Baca v. Baca ( 2010 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 MIKE PAUL BACA,
8 Petitioner-Appellee,
9 v. NO. 30,169
10 MARISA MONICA BACA,
11 Respondent-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Barbara J. Vigil, District Judge
14 Pamela Emsden
15 Santa Fe, NM
16 for Appellee
17 Susan Shaefer McDevitt
18 Santa Fe, NM
19 for Appellant
20 MEMORANDUM OPINION
21 CASTILLO, Judge.
1 Wife appeals a divorce decree, including division of property, child custody,
2 and child support issues. We proposed to reverse the decree on the basis that it
3 appeared that the decree was entered as a default and that Wife had not received
4 proper notice. Husband has timely responded. We have considered his arguments
5 and, not being persuaded, we reverse.
6 In our notice, we proposed to reverse in large part because Wife had not been
7 given notice that a default judgment was going to be entered as required by Rule 1-
8 055(B) NMRA. Husband’s response indicates that there are a number of errors or
9 omissions in our calendar notice. He points to several orders to appear and notices of
10 docket call that were mailed to Wife at the address she listed with the district court.
11 [MIO 1-2] He states that she failed to appear at all of these proceedings after having
12 been given notice. The record does not show and Husband does not indicate,
13 however, that Wife received notice of the October 5, 2009, docket call. Husband
14 contends the district court requested his counsel to prepare a final order and decree
15 after Wife failed to appear at that docket call. [MIO 2]
16 Thereafter, the record indicates a clerk’s certificate as to the state of the record.
17 [RP 84] Five days later, the district court entered a final decree, with findings
18 indicating that it was being entered because of Wife’s failure to appear at several
19 docket calls and her failure to file a responsive pleading to the petition for divorce.
2
1 [RP 92] In our notice, we proposed to conclude that this was a default judgment.
2 Husband does not contend otherwise. Therefore, we conclude that the final divorce
3 decree here was a default judgment. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,
4 124 N.M. 754, 955 P.2d 683 (stating that party opposing the proposed disposition has
5 the burden of pointing out errors in fact or law; otherwise, the proposed disposition
6 is deemed accepted).
7 In our notice, we proposed to conclude that Wife’s participation in matters
8 before the district court constitutes an “appearance” entitling her to notice of the
9 default judgment. Husband does not contest that proposal. Therefore, we conclude
10 that Wife was entitled to notice pursuant to Rule 1-055(B) that default judgment was
11 going to be entered against her. The record does not indicate that such notice was
12 given and Husband does not so indicate in his memorandum in response to our
13 calendar notice. Without such notice, it was improper to enter a default judgment
14 against her and the judgment should be set aside. See Rodriguez v. Conant, 105 N.M.
15 746, 748, 737 P.2d 527, 529 (1987) (stating that failure to give such notice to one so
16 entitled is grounds to set aside a default judgment).
17 For the reasons stated herein and in the notice of proposed disposition, we set
18 aside the divorce decree and remand to the district court for trial on the merits or entry
19 of default after proper notice to Wife.
3
1 IT IS SO ORDERED.
2 ________________________________
3 CELIA FOY CASTILLO, Judge
4 WE CONCUR:
5 __________________________________
6 MICHAEL D. BUSTAMANTE, Judge
7 __________________________________
8 TIMOTHY L. GARCIA, Judge
4