Harrison v. Harrison ( 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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DALE A. HARRISON,
8 Petitioner-Appellee/Cross-Appellant,
9 v. NO. 29,398
10 SHARON G. HARRISON,
11 Respondent-Appellant/Cross-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Angela Jewell, District Judge
14 Laurence Brock
15 Ontario, CA
16 L. Helen Bennett
17 Albuquerque, NM
18 for Appellee/Cross-Appellant
19 Peter Everett IV
20 Albuquerque, NM
21 for Appellant/Cross-Appellee
22 MEMORANDUM OPINION
1 KENNEDY, Judge.
2 After their divorce, Dale A. Harrison (Husband) and Sharon G. Harrison (Wife)
3 stipulated to binding arbitration under NMSA 1978, Section 40-4-7.2 (1999), for the
4 purpose of valuing and dividing certain retirement accounts. Wife challenges the
5 validity of the arbitration on several grounds and argues the district court erroneously
6 affirmed the decision. Husband cross-appeals the court’s denial of his attorney’s fees
7 and seeks attorney’s fees in this appeal. For the reasons set out below, we affirm the
8 district court and deny Husband’s request for attorney’s fees.
9 BACKGROUND
10 Husband and Wife were married in 1963. On August 7, 2002, Husband filed
11 for divorce. The parties entered into a marital settlement agreement (MSA) that was
12 filed with the court and which they both signed. It provides that (1) Wife will receive
13 “[o]ne-half of [Husband’s] Tier I and Tier II Pension with the United States Railroad
14 Retirement Board;” (2) Husband will receive “[o]ne-half of [Wife’s] social security
15 account . . . as of February 4, 2003;” and (3) Husband will also receive “[o]ne-half of
16 [her] Pension from Albuquerque Public Schools through the New Mexico Educational
17 Retirement Association as of February 4, 2003[.]”
18 The district court granted a dissolution of marriage on June 16, 2003, and
19 formally adopted the parties’ MSA. Several years later, the only assets still requiring
2
1 division were the retirement accounts described above, and Wife filed a motion
2 seeking to divide them. Husband responded with a cross-motion, and the district court
3 held a hearing.
4 In that hearing, the district court was asked to value the retirement accounts, and
5 both parties disputed the way in which such a valuation should be achieved. The
6 court, interpreting the MSA, found it to be unambiguous but expressed concern over
7 how to arrive at values for the disputed assets. Near the end of the hearing, the
8 following exchange took place:
9 COURT: I need help, and my thought is a special master . . .
10 Bill Henderson?
11 HUSBAND: Bill Henderson’s good at these . . . .
12 WIFE: That sounds good to me.
13 COURT: Ok. Let me get Bill to take a look at this. This is just
14 . . . I mean, the language is clear, but now that we get
15 into the actual values of these things, and I have a
16 dispute and I don’t have an agreement, I need help to calculate it.
17 So, I’ll appoint Mr. Henderson as special master for the
18 purposes of effecting that unambiguous paragraph of
19 your [MSA].
20 The hearing proceeded for some time with the court referring to Bill Henderson as a
21 “special master.” Then, just prior to adjournment, the following exchange took place:
22 COURT: I’ll do the appointment of Mr. Henderson. I’ll call
23 him, and counsel needs to submit to him certain—all of your
24 things—let him maybe peruse and then I’ll let him handle that—as an
actually meet with him, it before you
3
1 arbitrator.
2 HUSBAND: As an arbitrator. Fine.
3 COURT: So that he can make a decision that’s binding on the
4 parties.
5
6 WIFE: Under the rules of arbitration, et cetera, et cetera, et
7 cetera. Ok. The—the court rules.
8
9 COURT: I will make him aware that that’s going to be his
10 position, as an arbitrator.
11 The parties then briefly discussed the authority under which Henderson would
12 arbitrate; and although they did not discuss a specific statute by name, they agreed the
13 court would draft the order for Henderson to act upon pursuant to the arbitration
14 procedures for “domestic relations.”
