Atherton v. Gopin

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:32:34 2015.09.11
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2015-NMCA-087
Filing Date: June 18, 2015
Docket No. 32,958
UTTI ATHERTON, LAURA JARAMILLO,
JOHN DOE 1-99, and JANE DOE 1-99,
Plaintiffs-Appellees,
and
STATE OF NEW MEXICO, ex rel.,
HECTOR H. BALDERAS, Attorney General,
Plaintiff-Appellee,
v.
MICHAEL J. GOPIN, an unlicensed New
Mexico attorney d/b/a LAW OFFICES
OF MICHAEL J. GOPIN,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Judge
Robert N. (Tito) Meyer
Las Cruces, NM
Kenneth L. Beal
Las Cruces, NM
for Appellees
Hector H. Balderas, Attorney General
Santa Fe, NM
Tonya Noonan Herring, Special Assistant Attorney General
Rebecca C. Branch, Special Assistant Attorney General
Ismael L. Camacho, Special Assistant Attorney General
1
Albuquerque, NM
for Appellee Attorney General
Caren I. Friedman
Santa Fe, NM
Gorence & Oliveros, P.C.
Robert J. Gorence
Albuquerque, NM
for Appellant
OPINION
BUSTAMANTE, Judge.
{1} After a ne exeat bond is set, may a district court exercise its discretion to increase the
amount of the bond? This is a matter of first impression in New Mexico. To resolve the
issue, we examine the parameters of the writ of ne exeat, a little-used writ with origins dating
as far back as the tenth century. Concluding that the district court did not abuse its discretion,
we affirm.
BACKGROUND
{2} The present matter stems from a 2011 judgment against Michael J. Gopin
(Defendant) for violations of the New Mexico Unfair Practices Act (UPA), NMSA 1978, §§
57-12-1 to -26 (1967, as amended through 2009). “The judgment included treble damage
awards in favor of twelve individual [p]laintiffs totaling $216,222.57, $757,358.56 in favor
of the New Mexico Attorney General as restitution for 110 consumers, and $1,570,000 in
civil penalties in favor of the Attorney General.” Atherton v. Gopin (Atherton I), 2015-
NMCA-003, ¶ 2, 340 P.3d 630, cert. granted, 2014-NMCERT-012, 344 P.3d 988. The
details leading to the judgment are set out in this Court’s Opinion in the appeal of that
judgment. Id. ¶¶ 5-17. Because those details are not critical to the issue before us on this
appeal, we do not repeat them here. It suffices to say that after entry of summary judgment
in Atherton I, the district court issued a writ of ne exeat, the subsequent alteration of which
is the only issue before us in this appeal.
{3} The Attorney General filed an application for writ of ne exeat on January 3, 2012,
less than a month after entry of the judgment. The application requested the district court to
enter a writ “without advance notice to Defendant,” barring Defendant from leaving the State
of New Mexico, removing any assets from New Mexico, and “hiding, spending, or disposing
of his personal assets, or the assets of the business, pending further order of [the district
c]ourt.” A hearing was held on January 5, 2012. At the hearing, the district court stated that
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“the Attorney General has established good cause to believe that [Defendant] may be about
to remove assets from the jurisdiction of the [district] court.” It ordered Defendant to post
a ne exeat bond in the amount of $100,000, which was based on the sale price of a building
Defendant owned in New Mexico (the Solano property).
{4} Defendant moved for reconsideration of the ne exeat bond order, but failed to appear
at the hearing on the motion. Following the hearing, the district court entered findings of
fact. Specifically, it found that (1) “[t]he evidence before the [c]ourt establishes that
Defendant has engaged in . . . complex financial transaction[s] for the purpose of preventing
collection of this judgment[;]” (2) “Defendant has dissipated assets during the pendency of
this case, including the sale of [the Solano] property located in Las Cruces, New Mexico[;]”
and (3) “[a]t the January 5, 2012[,] hearing, Defendant testified under oath that he would
attend all future hearings in this case and would not flee the jurisdiction.” It also found that
“[m]ore than [thirty] days has passed since the [c]ourt ordered [D]efendant to post a bond
with the [c]ourt.” Based on these and other findings, the district court concluded that “a bond
in the amount of $500,000, which represents approximately 25% of the total judgment
entered against [D]efendant, is appropriate to prevent further dissipation of assets within the
jurisdiction of the [c]ourt and to secure [D]efendant’s appearance at all future proceedings.”
