Gilmore v. Gilmore

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-013

Filing Date: December 15, 2009

Docket No. 28,486

BENAE FRANCINE GILMORE
n/k/a/ BENAE FRANCINE ROCHIN,

Petitioner-Appellee,

v.

EDWIN JAMES GILMORE,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
James T. Martin, District Judge

Atkinson & Kelsey, P.A.
Patrick L. McDaniel
Albuquerque, NM 87190

for Appellee

Kretek Law Office, LLC
Charles C. Kretek
Deming, NM

for Appellant

OPINION

SUTIN, Judge.

{1} This case involves the division of retirement benefits between Benae Francine
Gilmore (Wife) and Edwin James Gilmore (Husband) under a State of New Mexico defined
benefits plan. A California court granted the parties’ divorce through a default judgment in
1994 and issued a qualified domestic relations order (the QDRO) in 2006 awarding Wife a
portion of the benefits under a formula that was based on the time-rule method of calculating
Wife’s community share. After the California court set aside its 1994 judgment as to all its

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provisions except the portion dissolving the marriage and also set aside the QDRO in its
entirety for lack of personal jurisdiction, Wife sought to divide the retirement benefits in
New Mexico pursuant to NMSA 1978, Section 40-4-20 (1993), which allows post-divorce
division of undivided community assets. Under the impression that New Mexico required
the use of the time rule and therefore using that formula, the district court divided the
benefits and rejected Husband’s various affirmative defenses. We hold that the district court
did not err in rejecting Husband’s affirmative defenses. Because New Mexico does not
require or automatically use the time rule as a default method to divide retirement benefits
when the parties do not agree to a specific method, we reverse the court’s use of the time rule
and remand for further proceedings consistent with this opinion.

BACKGROUND

{2} The parties were married on October 6, 1981. In October 1984, Husband began
employment as a police officer with the City of Deming, New Mexico, and remained in this
position through the duration of the marriage. As a state employee, Husband was eligible
to participate in the state’s defined benefit retirement plan administered by the Public
Employees Retirement Association of New Mexico (the PERA administrator) under the
Public Employees Retirement Act (the PERA). NMSA 1978, §§ 10-11-1 to -142 (1987, as
amended through 2009). Husband filed for divorce in New Mexico sometime in 1994, but
on June 9, 1994, the Superior Court of California, County of Yuba, where Wife had filed for
divorce in 1991, granted Wife a divorce through a default judgment. It appears that when
the New Mexico court was notified of the California divorce, Husband’s divorce action was
dismissed.

{3} In January 1999, Husband was hired by the Luna County, New Mexico, Sheriff’s
Department as an undersheriff, where he received an increase in salary. In 2000 Husband
became the director of the Luna County Detention Center, which resulted in a significant
increase in salary and in the value of Husband’s retirement benefits under the PERA (PERA
benefits). Husband remarried in 2001 and divorced in January 2005 by a decree that
included a $15,000 lump-sum payment to that wife for her share of the community interest
in Husband’s PERA benefits. Husband retired in March 2005 and began receiving PERA
benefits on April 1, 2005.

{4} Wife obtained the QDRO in June 2006 from the Superior Court of California
dividing Husband’s PERA benefits. However, in October 2006, upon Husband’s motion,
that same California court set aside its 1994 judgment as to all its provisions except the
portion dissolving the marriage and also set aside the QDRO in its entirety for lack of
personal jurisdiction over Husband. In February and March 2007, Wife filed a motion and

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an amended motion in the Luna County District Court to divide the PERA benefits under
Section 40-4-20.1 Section 40-4-20(A) provides:

The failure to divide or distribute property on the entry of a decree of
dissolution of marriage or of separation shall not affect the property rights of
either the husband or wife, and either may subsequently institute and
prosecute a suit for division and distribution or with reference to any other
matter pertaining thereto that could have been litigated in the original
proceeding for dissolution of marriage or separation.

{5} In his September 2007 response to Wife’s motions, Husband challenged subject
matter jurisdiction and raised the affirmative defenses of res judicata, laches, statute of
limitations, estoppel, waiver, forfeiture, federal preemption, and public policy. Husband also
counterclaimed that the QDRO was obtained under false allegations and requested the court
to order Wife to pay him back the money she received under the QDRO and also to pay
Husband’s attorney fees. The district court heard the matter on October 2, 2007.