15 On July 7, 2008, the court issued a “stipulated order” giving Henderson power
16 to arbitrate the valuation and division of the parties’ remaining assets pursuant to
17 Section 40-4-7.2. The district court judge signed the order, but the parties did not.
18 Instead, on the signature lines where the parties would have signed, the judge initialed
19 and wrote “Agreed upon in open [court].” Our review of the record below indicates
20 neither party challenged this notation by the court. Likewise, neither party challenged
21 the validity of the court’s conclusion that both stipulated to binding arbitration.
22 When the arbitration was complete on October 15, 2008, Henderson issued a
23 written decision. His decision provided that under federal law neither Husband’s Tier
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1 I retirement benefit nor Wife’s social security benefits are divisible. As such,
2 Henderson found each party was entitled to those assets as undivided property.
3 Moreover, the decision designated values for both Husband’s Tier II retirement
4 benefits and Wife’s Albuquerque Public Schools retirement benefits and provided that
5 each should be divided equally. Wife disputed the decision by filing a motion for
6 reconsideration with Henderson on November 19, 2008. Her motion was denied.
7 Wife then appealed the decision to the district court. She argued that the
8 arbitrator acted improperly because he relied on “erroneous extrinsic facts” and
9 “misapplied the law” of valuation. Several other pleadings were filed by both parties
10 in the subsequent months, and on February 10, 2009, the district court held a hearing.
11 Wife argued that Henderson’s calculations were wrong, that he incorrectly allocated
12 certain asserts, and that he should have considered the value of Husband’s Tier I
13 benefits and Wife’s social security entitlement in reaching his decision. Husband
14 contended Wife’s challenge was untimely under Section 40-4-7.2 and that the merits
15 of the arbitrator’s decision were outside the court’s scope of review. Furthermore,
16 Husband argued, Wife did not request a record of the arbitration hearing, and the
17 court’s review should therefore be limited to the factors set forth in Section 40-4-
18 7.2(V)(1)-(4).
19 Henderson was the only witness called. He testified that he communicated to
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1 both parties that he would be acting as an arbitrator. Both parties agreed to an
2 informal process and relaxed standards of evidence and decorum. Prior to the
3 arbitration, he stated that each party submitted a “significant” amount of information
4 concerning valuation and interpretation of the MSA. Also, Henderson testified that
5 each party gave testimony, made closing arguments, and had several days after the
6 hearing’s conclusion in which to submit additional evidence and legal authority.
7 Henderson stated that he informed the parties they had twenty days after the decision
8 was issued to challenge its accuracy. Finally, he testified that he only considered
9 evidence submitted by the parties and did not consult any outside materials in reaching
10 his decision.
11 At the conclusion of the hearing, the court found that Wife had been late in
12 challenging Henderson’s decision. As a result, the court limited its review to the
13 factors set out in Section 40-4-7.2(V). Because Wife presented no evidence of a
14 violation under that section, the court affirmed the arbitration. The court also denied
15 Husband’s motion for attorney’s fees.
16 In this appeal, Wife contends the district court erroneously affirmed the
17 arbitration decision. Her briefs are confusing, conclusory, and provide scant legal
18 argument and factual support. Yet, as this Court understands them, Wife challenges
19 the district court’s decision on four bases: (1) the arbitration is void because neither
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1 party signed or stipulated to a written arbitration agreement as required by Section 40-
2 4-7.2(B); (2) Wife’s due process rights were violated under Article II, Section 18, of
3 the New Mexico Constitution; (3) the arbitrator’s decision was incorrect; and (4) the
4 arbitrator acted fraudulently and arrived at his decision via “undue means.” On cross-
5 appeal, Husband seeks the attorney’s fees he was denied for the time spent responding
6 to Wife’s arbitration challenges below and requests fees for litigating this appeal.
7 DISCUSSION
8 A. Validity of the Court’s Order to Arbitrate
9 Section 40-4-7.2 provides that parties to a divorce “may stipulate to binding
10 arbitration by a signed agreement” and prohibits courts from requiring participation
11 “except to the extent a party has agreed . . . pursuant to a written arbitration
12 agreement.” Section 40-4-7.2(A), (B). Wife argues the arbitration in this case was
13 invalid because neither she nor Husband stipulated to or signed a written agreement.