{5} On March 20, 2012, the district court issued a temporary restraining order enjoining
Defendant from, among other things, removing any assets owned by him personally or
owned by the law offices of Michael J. Gopin from New Mexico. Defendant then failed to
appear for a March 27, 2012, hearing and the district court issued an order to show cause
why he should not be held in contempt for failure to appear. The show cause hearing was
scheduled for May 16, 2012. Meanwhile, the ne exeat bond order for a bond of $500,000 was
issued on April 24, 2012. Defendant failed to post the bond and failed to appear at the May
16, 2012, hearing. The district court then entered a bench warrant for his arrest and increased
the bond to $1,000,000 ($500,000 for the ne exeat bond and $500,000 for failure to appear
at the May 16, 2012, hearing). Defendant was arrested and put in jail. Pursuant to
Defendant’s emergency motion, the district court quashed the bench warrant and reduced the
ne exeat bond to $250,000. Defendant paid that sum into the court registry.
{6} Defendant does not appeal any of the foregoing rulings or orders. Rather, Defendant
only appeals an order increasing the amount of the ne exeat bond. This order followed a
February 27, 2013, motion for increase by the Attorney General in which the Attorney
General alleged that Defendant “continue[d] to dissipate his assets from New Mexico.”
Defendant filed responsive pleadings, and a hearing on the motion was held on April 30,
2013. The district court found that “Defendant’s [r]eal [e]state [c]ontract [for sale of the
Solano property] is an asset that Defendant continues to dissipate from the [S]tate of New
Mexico” and ordered Defendant to post an additional $120,000 as part of the ne exeat bond.
DISCUSSION
The Writ of Ne Exeat
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{7} Section 57-12-17 of the UPA permits the attorney general to move for a writ of ne
exeat “[w]henever the attorney general has reasonable belief that any . . . person [violating
the UPA] is about to remove himself from the [S]tate of New Mexico, or is about to remove
his property or assets from the [S]tate of New Mexico.” Using the writ, “the court may forbid
any such person from leaving the [S]tate of New Mexico, or removing his property or assets
from the [S]tate of New Mexico until a determination of the issues [alleged under the UPA]
has been made.” Id. There are no cases in New Mexico construing the ne exeat provisions
in the UPA. See §§ 57-12-17 to -20. Thus the questions presented here are matters of first
impression.
{8} Although the parties appear to agree that the district court’s authority to issue the writ
arises from the UPA, “the writ of ne exeat was not created, nor are its functions defined by
statute.” Nixon v. Nixon, 158 N.W.2d 919, 922 (Wis. 1968). Hence, “[a]s to the general
functions of the writ and the grounds upon which it may issue, resort must be had to
principles of the common law.” Id.
{9} The writ of ne exeat has ancient origins. “The forerunner of this writ in ancient
common law appears to have been a writ de securitatem invenienda which was designed to
prevent members of the clergy in England from departing the realm to visit the Papal See.
It was thus limited in use to ecclesiastics only.” Nat’l Auto. & Cas. Ins. Co. v. Queck, 405
P.2d 905, 909 (Ariz. Ct. App. 1965). “Sometime between the reign of John (1199-1216), and
Edward I (1272-1307), . . . the writ of ne exeat regno was first used as a high prerogative
writ . . . applied to subjects and foreigners alike, to prevent them from leaving the kingdom.”
Id. By the seventeenth century, use of the writ of ne exeat had evolved to encompass
enforcement of private rights. Id. at 910; see also Beveridge v. Beveridge, 507 A.2d 502, 504
(Conn. App. Ct. 1986).