{6} At the October 2007 hearing, Wife testified about the prior legal proceedings in
California that (1) Husband was mailed a copy of the divorce decree, (2) even when she had
rejected Husband’s lump-sum settlement offers it was never her intent to waive her rights
to the retirement, and (3) she had worked and helped Husband get started. Husband testified
that he had offered Wife a lump-sum payment and that, although he could pay it over time,
he did not have the ability to pay a lump sum at the time of the October 2007 hearing. He
also testified that Wife was entitled to benefits based on what Husband was earning at the
time of the divorce and that he was entitled to benefits based on his post-divorce earnings
increases.

{7} On December 13, 2007, the district court entered orders denying Husband’s
affirmative defenses and counterclaims and dividing the PERA benefits. The court
determined that it had subject matter jurisdiction to divide the PERA benefits under Section
40-4-20. Further, the court found, for the purpose of calculating arrearages due, that Wife
had an interest in Husband’s PERA benefits “based on the . . . number of years credited
service during the marriage, the total number of years of credited service, and the qualifying
salary levels under the PERA statute.” Accordingly, the court calculated that Wife was
entitled to a community share of $1025.90 per month based on one half of Husband’s gross
monthly pension payments of $4351.66 times the ratio of time of credited service during the
marriage (9.66 years) divided by the total time of credited service (20.5 years). The court
granted Wife a judgment for “arrearages for twenty-nine months . . . through December[]
2007, with the monthly amount of the arrearages to be determined by [the] PERA in

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The parties and the district court in this case treat these motions as instituting a suit as
indicated in Section 40-4-20. For this reason, we refer to this process as “Wife’s action”
in this opinion even though it was initiated by a motion.

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conformity with their policies and formulas” and ordered Husband, commencing October
1, 2007, to pay the arrearage payments directly to Wife by the first of each month “in the
amount to be determined by [the] PERA, with the monthly amount of the arrearage payments
to be determined by [the] PERA in conformity with their policies and formulas.”

{8} The district court rejected Husband’s affirmative defenses of laches, estoppel, waiver,
and forfeiture because Wife “pursued her claim in California and New Mexico and
[Husband] has not been prejudiced.” With respect to Husband’s res judicata defense, the
court found that “no valid order from California or any other state has divided the PERA
retirement.” With regard to Husband’s statute of limitations defense, the court found that
Wife’s “claim lies within the statute of limitations period required by New Mexico law.”
The court denied Husband’s public policy argument because the public policy of New
Mexico is that “community assets should be divided.” Finally, the court denied Husband’s
counterclaims for the amounts paid to Wife under the QDRO and for attorney fees. Husband
filed a motion to reconsider and a brief in support of that motion. On March 6, 2008, the
court set the motion for hearing, and on March 11, 2008, after the motion to reconsider was
automatically denied by operation of law, Husband appealed. On appeal, Husband argues
that the district court erred by concluding it had subject matter jurisdiction and failing to
apply the statute of limitations to bar Wife’s claim; by not allowing him to make a lump-sum
payment to Wife; by denying Husband’s affirmative defenses of laches, equitable estoppel,
and waiver by acquiescence; and by not valuing his retirement benefits as of the time of the
divorce, thereby improperly apportioning to Wife post-divorce benefits increases that he
contends were his separate property.

DISCUSSION

A. Subject Matter Jurisdiction

{9} Husband contends that the district court lacked subject matter jurisdiction for two
reasons. First, Husband argues that Section 40-4-20 applies to undivided assets and,
therefore, the statute cannot confer jurisdiction in the present case because the PERA
benefits were previously divided in the California divorce and were actually distributed
based on the QDRO. Second, Husband relies on Lewis v. Lewis, 106 N.M. 105, 111, 739
P.2d 974, 980 (Ct. App. 1987), and argues that it holds that undivided community property
divided pursuant to Section 40-4-20 must be divided in an action other than the original
divorce action. Husband further argues that because he had initiated a divorce action
seeking division of assets in New Mexico in 1994, Wife’s present action “cannot be
considered independent.” We view these arguments as raising pure legal issues that we
review de novo. Jicarilla Apache Nation v. Rodarte, 2004-NMSC-035, ¶ 24, 136 N.M. 630,
103 P.3d 554.

{10} Husband specifically shows that the California decree of divorce of 1994 included
a provision that divided the PERA benefits and awarded Wife one half of Husband’s PERA
benefits with the City of Deming. Furthermore, Husband shows that the same California

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court later issued the QDRO. Even though the provision of the California decree dividing
the retirement and the QDRO were subsequently set aside, Husband reasons that Wife
“sought to and did divide [Husband’s] PERA retirement benefit.” Husband also points to
his earlier New Mexico proceeding in which he sought to divide assets and debts. Thus,
Husband argues, the district court in the present case erred in determining that it had subject
matter jurisdiction because the PERA benefits were already divided. We are not persuaded
and conclude that the district court had subject matter jurisdiction to hear this case under
Section 40-4-20.