14 As stated above, the record clearly demonstrates that Husband and Wife
15 verbally agreed to binding arbitration in open court. It is also clear that neither signed
16 the order later issued by the court. Such a factual scenario may or may not fulfill the
17 requirements of Section 40-4-7.2. But in this appeal, the issue was unpreserved, and
18 it is therefore unnecessary for us to decide it. See Rule 12-216(A) NMRA (requiring
19 that parties invoke a ruling or decision by the district court to preserve issues for
7
1 appeal); see also DeFillippo v. Neil, 2002-NMCA-085, ¶ 12, 132 N.M. 529, 51 P.3d
2 1183 (“The primary purposes of the preservation requirement are (1) that the trial
3 court be alerted to the potential error and have an opportunity to avoid mistakes, and
4 (2) that opposing parties be given a fair opportunity to meet the objection.”). Wife
5 does not indicate to this Court where she preserved this issue, nor does our own
6 review of the record reveal evidence of preservation. Indeed, both parties below
7 proceeded to arbitration, participated in those proceedings willingly, and never alerted
8 the court to any failure to sign or stipulate. Only now on appeal does Wife argue this
9 issue, and we decline to consider it.
10 B. Violation of Wife’s Constitutional Rights
11 Wife also argues she was deprived of due process under Article II, Section 18
12 of the New Mexico Constitution. We refuse to consider this issue under Rule 12-
13 213(A)(4) NMRA, which requires parties to advance arguments supported by citations
14 to both legal authority and the record. See Thomas v. Thomas, 1999-NMCA-135, ¶
15 9, 128 N.M. 177, 991 P.2d 7 (holding that parties on appeal must make legal
16 arguments based on facts in the record and supported by legal authority). Wife’s brief
17 in chief does neither. She makes a conclusory statement that her constitutional rights
18 were violated. She does not argue how such rights were violated, cite other legal
19 authority in support of the contention, or provide citation to the record that would
8
1 direct this Court to specific violations. Wife simply fails to provide a basic
2 understanding of how such a violation allegedly occurred. “We will not search the
3 record for facts, arguments, and rulings in order to support generalized arguments.”
4 Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104; see In re Heeter,
5 113 N.M. 691, 694, 831 P.2d 990, 993 (Ct. App. 1992) (“This [C]ourt will not search
6 the record to find evidence to support an appellant’s claims.”).
7 C. The Merits of the Arbitrator’s Decision
8 Wife argues the arbitrator improperly refused to take into account both
9 Husband’s Tier I retirement benefits and her social security entitlement. She also
10 asserts the arbitrator used incorrect values to assess the parties’ various assets; that is
11 to say, Wife argues the arbitrator improperly analyzed the issues and reached an
12 erroneous decision. The district court refused to consider this argument and instead
13 limited its review to the grounds stated in Section 40-4-7.2(V)(1)-(4). We hold it did
14 so properly.
15 This Court applies a de novo standard to legal conclusions and reviews factual
16 determinations for substantial evidence. French-Hesch v. French-Williams, 2010-
17 NMCA-008, ¶ 4, 147 N.M. 620, 227 P.3d 110. In reviewing the facts, this Court
18 makes “all reasonable inferences in support of the prevailing party.” Id.19 Section 40-4-7.2 includes detailed guidance on how district courts should
9
1 review arbitration decisions in domestic relations cases. “If a party applies to the
2 court for vacation or modification of an arbitrator’s award issued pursuant to this
3 section, the court shall review the award only as provided in Subsections T and V of
4 this section.” Section 40-4-7.2(U). Subsection T applies only to arbitrations of child
5 custody, time-sharing, and visitation and is inapplicable to these facts. Section 40-4-
6 7.2(T). Subsection V restricts the district court’s authority to “vacate, modify or
7 correct” an arbitration award to the following grounds:
8 (1) the award was procured by corruption, fraud or other undue
9 means;
10 (2) there was evident partiality by an arbitrator; or misconduct
11 prejudicing a party’s rights;
12 (3) the arbitrator exceeded his powers; or
13 (4) the arbitrator refused to postpone the hearing on a showing of
14 sufficient cause or refused to hear evidence substantial and material to
15 the controversy.