{10} As used today, “[t]he writ of ne exeat is an equitable remedy in the nature of bail at
common law. It is directed to the sheriff, commanding him to commit the party to prison
until he gives security not to leave the jurisdiction without permission of the court.” The Writ
of Ne Exeat, 29 Harv. L. Rev. 206, 206 (1915) (footnotes omitted). “The purposes of the writ
are to insure compliance with orders and decrees of court and to enable the court to retain
jurisdiction of the party against whom it is issued.” 65 C.J.S. Ne Exeat § 2 (2015); Tedards
v. Auty, 557 A.2d 1030, 1034 (N.J. Super. Ct. App. Div. 1989) (“The purpose of a writ of
ne exeat is to compel a defendant’s physical appearance in court when required.”). There are
“two requirements for the issuance of the writ: (1) a threatened departure of the defendant
[or removal of property] from the jurisdiction; and (2) a resulting defeat of the court’s power
to give effective in personam relief due to its loss of control over the defendant’s person [or
property].” United States v. Robbins, 235 F. Supp. 353, 356 (E.D. Ark. 1964); see § 57-12-
17; 57 Am. Jur. 2d Ne Exeat § 9 (2015) (“[W]here the removal of property would defeat the
purpose of a ne exeat writ, the order in the writ may detain property, as well as the person.”).
{11} These requirements circumscribe the use of a writ of ne exeat: “In the absence of [a
threat to abscond], the writ may not be used as a form[] of coercing payment of a debt, no
4
matter how just, nor as a form[] of punishment, no matter how deserved.” Tedards, 557 A.2d
at 1034. Moreover, because “[t]he writ of ne exeat operates in restraint of personal liberty[,
i]t is to be granted with caution [and] continued in force with caution.” Cohen v. Cohen, 64
N.E.2d 689, 693 (Mass. 1946); Elkay Steel Co. v. Collins, 141 A.2d 212, 218 (Pa. 1958)
(stating that “use and employment [of the writ] must be carefully circumscribed within
appropriate limits and its issuance exercised with great caution and only in such instances
where it clearly and unmistakably applies”). “As an adjunct to the trial court’s equitable
jurisdiction, the issuance, terms, and implementation of writs of ne exeat lie within the
court’s sound discretion.” Gredone v. Gredone, 361 A.2d 176, 180 (D.C. 1976).
{12} Once the purpose of the writ and conditions of the bond have been fulfilled, the writ
and the bond are discharged. May v. May, 91 S.E. 687, 688 (Ga. 1917) (stating that when the
defendant did all that he was “obligated to do in his bond; and, the bond having discharged
all the offices for which it was intended, [the bond] should have been canceled as functus
officio, and the sureties discharged”); 27A C.J.S. Divorce § 198 (2015) (“Upon the
fulfillment of the purpose of the writ and the conditions of the bond, . . . the writ and the
bond are functus officio.” (footnotes omitted)); Black’s Law Dictionary 787 (10th ed. 2014)
(defining “functus officio” as “without further authority or legal competence because the
duties and functions of the original commission have been fully accomplished”). On the
other hand, failure to comply with the conditions of a ne exeat bond results in forfeiture of
the bond. See 27A C.J.S. Divorce § 198 (“A failure to meet the conditions of a ne exeat bond
forfeit[s] the entire bond.”); Queck, 405 P.2d at 912 (stating that where the defendant failed
to stay within the jurisdiction, the bond was forfeited). As with the issuance of a writ of ne
exeat, “the matter of discharge . . . on a [n]e exeat bond rests in the sound discretion of the
court.” Coursen v. Coursen, 252 A.2d 738, 739 (N.J. Super. Ct. App. Div. 1969).
Defendant’s Arguments
{13} Defendant makes four arguments. First, he argues that the district court lacked
jurisdiction to order an increase in the ne exeat bond. Second, he maintains that the ne exeat
bond violated the UPA. Third, Defendant contends that there was insufficient evidence to
support increasing the bond. Finally, he argues that he was deprived of his right to due
process of law when the district court ordered the ne exeat bond increased. We address these
arguments in turn.