{11} As to Husband’s argument that the PERA benefits were not an undivided asset, the
California court recognized its own lack of personal jurisdiction to divide the benefits and
set aside all the provisions of its 1994 default judgment, except the portion dissolving the
marriage. It also set aside the QDRO in its entirety. The California court order dividing the
PERA benefits was without force or effect since that court lacked jurisdiction to make any
division. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 17, 145 N.M. 58, 193 P.3d 605 (stating that
a default judgment where a district court lacks personal jurisdiction in an in personam action
is void). The PERA benefits were therefore an undivided asset when Wife sought to divide
them in the 2007 New Mexico action.

{12} Husband’s argument that Wife’s action is not an independent action is also without
merit. Citing Zarges v. Zarges, 79 N.M. 494, 445 P.2d 97 (1968), the Lewis Court
concluded that “property divided pursuant to Section 40-4-20 must be divided in an
independent action.” Lewis, 106 N.M. at 111, 739 P.2d at 980 (emphasis omitted). In
Zarges, our Supreme Court dealt with a situation in which the wife, instead of filing a
complaint to start a different lawsuit under the equivalent of Section 40-4-20, sought to
reopen the divorce action to divide community property twenty months after the action was
finalized. Zarges, 79 N.M. at 494-97, 445 P.2d at 97-100. In reversing the district court’s
decision to divide the community property under these circumstances, the Court noted that
to allow the wife to “breathe new life into” the divorce action where the district court had
exhausted its jurisdiction would require “that we either relax our holdings concerning
termination of jurisdiction . . . or that we disregard the rules and statutes applicable to
commencement of actions.” Id. at 496-97, 445 at 99-100. We determine that the present
case is an independent action under Section 40-4-20. This matter is an altogether different
case than the California divorce and Husband’s 1994 New Mexico divorce proceeding.

B. Statute of Limitations

{13} Husband contends that the district court erred in concluding that Wife’s action was
not barred by the four-year statute of limitations in NMSA 1978, Section 37-1-4 (1880).
Where facts relevant to a statute of limitations are undisputed, the standard of review is
whether the court correctly applied the law to the undisputed facts. State v. Kerby, 2007-
NMSC-014, ¶ 11, 141 N.M. 413, 156 P.3d 704; Jaramillo v. Gonzales, 2002-NMCA-072,
¶ 8, 132 N.M. 459, 50 P.3d 554 (noting that “[w]e review de novo whether a particular

5
statute of limitations applies”). We review questions of law de novo. Kerby, 2007-NMSC-
014, ¶ 11.

{14} Husband argues that the relevant date to commence a lawsuit to divide retirement
benefits for statute of limitation purposes is the date of divorce regardless of vesting or
maturation because, as stated in several New Mexico cases, the right to divide retirement
benefits arises at the time of divorce. See, e.g., Copeland v. Copeland, 91 N.M. 409, 412-13,
575 P.2d 99, 102-03 (1978) (holding that vested retirement rights earned during the marriage
are a community asset subject to division at time of divorce, even though the husband has
not yet retired); see also Ruggles v. Ruggles, 116 N.M. 52, 58, 860 P.2d 182, 188 (1993) (“In
Hurley [v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980), overruled on other grounds by
Ellsworth v. Ellsworth, 97 N.M. 133, 637 P.2d 564 (1981),] we simply reaffirmed the
Copeland principle that a spouse is entitled to his or her community share of that portion of
a retirement plan which is vested but unmatured as of the date of divorce.”). We reject
Husband’s argument.