16 Section 40-4-7.2(V)(1)-(4). As this language indicates, the statute does not authorize
17 the district court to modify an arbitrator’s decision just because that decision was
18 undesirable to one or more parties. Indeed, the statutory language does not seem to
19 contemplate the merits of the decision at all. Instead, it expresses a concern for the
20 integrity of the arbitration process: that arbitrations remain fair and just, and that the
21 arbitration be conducted free from fraud, undue influence, partiality, or misconduct.
10
1 If a party wishes to challenge errors or omissions in an arbitration decision, the
2 statute allows that party twenty days to do so, upon motion to the arbitrator. Section
3 40-4-7.2(Q). In this case, Wife filed such a motion two weeks late. As a result, the
4 arbitrator refused to consider her challenge. We hold that Wife missed her chance to
5 challenge the merits of the decision by failing to follow the requirements of Section
6 40-4-7.2(Q).1 The district court properly rejected her request for the district court to
7 ignore the grounds listed in Section 40-4-7.2(V)(1)-(4) and consider the merits of the
8 case. The district court correctly limited its review to the factors in Subsection V.
9 D. Propriety of Arbitration Under Section 40-4-7.2(V)
10 We also conclude the district court correctly analyzed Wife’s arguments under
11 Section 40-4-7.2(V). As she contended below, Wife asks us to invalidate the
12 arbitrator’s decision because it was reached via “fraud and undue means.” Her
13 arguments, although somewhat unclear, also seem to imply other possible statutory
14 grounds for reversal. Applying the standard of review discussed above, we affirm the
15 district court.
16 In the hearing before the district court, Wife offered no evidence that
1
16 In Section E of this opinion, below, we discuss the district court’s
17 consideration of Wife’s counsel’s health problems, which resulted in delays in this
18 case. We observe here, however, that Wife does not argue that her attorney’s health
19 problems were the reason for missing the deadline under Section 40-4-7.2(Q). Even
20 if that were the case, counsel never submitted any request to the court or arbitrator for
21 an extension or exception under the rule.
11
1 Henderson acted fraudulently or reached his decision through undue means. Indeed,
2 Wife offered no evidence whatsoever, on any topic, choosing instead to rely on
3 conclusory statements regarding equity and alleged errors of judgment. The only
4 evidence offered at the hearing was arbitrator Henderson’s sworn testimony, and none
5 of his statements indicate a violation under the grounds for reversal set out in Section
6 40-4-7.2(V)(1)-(4). As stated above, he testified that all parties understood he was
7 acting with the powers of an arbitrator, that all agreed to how the proceedings would
8 be conducted, and that all enjoyed the opportunity to submit their own evidence and
9 testimony. He even stated he gave the parties a period of time after the hearing in
10 which to submit additional evidence and argument. Neither party took advantage of
11 this privilege, and neither challenged his authority to act in accordance with the court
12 order and their own mutual agreement. Henderson also testified he only considered
13 evidence submitted by the parties; and though Wife challenges that testimony in this
14 appeal, she offered no evidence below to support such a challenge. Even when cross-
15 examining Henderson, Wife was unable to demonstrate any hint of impropriety in his
16 conduct during the arbitration. Thus, we hold that substantial evidence supports the
17 district court’s finding that Henderson acted properly and that Wife failed to
18 substantiate a case for reversal under Section 40-4-7.2(V). Moreover, we observe that
19 Wife could have requested that a record be made of the arbitration proceedings
12
1 pursuant to Section 40-4-7.2(L). That section states, “a record shall not ordinarily be
2 made of an arbitration hearing pursuant to this section unless either party requests it.”
3 Id. Wife therefore had the opportunity to make a record and chose not to do so. We
4 hold that conclusory statements of impropriety are no substitute for actual evidence.