1. Jurisdiction to Increase the Bond
{14} Defendant argues first that the district court did not have jurisdiction to increase the
amount of the bond because an appeal was pending in the underlying matter (Atherton I). We
review such jurisdictional questions de novo. Smith v. City of Santa Fe, 2007-NMSC-055,
¶ 10, 142 N.M. 786, 171 P.3d 300. Defendant relies on the general rule “that the filing of a
proper notice of appeal divests the district court of jurisdiction and transfers jurisdiction to
the appellate court.” Murken v. Solv-Ex Corp., 2006-NMCA-064, ¶ 9, 139 N.M. 625, 136
P.3d 1035. Recognizing that “the rule is not absolute, as it does not prevent the district court
5
from taking actions to carry out or enforce the judgment[,]” id. (internal quotation marks and
citation omitted), Defendant argues that “increasing the amount of the ne exeat bond by
$120,000 does not enable the [district] court to carry out or enforce the judgment.” Rather,
he argues, the increase in the bond amount was a modification of the judgment, an act not
within the district court’s jurisdiction once the judgment is appealed. See Hall v. Hall, 1992-
NMCA-097, ¶ 38, 114 N.M. 378, 838 P.2d 995 (“As a general rule, while a court has
jurisdiction after the judgment to enforce that judgment, it lacks jurisdiction to modify the
judgment except under limited circumstances.”).
{15} Defendant’s argument ignores the basic nature of the writ. A ne exeat bond order “is
not in itself a remedy. It is a means to effectuate a remedy by keeping a party within the
jurisdiction of the court.” 57 Am. Jur. 2d Ne Exeat § 2 (2015). The writ is not part of the
judgment. Id. It follows that modification of a bond amount is not akin to modification of
a judgment.
{16} To the extent that Defendant argues that the ne exeat bond order is not collateral to
the underlying judgment because “[t]here can be no issuance of a writ of ne exeat if there is
no violation of the [UPA,]” we disagree. Issuance of the writ does not depend on an actual
violation of the UPA. Section 57-12-17 permits the issuance of a writ of ne exeat when the
“attorney general has reasonable belief that any person is using or is about to use any
method, act or practice which is declared by the [UPA] to be unlawful” and “reasonable
belief that any such person is about to remove himself from the [S]tate of New Mexico, or
is about to remove his property or assets from the [S]tate of New Mexico.” Id. (emphasis
added). This language indicates that the Legislature contemplated issuance of the writ even
before entry of judgment on the UPA claims. The writ is thus an aid to effecting a remedy
for UPA violations, but it is not itself a remedy. It is necessarily collateral to any UPA
judgment that may be entered.
{17} Finally, Defendant argues that the district court lost jurisdiction to enter the writ once
judgment was entered because Section 57-12-17 provides for issuance of the writ “until a
determination of the issues has been made.” We do not agree. Given the purposes of the writ
of ne exeat, it does not make sense to construe the statute as depriving the district court of
jurisdiction over this collateral matter while a judgment is on appeal. Instead, we interpret
this language to permit continuation of the writ until the issues are completely determined,
meaning that judgment is either paid or dismissed. See Tafoya v. Garcia, 1871-NMSC-003,
¶ 5, 1 N.M. 480 (“The spirit, as well as the letter of the statute, must be respected; and where
the whole context of a law demonstrates a particular intent in the [L]egislature to effect a
certain object, some degree of implication may be called in to aid that intent[.]” (internal
quotation marks and citation omitted)). We conclude that the modification of the ne exeat
bond order here was within the district court’s jurisdiction to enforce its judgment in
Atherton I notwithstanding the appeal of that judgment.
2. The Bond Conforms to the Statute
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{18} Defendant next argues that issuance of a bond order conditioned on refraining from
dissipating assets is contrary to the terms of the UPA. He distinguishes a writ of ne exeat
from a ne exeat bond and argues that whereas Section 57-12-17 permits entry of a writ to
prevent dissipation, Section 57-12-18 limits ne exeat bonds to those conditioned on the
defendant’s appearance in court. Section 57-12-18 states that “[t]he court may require any
. . . person [alleged to violate the UPA] to post a ne exeat bond conditioned on such persons
[person’s] appearance at all hearings on the matter at issue.” (Third alteration in original).
Defendant’s argument presents a question of statutory construction which we review de
novo. Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69.
{19} “In construing a statute, our charge is to determine and give effect to the
Legislature’s intent.” Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-
NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. Where a statute touches an issue in the
common law, we interpret the statute’s language in the context of that law. Sims v. Sims,
1996-NMSC-078, ¶ 23, 122 N.M. 618, 930 P.2d 153. We assume that the Legislature was
“informed about the existing common law before the statute was enacted,” id. ¶ 24, and
interpret a statute “as supplanting the common law only if there is an explicit indication that
the [L]egislature so intended.” Id. ¶ 22. “This rule of construction is a recognition that any
law is passed against the background of all the law in effect at the time. If no aspect of the
background of law is clearly abrogated, it is presumed to be consistent with, if not
incorporated into, new legislation.” Id. ¶ 24.
