension valued?

1. Value of the pension.

The parties stipulated that on February 4, 1980, the date of the divorce, the husband was receiving $215.23 per month in pension benefits. Negotiations between the company and the union resulted in increased benefits for retired employees, and in January 1981 the husband began receiving $245.36 per month. In January 1982, the husband began receiving $275.49 per month.

The decision of the district court, on remand, was filed November 14, 1982. In that decision, the district court valued the pension based on the monthly benefit of $275.49. The estate contends that the pension should be valued using the monthly benefit of $215.23, which the husband was receiving at the time of the divorce. We agree.

In holding that the pension must be valued at the time of the divorce we rely on Copeland v. Copeland and Hurley v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980). Copeland states:

The cases are in agreement that at the time of the divorce the court must place a value on the pension rights and include it in the entire assets, then make a distribution of the assets equitably.

Hurley v. Hurley concerned the value of a doctor’s practice, and held that “the value of the practice as a business at the time of dissolution of the community is community property.” (Emphasis added.) The rule concerning the valuation of community property in Copeland and Hurley is a corollary of the general rule that divorce dissolves the community. See 15 Am.Jur.2d Community Property § 101 (1976).

The increases, coming after the date of the divorce, are the husband’s separate property. “Separate property” means property “acquired ... after entry . of a decree of dissolution of marriage.” NMSA 1978, § 40-3-8(A)(l) (Repl.Pamp.1983). “The word ‘acquired’ contemplates inception of title.” Hollingsworth v. Hicks, 57 N.M. 336, 258 P.2d 724 (1953). At the time of the divorce the increases were not even in existence. The increases, coming after the divorce, were not “acquired” until after the divorce, and were the separate property of the husband.

2. The husband’s separate contribution to the pension plan.

The trial court did. not give the estate credit for the husband’s contribution to the pension plan made before marriage. The estate contends this was error. However, the Supreme Court decision states:

Manuel Madrid also contends that the portion of his pension earned prior to marriage should be considered his separate property. LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969). The record indicates, however, that he failed to present evidence as to when the pension plan was instituted and the amount or proportion of contributions made prior to his marriage. The trial court was justified in determining he failed to meet his burden of proof. Ohl v. Ohl, 97 N.M. 175, 637 P.2d 1230 (1981).

This is the law of the case, Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968), and the Supreme Court having decided the issue, we are bound by its disposition. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

3. Disposition of the house.

The court awarded the parties’ home and lot to the wife. To apportion the community more equitably the court awarded the estate a lien on the house of $4815.00, plus interest of 10% per year. The judgment states that the lien would be paid “in whole or in party by the Petitioner [wife] at any time or upon her death or sale of the property.” The estate contends that it should receive its interest “within a reasonable time.” At the remand hearing the estate requested that the house be sold.

We review the disposition of community realty for an abuse of discretion. Cunningham v. Cunningham, 96 N.M. 529, 632 P.2d 1167 (1981); Chrane v. Chrane, 98 N.M. 471, 649 P.2d 1384 (1982); Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169 (1983). In the initial appeal the Supreme Court stated that in apportioning community property the court must consider the needs of the parties in light of all the circumstances. Laughlin v. Laughlin, 49 N.M. 20, 155 P.2d 1010 (1944). In its decision the Supreme Court noted that the wife was seriously ill and incapacitated. Since the initial appeal the husband has died. At the remand hearing the court said that the wife “didn’t look too good.” Considering that the wife was ill and living on a marginal income, and that the husband had died, the court did not abuse its discretion when it refused to order that the house be sold or that the estate should receive its interest within a reasonable time.

4.The late cross-appeal.

The wife’s cross-appeal mainly concerns the trial court’s failure to include a $2700.00 car in the community. Notice of cross-appeal would have been timely if filed by December 5, 1983. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 202(a) (Repl.Pamp. 1983). The notice of appeal was filed on November 23, 1983, but the notice of cross-appeal was not filed until December 8, 1983.

In the calendar assignment for the cross-appeal the parties were directed to brief the issue of whether the late filing of the cross-appeal deprived this court of jurisdiction to consider it. The parties did not brief the issue, apparently relying on an extension of time granted by the trial court on December 28, nunc pro tunc as of November 30. However, the nunc pro tunc order, entered more than forty days after the judgment was filed on November 14, 1983, is ineffective. Gonzales v. City of Albuquerque, 90 N.M. 785, 568 P.2d 621 (Ct.App.1977). The cross-appeal is dismissed. Jones & Laughlin Supply v. Dugan Production Corp., 85 N.M. 51, 508 P.2d 1348 (Ct.App.1973).

In light of our decision reducing the valuation of the pension the trial court may want to increase the lien on the house to arrive at a more equitable disposition. The case is remanded for further proceedings consistent with this opinion.

IT IS SO ORDERED.

ALARID, J., concurs. DONNELLY, C.J., dissents.