{15} There are two types of divorces. A unified divorce is where “property division
judgments [are] simultaneous with the divorce decree.” Lewis, 106 N.M. at 109-10, 739
P.2d at 978-79. A bifurcated divorce is “where a partial decree of divorce is entered before
the division of community property.” Id. at 110, 739 P.2d at 979. The cases that Husband
cites to support his argument that community property is to be divided according to its value
on the date of divorce involve unified divorce situations. See id. at 109-10, 739 P.2d at 978-
79. Upon entry of a partial decree in a bifurcated divorce, the undivided community
property automatically changes from community property to property that the parties hold
as tenants in common. See id. at 109, 739 P.2d at 978; see also Jones v. Tate, 68 N.M. 258,
262, 360 P.2d 920, 923 (1961) (“Upon the divorce of the parties[,] all community property
not divided between them did not remain community property but became property which
they held as tenants in common.”); In re Miller’s Estate, 44 N.M. 214, 220, 100 P.2d 908,
912 (1940) (recognizing that marital status ends simultaneously upon the signing of a
divorce decree and stating that “[t]he community property becomes their property as though
it had been held by them as tenants in common”). Under Plaatje v. Plaatje, the four-year
statute of limitations in Section 37-1-4 applies to actions seeking to divide undivided
community property after the divorce. Plaatje, 95 N.M. 789, 790, 626 P.2d 1286, 1287
(1981) (holding that the four-year statute of limitations of Section 37-1-4 applies to suits to
divide personal property brought under Section 40-4-20). However, we have identified two
circumstances in which the four-year statute of limitations will not apply to a division of
undivided assets under Section 40-4-20, namely, when the asset consists of retirement
benefits and when the asset is real property. See Plaatje, 95 N.M. at 790-91, 626 P.2d at
1287-88 (concluding that the wife was not barred by the four-year statute of limitations from
maintaining an action against the husband for her share of retirement benefits); Martinez v.
Martinez, 2004-NMCA-007, ¶ 18, 135 N.M. 11, 83 P.3d 298 (filed 2003) (concluding that
the four-year statute of limitations does not apply to divisions of undivided real property
under Section 40-4-20).

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{16} The reason these two types of property held by the parties as tenants in common are
not subject to the four-year statute of limitations in Section 37-1-4 is because the parties
have special protections under the law with regard to these types of property. In regard to
real property, the Martinez Court noted that “[s]ince a cause of action for partition is a
continuing one while the cotenancy exists, there generally is no limitations period for
bringing a petition for partition.” 2004-NMCA-007, ¶ 18 (alteration in original) (internal
quotation marks and citation omitted). The Martinez Court concluded that because “[t]here
is nothing about the bare holding of title that should equate to the accrual of a cause of action
that triggers a time limitation on the right to seek partition[,] . . . [and the wife] would be
subject to a limitations period only if her cotenant did ‘something which amounts to an
ouster,’” the four-year statute of limitations did not apply to the wife’s action seeking
accounting and partition of real property. Id. ¶ 19 (citation omitted). In regard to retirement
benefit plans, this type of property is different than other types of personal property because
the employee spouse receives the benefits in monthly installments. Plaatje, 95 N.M. at 790-
91, 626 P.2d at 1287-88. The Plaatje Court concluded that a cause of action accrues when
the installment becomes due and thus the statutory time limitation upon the non-employee
spouse’s “right to sue for her portion of each installment commences to run from the time
each installment comes due.” Id.

{17} Husband argues that Plaatje is distinguishable because in that case the husband’s
retirement benefits were not divided in the original divorce action, and the first time the wife
asserted any claim was five years later. In the case at hand, as Husband points out, Wife
asserted her claim in her California dissolution action. Husband argues that the California
court having set aside the portions of the decree dividing the retirement and the QDRO is
irrelevant to a determination regarding the statute of limitations. Husband’s argument is
unclear, but it appears to be that Wife had four years to domesticate the decree in New
Mexico or send it to the PERA administrator to secure her claim. We are not persuaded.

{18} Because the California division was void, it did not effectively divide the PERA
benefits. See Ortiz, 2008-NMCA-136, ¶ 17 (recognizing that a default judgment where a
district court lacks personal jurisdiction in an in personam action is void). Wife’s action
under Section 40-4-20 to divide the undivided retirement is the proper way to seek division
of the benefits in this bifurcated divorce. Because the action was instituted when Husband
received the monthly installments, the cause of action accrued when each installment became
due. See Berry v. Meadows, 103 N.M. 761, 769-70, 713 P.2d 1017, 1025-26 (Ct. App. 1986)
(citing Plaatje to conclude that “[t]he right to receive each monthly installment accrued
when each installment became due; thus, [the] wife’s right to recover her portion of each
installment commences to run from the time each installment is payable”). Following the
reasoning of Plaatje, we conclude that because Husband’s PERA benefits are paid in
monthly installments, Wife’s right to bring an action under Section 40-4-20 to divide the
undivided PERA benefits received by Husband accrued, for statute of limitations purposes,
with each installment when that installment was due, rather than at the time of the divorce.
Thus, Wife’s action was not barred by the statute of limitations.