5 E. Husband’s Cross-Appeal for Attorney’s Fees
6 In the proceedings below, the district court denied Husband’s request for
7 attorney’s fees but ordered Wife to pay his costs in litigating the February 9, 2009,
8 review hearing. Husband argues in this cross-appeal that the court erroneously denied
9 his request. He also contends he is entitled to attorney’s fees for his time spent
10 litigating this appeal. Wife has filed no answer regarding these arguments. For the
11 following reasons, we affirm the district court’s denial of attorney’s fees below and
12 deny Husband’s request for attorney’s fees on appeal.
13 At the conclusion of the February 9, 2009 hearing, the district court denied
14 Husband’s request for attorney’s fees. Husband had argued that Wife’s appeal from
15 the arbitrator’s decision was frivolous and untimely; but the court, in considering the
16 issue, found that although Wife’s appeal would be denied as untimely, such
17 untimeliness was due to her attorney’s health problems. Thus, the court concluded,
18 Husband was not entitled to attorney’s fees. Husband argues the district court abused
19 its discretion by ruling on a motion for fees without properly considering his argument
13
1 and by failing to enter findings of fact and conclusions of law. We disagree.
2 Under NMSA 1978, Section 40-4-7(A) (1997), the district “court may make an
3 order, relative to the expenses of the proceeding, as will ensure either party an
4 efficient preparation and presentation of his case.” The determination “is within the
5 discretion of the [district] court and will be reviewed only to determine whether there
6 has been an abuse of discretion.” Monsanto v. Monsanto, 119 N.M. 678, 681, 894
7 P.2d 1034, 1037 (Ct. App. 1995); see Grant v. Cumiford, 2005-NMCA-058, ¶ 35, 137
8 N.M. 485, 112 P.3d 1142. The main consideration is whether both parties were able
9 to efficiently prepare and present their case. Id. Section 40-4-7.2(A) sets out a non-
10 exclusive list of factors courts may use, including: disparities in income between the
11 parties, prior settlement offers, the amount of fees paid by each party, and success on
12 the merits. Courts possess broad discretion in this determination, and it is not
13 necessary for them to issue a “writing containing separately stated findings of fact and
14 conclusions of law.” Monsanto, 119 N.M. at 682, 894 P.2d at 1038 (holding courts
15 do not have to issue written decisions in motions hearings as they do for trial
16 proceedings).
17 On the facts above, we cannot hold that the district court abused its discretion
18 in refusing to award attorney’s fees. It clearly considered Husband’s arguments,
19 found that there was a good faith reason for Wife’s delay, and concluded that an
14
1 award of attorney’s fees was unnecessary. These actions do not constitute a clear
2 departure from “the logical conclusions demanded by the facts and circumstances of
3 the case.” Gilmore v. Gilmore, 2010-NMCA-013, ¶ 24, 147 N.M. 625, 227 P.3d 1154 (internal quotation marks and citation omitted). Moreover, Husband does not
5 demonstrate to us how such denial foreclosed to him the opportunity to efficiently
6 prepare and present his case. Grant, 2005-NMCA-058, ¶ 35. We therefore affirm the
7 district court’s denial of attorney’s fees.
8 We also deny Husband’s request for attorney’s fees in this appeal. Husband
9 appears to argue that he is entitled to fees under Rule 12-403(B)(4), which permits
10 such an award to the prevailing party “if it is determined that the appeal is frivolous,
11 not in good faith, or merely for the purpose of delay.” We cannot say that Wife’s
12 appeal was frivolous or pursued in bad faith, so we deny Husband’s request.
13 CONCLUSION
14 For the reasons stated above, we affirm the district court and deny Husband’s
15 request for attorney’s fees on appeal.
15
1 IT IS SO ORDERED.
2 ___________________________________
3 RODERICK T. KENNEDY, Judge
4 WE CONCUR:
5 _________________________
6 CYNTHIA A. FRY, Judge
7 _________________________
8 MICHAEL E. VIGIL, Judge
16