{20} As discussed above, at common law, a bond is an inherent part of a writ of ne exeat.
Put another way, the writ itself contemplates—if not requires—a bond. 57 Am. Jur. 2d Ne
Exeat § 2 (“A writ of ne exeat may be issued to secure to the plaintiff the presence of the
defendant within the limits of the court’s jurisdiction until the satisfaction of the plaintiff’s
equitable claim or until a bond, or equitable bail, is given for that purpose.” (emphasis
added) (footnote omitted)). Defendant’s distinction between a writ of ne exeat and a ne exeat
bond is, therefore, specious. In addition, “[h]istorically, where the removal of property would
defeat the purpose of a ne exeat writ, the order in the writ may detain property, as well as the
person.” 57 Am. Jur. 2d Ne Exeat § 9. Hence, at common law, a ne exeat writ, including a
bond, may be conditioned on preservation of assets. Although Section 57-12-18 provides for
an instance in which a bond may be required, it does not prohibit bonds related to assets or
property. Therefore, since the statute is silent as to these bonds, the statute does not abrogate
the common law. Issuance of the bond order conditioned on preservation of assets was not
contrary to the UPA.
3. Sufficiency of the Evidence
{21} Next, Defendant argues that the district court’s decision to increase the bond amount
was not supported by sufficient evidence. He alleges three ways in which the district court’s
order was error. First, he argues that because the district court’s first ne exeat bond order of
$100,000 was based on the value of the Solano property, the subsequent increase of the bond
order based on a real estate contract related to the same property was improper. Second, he
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contends that there was no evidence that he had an ownership interest in the Solano property.
Third, he maintains that there was no evidence that he had or would dissipate assets in New
Mexico. We address these arguments in turn.
{22} The fundamental premise of Defendant’s first argument is that the amount of the
bond order must be based on the value of the property he is allegedly dissipating and that,
therefore, the same property cannot serve twice as the basis for a bond order. It appears that
the parties and the district court shared this understanding of the limits on the amount of a
ne exeat bond. But the parties do not cite and we have found no authority supporting this
premise. Rather, some authorities state that the amount of a ne exeat bond is related to the
amount of the plaintiff’s interests or the judgment. See, e.g., Polly J. Price, Full Faith &
Credit & the Equity Conflict, 84 Va. L. Rev. 747, 801 (1998) (“The writ was commonly
directed to a sheriff to require the defendant to post sufficient security that he would not
depart the territory without leave of the court, in an amount sufficient to satisfy the plaintiff’s
interest, or be imprisoned.”); 57 Am. Jur. 2d Ne Exeat § 26 (2015) (“The sum assessed must
be sufficient to cover not only the existing debt but also costs and a reasonable amount of
future interest having regard to the probable duration of the suit.”); McNamara v. Dwyer, 7
Paige Ch. 239, 245 (N.Y. Ch. 1838) (holding that “[t]he amount in which the defendant is
held to bail upon the [n]e exeat should therefore be reduced to $9000; as that will be
sufficient to cover what will probably be found due to the complainants, with interest and
costs”). Other authorities appear to endorse a bond based on an assessment of the amount
necessary to provide the defendant a material incentive to remain within the jurisdiction
and/or refrain from dissipating assets without regard to the amount at issue in the underlying
action. See, e.g., Elkay Steel Co., 141 A.2d at 214 n.3 (ordering bond of $25,000 each from
two defendants where the amount in issue was $60,165); Gredone, 361 A.2d at 179 (ordering
bond of $1,000 where trial ultimately resulted in money judgments against the defendant
totaling over $13,000). Thus, to the extent that Defendant argues that the increase of the
bond was improper because it was based on the same property used as a basis for the initial
bond, we disagree because the amount of the bond need not necessarily be tied to the value
of the property.
{23} Defendant directs us to Siravo v. Siravo, 670 So. 2d 983, 985 (Fla. Dist. Ct. App.