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C. Equitable Division of Other Assets

{19} Next, Husband claims that the district court erred in not rendering an equitable
division of the entire marital estate. However, Husband never moved the court for a division
of undivided community property and debts under Section 40-4-20 for either real or personal
property. The basis for Husband’s argument appears to arise from exchanges in the October
2007 hearing. At the hearing, Husband’s attorney asked Wife if she had filed bankruptcy,
and Wife’s attorney objected as to the relevancy of the question. In his brief in chief,
Husband argues that his attorney’s response to that objection was that the question was
relevant because “the avoidance or discharge of marital debts by [Wife] in any bankruptcy
proceeding is relevant and material to a determination of the marital estate and in
determining the property kept by and debts assumed by the parties and in the absence of such
evidence, no equitable division of the marital estate, including an equitable division of the
community interest in [Husband’s] PERA retirement benefits could be rendered by the
[d]istrict [c]ourt.” Thus, Husband concludes, the court’s sustaining of the objection “further
prohibited [him] from pursuing questions regarding the community debts and assets of the
parties.” A review of the October 2007 hearing reveals that the exchange went specifically
as follows.

Mr. Kretek: Okay. Have you ever filed a bankruptcy, Ms. Rochin?

Wife: Yes, I did . . . .

Mr. McDaniel: Objection, relevance.

Mr. Kretek: Your honor it’s relevant, she didn’t claim [the retirement] as an
asset and now she is claiming it is something she never intended to give up.

Mr. McDaniel: That would not constitute waiver under law in any case your
honor.

....

Mr. McDaniel: Your honor that, that’s irrelevant it wouldn’t count, it
. . . definitely relates to any of these so called affirmative defenses, it
wouldn’t as a matter of law constitute a waiver in any case.

Court: Objection sustained.

Mr. Kretek: Okay. That’s all I have your honor.

This exchange came up in a “waiver of rights” context as suggested by Husband’s counsel’s
response to Wife’s counsel’s objection. Husband’s counsel is essentially indicating that

8
Wife’s answer would show she intended to give up the retirement since it was not claimed
as an asset in the bankruptcy.

{20} We see nothing to indicate that Husband was seeking equitable division of other
undivided community assets during this exchange. We conclude that Husband did not seek
a division of undivided assets at the October 2007 hearing and cannot now complain that the
district court’s ruling erroneously denied Husband the right to have the undivided assets
divided. Thus, the only issue properly before the district court was the division of the PERA
benefits requested by Wife.

D. Lump Sum Versus Pay As It Comes In

{21} Husband argues that once the district court determined the value of Wife’s interest
in the PERA benefits, the proper way to have divided the benefits was a lump-sum payment.
Whether the correct law has been applied and whether the district court accurately applied
the law to the facts are reviewed de novo. In re N.M. Indirect Purchasers Microsoft Corp.,
2007-NMCA-007, ¶ 6, 140 N.M. 879, 149 P.3d 976 (filed 2006).

{22} Husband contends that under Ruggles, the proper manner of dividing the community
interest in a party’s retirement benefits is to value, divide, and distribute the interest through
a lump-sum payment. In Ruggles, our Supreme Court indicated that the preferred method
to distribute retirement benefits upon divorce is to “value, divide, and distribute them (or
other assets with equivalent value) to the divorcing spouses” as a lump-sum payment. 116
N.M. at 54-55, 860 P.2d at 184-85. The Court also discussed some of the disadvantages of
the pay-as-it-comes-in method of distribution; nevertheless, the Court acknowledged that
under some circumstances, when the lump-sum method is not possible or practicable, other
methods, including the pay-as-it-comes-in method, may be utilized. Id. “One such occasion
will arise when the court has no satisfactory evidence upon which to make a finding of
present value. Another will relate to the parties’ financial circumstances: If there are no
other assets, or insufficient assets, or unsuitable assets, with which to satisfy (or secure) a
lump[-]sum distribution, the court may be forced to award the non[-] employee spouse’s
share as it comes in.” Id. at 67, 860 P.2d at 197 (internal quotation marks omitted).

{23} In the instant case, the only evidence before the district court was that Husband had
offered to buy out Wife through a $5000 lump-sum payment, but that he did not have the
ability to pay a lump sum at the time of the October 2007 hearing and would have to pay it
over time. Under these circumstances, the district court did not abuse its discretion by
awarding Wife her share of the PERA benefits under a pay-as-it-comes-in method.

