This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MICHELLE E. GARCIA,
3 Petitioner-Appellant,
4 v. NO. 32,741
5 DANIEL S. GARCIA,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
8 James L. Sanchez, District Judge
9 Meintzer Law Firm
10 Ed Meintzer
11 Los Lunas, NM
12 for Appellant
13 Law Office of David C. Chavez
14 David C. Chavez
15 Los Lunas, NM
16 for Appellee
1 MEMORANDUM OPINION
2 WECHSLER, Judge.
3 {1} Petitioner appeals from a district court order denying her motion to reconsider
4 an order dismissing her attempt to re-open divorce proceedings three years after the
5 entry of the final decree. We issued a calendar notice proposing to affirm. Petitioner
6 has responded with a memorandum in opposition. We affirm.
7 ISSUE A
8 {2} Petitioner continues to claim that the district court erred in refusing to re-open
9 the parties’ divorce proceedings, either under Rule 1-060(B) NMRA or NMSA 1978,
10 Section 40-4-20 (1993). [MIO 1] Rule 1-060(B) states:
11 On motion and upon such terms as are just, the court may relieve
12 a party or his legal representative from a final judgment, order or
13 proceeding for the following reasons:
14 (1) mistake, inadvertence, surprise or excusable neglect;
15 (2) newly discovered evidence which by due diligence could
16 not have been discovered in time to move for a new trial under Rule
17 1-059 NMRA;
18 (3) fraud (whether heretofore denominated intrinsic or
19 extrinsic), misrepresentation or other misconduct of an adverse party;
20 (4) the judgment is void;
21 (5) the judgment has been satisfied, released or discharged, or
22 a prior judgment upon which it is based has been reversed or otherwise
23 vacated, or it is no longer equitable that the judgment should have
24 prospective application; or
25 (6) any other reason justifying relief from the operation of the
26 judgment. The motion shall be made within a reasonable time, and for
1 reasons (1), (2) and (3) not more than one-year after the judgment, order
2 or proceeding was entered or taken. . . .
3 {3} Petitioner’s May 2012 motion sought to set aside a September 2009 divorce
4 decree and also appears to have sought to set aside the property division that occurred
5 in two prior divorces between the parties. [RP 1] Petitioner’s claim that Respondent
6 committed fraud implicates reason (3) under Rule 1-060(B). [RP 8, ¶ 45] However,
7 Petitioner’s motion was filed well beyond the one-year time limit for invoking that
8 provision. To the extent that Petitioner believed that there were exceptional
9 circumstances permitting relief under Rule 1-060(B)(6), we note that this provision
10 may not be used to circumvent time limits when a party’s claims fall within the other
11 provisions of the rule. See Marinchek v. Paige, 108 N.M. 349, 351, 772 P.2d 879, 881
12 (1989); Thompson v. Thompson, 99 N.M. 473, 475, 660 P.2d 115, 117 (1983). We do
13 not believe that the district court abused its discretion in determining that Rule 1-
14 060(B)(3) applied to Petitioner’s arguments. [RP 171-72] See Martinez v. Friede,
15 2004-NMSC-006, ¶ 19, 135 N.M. 171, 86 P.3d 596 (observing that we review ruling
16 for abuse of discretion), superseded by rule on other grounds as stated in State v.
17 Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. As such, Petitioner could
18 not rely on Rule 1-060(B)(6) to circumvent the time limit. We reject Petitioner’s
19 claim [MIO 1, 6] that she is raising a subject matter challenge, because to equate a
20 fraud claim with a subject matter challenge would render meaningless the time limit
2
1 applicable to Rule 1-060(B)(3). See State v. Garcia, 2002-NMCA-050, ¶ 12, 132
2 N.M. 180, 45 P.3d 900 (rejecting an interpretation of a rule that would render part of
3 the rule meaningless).
4 {4} With respect to Section 40-4-20, that statute permits the re-opening of a divorce
5 case where there remains undivided community property. Here, the district court
6 determined that there was no undivided community property, but that Petitioner
7 simply wanted a re-division because she received a “bum deal.” [RP 170] The
8 language of the 2009 marital settlement agreement [MSA] supports the district court’s
9 determination. [RP 53] To the extent that Petitioner claimed that some property was
10 undivided, the district court could construe the broad language of the MSA to have
11 resolved the issue, and to the extent that Petitioner’s division arguments had merit,
12 they concern the execution of the prior agreements. [RP 141-142]
13 ISSUE B
14 {5} Petitioner continues to claim that the district court erred in denying her motion
15 to reconsider and attempt to amend her motion. [MIO 7-8] As we interpret
16 Petitioner’s arguments, she was essentially re-stating the claims of fraud and lack of
17 execution that were the subject of her initial motion. [RP 66] As such, we affirm for
18 the reasons set forth above.
3
1 ISSUE C
2 {6} Petitioner continues to claim that the district court should have recused at the
3 motion to reconsider stage because Petitioner believed that the court was improperly
4 impeding her attempts to satisfy the requirements of Section 40-4-20 and her attempts
5 to get the judge to change his mind. [MIO 8] As we interpret Petitioner’s arguments,
6 they essentially claim that the district court was committing errors in its rulings. These
7 rulings are subject to appellate review and do not form the basis of recusal. See In the
8 Matter of Schwartz, 2011-NMSC-019, ¶ 21, 149 N.M. 721, 255 P.3d 299 (noting that
9 improper rulings are not grounds for recusal).
10 ISSUE D
11 {7} Petitioner argues that the district court erred in refusing to disqualify
12 Respondent’s counsel because he was a witness to the alleged fraudulent conduct that
13 occurred during the divorce proceedings. [MIO 10] Petitioner states that counsel was
14 involved in the party’s two previous divorces and therefore was a witness to
15 inequitable treatment and a possible co-conspirator. Even if we assume that
16 Respondent’s counsel was a witness to fraud or inequity, this argument is only
17 relevant to the Rule 1-060(B)(3) claim, which was not timely, and therefore it was
18 never necessary to consider him as a witness.
4
1 {8} For the reasons set forth above, we affirm.
2 {9} IT IS SO ORDERED.
3 ________________________________
4 JAMES J. WECHSLER, Judge
5 WE CONCUR:
6 ________________________________
7 RODERICK T. KENNEDY, Chief Judge
8 ________________________________
9 CYNTHIA A. FRY, Judge
5