1996), in which the court stated that a writ is not “a substitute for a contempt, injunction, or
other enforcement order, where its purpose is not to prevent a party from fleeing or removing
assets but, rather, to force the party to post security, or produce assets, that would be used
to satisfy a judgment.” But in that case, the court also expressly stated that a ne exeat bond
is “a valuable resource in the arsenal of remedies available to a trial court in order to secure
alimony and support.” Id. The Siravo court found that a ne exeat bond was improper in that
case because there was no evidence of the defendant’s intent to flee the jurisdiction and other
remedies, such as contempt, were available to enforce the court’s judgment. Id. We interpret
the court’s statements to indicate that a ne exeat bond is inappropriate where its only purpose
is to secure assets, rather than to prevent the defendant from fleeing or dissipating assets. We
decline Defendant’s invitation to interpret the holding in Siravo as a blanket prohibition
against a ne exeat bond as used in this case.
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{24} In any case, the authorities agree on two points related to the bond: that the amount
of the bond is within the district court’s discretion and that the bond amount may not be
excessive or oppressive. Gredone, 361 A.2d at 180 (“As an adjunct to the trial court’s
equitable jurisdiction, the issuance, terms, and implementation of writs of ne exeat lie within
the court’s sound discretion.”); State v. Browne, 142 So. 247, 250 (Fla. 1932) (“Excessive
or unreasonable bail should never be required; as the writ is a purely civil writ, it should not
be allowed to be used oppressively or in unnecessary violation of the defendant’s
constitutional right to personal freedom to go and come as he may please.”). The total bond
amount including the increase was $370,000, well under the total amount of the judgment
of approximately $2.5 million. Further, Defendant does not argue on appeal that the bond
amount is excessive or oppressive. We discern no abuse of discretion in the bond amount.
{25} This conclusion leads us to Defendant’s second and third arguments having to do
with whether there was substantial evidence that he has an ownership interest in the Solano
property or that he was dissipating assets from New Mexico. The district court abuses its
discretion if it enters findings of fact that are not supported by substantial evidence. Perkins
v. Dep’t of Human Servs., 1987-NMCA-148, ¶ 19, 106 N.M. 651, 748 P.2d 24 (“An abuse
of discretion is established if the . . . lower court has not proceeded in the manner required
by law, the order or decision is not supported by the findings, or the findings are not
supported by the evidence.”). When reviewing for substantial evidence, we adhere to the
following principles:
If substantial evidence supports a trial court’s conclusion it will not be
disturbed on appeal. Substantial evidence is such relevant evidence that a
reasonable mind would find adequate to support a conclusion. Evidence is
substantial even if it barely tips the scales in favor of the party bearing the
burden of proof.
Landavazo v. Sanchez, 1990-NMSC-114, ¶ 7, 111 N.M. 137, 802 P.2d 1283 (citations
omitted).
{26} In addition, “in deciding whether the finding has substantial support, the court must
view evidence in the light most favorable to support the finding[.]” Duke City Lumber Co.
v. N.M. Envtl. Improvement Bd., 1984-NMSC-042, ¶ 12, 101 N.M. 291, 681 P.2d 717. We
do not review “any evidence unfavorable to the finding” and do “not weigh conflicting
evidence or determine credibility of witnesses.” Id.
{27} Defendant does not dispute that he owned the Solano property in December, 2011
and that he entered into a real estate contract for sale of the property and transferred his
interest in the property to his wife on December 9, 2011, just days before judgment was
entered in Atherton I. The Attorney General attached a copy of the real estate contract to its
motion to increase the bond and copies of a “memorandum of real estate contract” and the
transfer document were entered into evidence at the hearing on the motion to increase.
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{28} As we understand it, Defendant’s argument is that he could not be dissipating funds
from the sale of the Solano property because he does not currently have an interest in it. This
argument is unavailing. Based on the undisputed facts, viewed in the light most favorable
to the district court’s decision, we conclude that the district court could reasonably find that
the sale and transfer of the property themselves constituted dissipation of that asset. Since
the real estate contract indicated that payments from the sale were continuing at the time of
the hearing on the motion to increase, the district court’s finding that “assets are continuing
to be dissipated from the jurisdiction of this [c]ourt” is also supported by the evidence.