E. Laches, Equitable Estoppel, and Waiver by Acquiescence

{24} Husband argues on appeal that the district court erred by denying his laches,
equitable estoppel, and waiver-by-acquiescence defenses. He argues that there was
sufficient evidence to support these affirmative defenses. The district court rejected these

9
affirmative defenses because Wife “pursued her claim in California and New Mexico and
[Husband] has not been prejudiced.” Husband had the burden of proof on these defenses.
See J.A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 294, 404 P.2d 122, 124 (1965) (“[I]t
is well settled that the party alleging the affirmative has the burden of proof.”). “We review
a trial court’s decision to grant or deny equitable relief for abuse of discretion. Where the
court’s discretion is fact-based, we must look at the facts relied on by the trial court as a
basis for the exercise of its discretion, to determine if these facts are supported by substantial
evidence.” Vigil v. Fogerson, 2006-NMCA-010, ¶ 56, 138 N.M. 822, 126 P.3d 1186 (filed
2005) (internal quotation marks and citations omitted). “An abuse of discretion occurs when
a ruling is clearly contrary to the logical conclusions demanded by the facts and
circumstances of the case.” Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d
153. The evidence is viewed in the light most favorable to the ruling of the district court.
See Berry, 103 N.M. at 769, 713 P.2d at 1025.

{25} The elements of laches are:

(1) conduct on the part of another which forms the basis for the litigation in
question; (2) delay in the assertion of the complaining party’s rights; (3) lack
of knowledge or notice on the part of the defendant that the complaining
party would assert such rights; and (4) injury or prejudice to the defendant
in the event relief is accorded to the complaining party or the suit is not
barred.

Vill. of Wagon Mound v. Mora Trust, 2003-NMCA-035, ¶ 35, 133 N.M. 373, 62 P.3d 1255
(filed 2002) (internal quotation marks and citation omitted).

{26} To establish equitable estoppel, Husband was required to show:

(1) [c]onduct which amounts to a false representation or concealment of
material facts, or, at least, which is calculated to convey the impression that
the facts are otherwise than, and inconsistent with, those which the party
subsequently attempts to assert; (2) intention, or at least expectation, that
such conduct shall be acted upon by the other party; (3) knowledge, actual
or constructive, of the real facts.

Mannick v. Wakeland, 2005-NMCA-098, ¶ 29, 138 N.M. 113, 117 P.3d 919 (filed 2004)
(alteration in original) (internal quotation marks and citation omitted), aff’d but criticized by
Coppler & Mannick, P.C. v. Wakeland, 2005-NMSC-022, 138 N.M. 108, 117 P.3d 914.

{27} Waiver by acquiescence may arise “where the evidence shows the existence of an
agreement . . . supported by consideration, and where the agreement has been acquiesced in
over a period of time under circumstances giving rise to estoppel.” Sisneroz v. Polanco,
1999-NMCA-039, ¶ 12, 126 N.M. 779, 975 P.2d 392 (omission in original) (internal
quotation marks and citation omitted). Furthermore, an enforceable waiver cannot be

10
inferred absent proof of an express agreement except where there are unequivocal acts or
conduct showing an intent to waive. Id. ¶ 13. “[I]n no case will a waiver be presumed or
implied . . . unless, by his conduct, the opposite party has been misled, to his prejudice, into
the honest belief that such waiver was intended or consented to.” Id. (internal quotation
marks and citation omitted).

{28} We will discuss each of these defenses separately; however, we note that the
following evidence is relevant with regard to each of the defenses. At the October 2007
hearing, Husband testified that on one occasion, around the time of his subsequent divorce,
Wife was angry and told him that “she didn’t want any money of that damn retirement.” To
show his unawareness that Wife would assert a claim for a share of the PERA benefits after
Wife’s alleged statement, Husband relies on his decision to pay a lump sum of $15,000 to
his subsequent wife for her share of the community interest based on the full value of the
pension. Husband also testified that after Wife had told him she did not want any of the
retirement, he attempted further settlement negotiations with Wife before his retirement.
Finally, Husband asserts he was prejudiced by being “forced” to choose Option A under the
PERA, which paid the maximum monthly payments, due to Wife’s “failure to perfect her
claim.” Alternatively, Husband could have selected Options B or C, which pay less but
allow the member to designate a survivor beneficiary and are only available to members with
spouses or former spouses. Husband also asserts prejudice due to his paying his subsequent
wife for her share of the community interest based on the full value of the pension without
accounting for a subsequent claim by Wife.

{29} On the other hand, Wife testified that she pursued her interest in the retirement as
soon as she thought she could when Husband retired. She testified that between 2005 and
2007 she rejected Husband’s offers to settle for a lump-sum payment of $5000 or $200 per
month. Wife also testified that she never engaged in negotiations with Husband or his
attorney in terms of waiving her interest in the PERA benefits, that she did not sign anything
waiving her interest, and that it was never her intent to waive her marital interest in the
PERA benefits.

1. Laches

{30} Based on Wife’s testimony that she asserted her rights as soon as Husband retired,
there was sufficient evidence for the district court to find that delay in the assertion, the
second element of laches, was not met. Moreover, Husband does not cite any New Mexico
or any other authority indicating that Wife was required to send a copy of the California
decree to the PERA administrator or domesticate the California divorce in New Mexico
within a certain amount of time in order “to secure her interest.” Also, Wife testified that
she rejected Husband’s offers to settle for a lump sum or $200 per month, and Husband
testified that he continued to try to settle with Wife even after her alleged statement giving
up her right to the retirement around the time of Husband’s subsequent divorce, which would
allow the district court to reasonably find that Husband did not lack knowledge that Wife
would pursue her interest in the retirement at the time Husband retired. The court could

11
conclude that Husband did not show lack of knowledge or notice on his part that Wife would
assert her rights to meet the third element of laches. We do not reach whether there was
sufficient evidence for the district court’s finding that there was no prejudice because
Husband failed to prove the second and third elements of laches. See Thomas v. Pigman, 77
N.M. 521, 522-23, 424 P.2d 799, 800 (1967) (affirming the district court’s denial of a laches
defense because the defendant failed to prove two out of the four elements of laches); see
also Letson v. Liberty Mut. Ins. Co., 523 F. Supp. 1221, 1225 n.5 (D.C. Ga. 1981) (“Since
there was no delay, the issue of prejudice to the defendant is moot.”).

2. Equitable Estoppel

{31} As to the first element of equitable estoppel, conduct that amounts to a false
representation or concealment of material facts, Husband argues that because Wife stated she
did not want any of his retirement and she ignored Husband’s attempts to negotiate a
settlement, Wife “falsely represented [her] secret intent to assert her claim.” Wife having
obtained the QDRO without giving him proper notice, Husband argues, is further evidence
of Wife’s undisclosed intent to assert her claim to the PERA benefits despite her alleged
statement and actions that she did not want any of the benefits.

{32} With regard to the second element of estoppel, intention or at least expectation that
such conduct shall be acted upon by the other party, Husband argues that not only did Wife
have exclusive knowledge of her intent to pursue a claim, but “she went to great lengths to
hide that knowledge from [Husband].” Husband further argues that the QDRO, without
proper service, notice, or his advance knowledge, supports this point. Finally, as to the third
element of estoppel, knowledge, actual or constructive, of the real facts, Husband contends
that Wife not only should have known but in fact knew that Husband was relying on her
statement. Husband notes that Wife knew about his subsequent divorce and that he was
going to have to buy his subsequent wife out of his retirement. Because Wife had already
told him that she did not want any of the retirement, Husband argues, she should have known
that he would rely on that when paying out a lump sum to his subsequent wife. Husband
also argues that Wife was informed, shortly after his subsequent divorce, that he would be
retiring and she did not assert her claim until after she obtained the QDRO.

{33} The district court concluded that Wife had pursued her claim in California and New
Mexico and that Husband had not been prejudiced. Based on the evidence before the court
that Wife did not intend to give up her rights, that she asserted her rights as soon as she
thought she was allowed to do so, that she rejected Husband’s settlement offers, and that she
received payments only after Husband had already began receiving his installments, there
was sufficient evidence for the court to find that estoppel did not bar Wife from asserting her
claim.

3. Waiver by Acquiescence

12
{34} Husband argues that because Wife took no action to assert her claim to the retirement
from 1994 until 2006, made statements that she would not be asserting her claim, and
ignored or rejected all of Husband’s settlement offers, she waived her rights to the
retirement. An enforceable waiver cannot be inferred absent proof of an express agreement
except when unequivocal acts or conduct showing an intent to waive are shown. Sisneroz,
1999-NMCA-039, ¶ 13. In no case will a waiver be presumed or implied unless Wife’s
actions misled Husband “to his prejudice, into the honest belief that such waiver was
intended or consented to.” Id. (internal quotation marks and citation omitted).

{35} Here, there was sufficient evidence to support the district court’s conclusion that
Wife did not waive her rights to the PERA benefits. Wife testified that she rejected
Husband’s offers to settle for a lump-sum payment of $5000 or $200 per month. As
mentioned earlier in this opinion, Wife also testified that she never engaged in negotiations
with Husband or his attorney in terms of waiving her interest in the PERA benefits, that she
did not sign anything waiving her interest, and that it was never her intent to waive her
marital interest in the PERA benefits. Moreover, the district court was free to disbelieve that
Husband honestly relied on Wife giving up her interest under the circumstances in which she
stated that “she didn’t want any money of that damn retirement,” when Husband continued
his attempts to settle with her even after the alleged statement. See Santa Fe Pac. Gold
Corp. v. United Nuclear Corp., 2007-NMCA-133, ¶ 33, 143 N.M. 215, 175 P.3d 309
(holding that questions of credibility are reserved for the district court as fact finder). We
conclude that the district court did not err in its conclusion that Wife did not waive her rights
to the PERA benefits.