{29} Defendant also appears to rely on the fact that the property was sold before entry of
judgment in Atherton I as evidence that the ne exeat order and bond were improper. But
under Section 57-12-17, entry of a judgment is not a prerequisite to issuance of the writ.
Hence, it was not an abuse of discretion for the district court to consider the sale of the
property even though it occurred before the entry of the judgment and before the application
for writ of ne exeat.1
4. Due Process
{30} Finally, Defendant makes a brief argument that he was denied the due process of law
accorded him by the New Mexico and federal constitutions because he had no opportunity
to be heard before the ne exeat bond was increased. See U.S. Const. amend. V; N.M. Const.
art. II, § 18. Defendant relies on Jacobsen v. Jacobsen, 126 F.2d 13, 14-15 (D.C. Cir. 1942),
for the proposition that “since he had denied the allegations of the [motion for increase], he
was further entitled to a full hearing [including] a full opportunity to introduce oral
testimony.” There, the court held that where “[the defendant] was given no such opportunity,
continuing the writ [ne exeat] in force deprived him of his liberty without due process of law,
in violation of the Fifth Amendment.” Id. at 15. Due process is provided when a defendant
has “timely notice . . . ; a reasonable opportunity to [be heard]; a reasonable opportunity to
confront and cross-examine adverse witnesses and present evidence . . . ; representation by
counsel . . . ; and a hearing before an impartial decisionmaker.” In re Pamela A.G., 2006-
NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746 (internal quotation marks and citation
omitted).
{31} Defendant acknowledges that this argument was not raised in the district court and,
therefore, was not preserved for appeal. Generally, “[d]ue process claims will not be
addressed when raised for the first time on appeal.” State v. Martinez, 2007-NMCA-160, ¶
4, 143 N.M. 96, 173 P.3d 18. Defendant argues that nevertheless we should review this issue
1
Defendant directs our attention to an affidavit filed with this Court, which is not part
of the record proper. We do not consider evidence not reviewed in the first instance by the
district court. State v. Romero, 1975-NMCA-017, ¶ 2, 87 N.M. 279, 532 P.2d 208 (“Matters
outside the record present no issue for review.”). We also decline to consider documents
cited by the Attorney General that were not part of the record below. See id.
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because “it involves the public interest and the fundamental right[s] of Defendant.” See Rule
12-216(B) NMRA. But, other than asserting that “a writ of ne exeat is an infringement on
a party’s liberty interest[,]” Defendant provides no reason why this particular due process
challenge should be exempt from the general preservation rule. Similarly, although he asserts
that “this case implicates the public interest because enforcement of the [UPA] is entrusted
to the Attorney General on behalf of the people of New Mexico,” he gives no reason why
this fact distinguishes this matter from any other pursued by a state agency. Thus, we need
not address this argument any further. Cf. Doe v. State, 1975-NMCA-108, ¶ 18, 88 N.M.
347, 540 P.2d 827 (declining to address the respondents’ arguments because they did not
provide “some showing on appeal of the suggested fundamental or jurisdictional nature of
the error”). However, to foreclose any further argument on the issue, we will address it on
its merits.
{32} Defendant’s assertion that he was provided no opportunity to be heard on the motion
for increase is flatly contradicted by the record, as is his contention that the Attorney General
presented “nothing but innuendo” at the hearing and that the district court considered “no
evidence whatsoever.” Defendant filed a response in opposition to the motion in which he
disputed that he was dissipating assets from New Mexico and contested the Attorney
General’s interpretation of the real estate contract documenting sale of the Solano property.
Moreover, Defendant had notice of and was present and represented by counsel at the
hearing on the motion. There is no indication in the record that Defendant was denied the
opportunity to present witnesses at the hearing. Finally, the Attorney General submitted a
memorandum of the real estate contract as an exhibit, and Defendant himself submitted an
exhibit for the district court’s review. Defendant’s right to due process of law was not
violated.
CONCLUSION
{33} For the foregoing reasons, we affirm the district court’s order increasing the amount
of the writ of ne exeat bond.
{34} IT IS SO ORDERED.
____________________________________
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
____________________________________
RODERICK T. KENNEDY, Judge
____________________________________
LINDA M. VANZI, Judge
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