F. The Issue of How to Calculate Retirement Benefits

{36} Husband argues that the district court’s determination that Wife was entitled to a
share of Husband’s PERA benefits based on his 2005 salary and benefit level rather than on
his 1994 salary and benefit level was erroneous because it unfairly awarded Wife a portion
of Husband’s separate post-divorce increases. Because in New Mexico, absent an agreement
regarding calculation of benefits, there is no set rule for determining every case involving
the division of retirement benefits, it appears that the district court is to exercise its wisdom,
sound reasoning, and sound discretion to divide this asset. See Copeland, 91 N.M. at 413,
575 P.2d at 103 (recognizing that “[t]here can be no set rule for determining every case and
as in all other cases of property distribution, the trial court must exercise a wise and sound
discretion” (internal quotation marks and citation omitted)). We may characterize a
discretionary decision “premised on a misapprehension of the law” as an abuse of discretion.
N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d
450 (internal quotation marks and citation omitted). “[E]ven when we review for an abuse
of discretion, our review of the application of the law to the facts is conducted de novo.” Id.
(internal quotation marks and citation omitted).

{37} The record reflects that the district court was evidently under the impression that the
PERA required the use of what is known as the time rule. When Wife rested her case in the

13
October 2007 hearing, Husband’s counsel requested that Wife’s motion be dismissed, but
the court denied the request and added, “I think there is sufficient evidence in the record to
establish during the course of the marriage he worked for the Deming Police Department and
accumulated a retirement, PERA, as to the value of that retirement it is to be subject to a
mathematical calculation under the PERA rules, which is number of years of the marriage,
and number of years total worked, or total years of contributions.” In its findings at the end
of the October 2007 hearing, the court ordered a qualified domestic relations order to be
entered “in accordance with the rules established by [the] PERA, which established that the
retirement will be divided by formulation taking into account the number of years of
marriage between the parties, and the total number of years served by [Husband] under the
state retirement plan, and that [Wife] would be entitled to fifty percent of that formulated
percentage.” The court’s impression is understandable given Wife’s counsel’s
representations that the PERA required the time rule to be used.

{38} In his opening statement, Wife’s counsel mentions that the California “PERA order
was entered consistent with New Mexico law.” He told the court that the California default
judgment was “in accordance with New Mexico law, and it would have been in accordance
with California law had there been jurisdiction.” He stated that he worked with the PERA
to “make sure that this was an appropriate order,” which he based on the one that had
previously been entered; that “the calculation was actually performed using the time rule,
that is the formula in use in [the] PERA”; and that when the QDRO “was approved and
entered by [the] PERA, they calculated based on their formula, and this is a statutory
formula.” In closing, Wife’s counsel stated that his draft of a PERA order was actually
approved by the PERA administrator and that he “double checked with them and they did
want the formula approach in there rather than calculation.”

{39} When Wife’s counsel told the court that Wife’s share of Husband’s monthly
payments should be $1025.90, Husband’s counsel protested by asking, “That’s the time
calculation . . . correct?” He also asked, “there are two approaches, and you are saying [the]
PERA preferred the time approach?” Wife’s counsel replied, “That’s their calculation using
the time rule.” Wife’s counsel further stated that “it would come out to the same thing, but
this is their calculation.” After this exchange, the court simply stated, “I’m using the time
rule.” During the hearing, there was no discussion about the fact that the PERA has no rule
and there is no law requiring use of the time rule, or that pursuant to the PERA, there existed
instructions for lawyers to use in drafting benefits division-related documents and that those
instructions merely indicated that the time rule was a possible formula or methodology that
could be considered. See PERA, Attorney Instructions: Model Order Dividing PERA
Retirement Benefits, at 3-4, available at http://www.pera.state.nm.us/forms/
AttyInstOrderDivPERABen.pdf.2

2
On June 11, 2009, this model order with instructions was available on-line at
http://www.pera.state.nm.us.

14
{40} The time rule is a method for calculating a non-employee spouse’s share of a
retirement plan. “The time-rule calculation first takes the number of months that [the
employee spouse] was participating in the plan during marriage and divides that number by
the number of total months of employment during which [the employee spouse] was covered
under the plan. The result of that calculation is then multiplied by the total amount of
retirement benefits and then that number is divided by two.” English v. English, 118 N.M.
170, 176, 879 P.2d 802, 808 (Ct. App. 1994). The “ratio of community service years to total
service years is multiplied against the amount of benefit the participant receives at retirement
. . . even though that date may be after the divorce.” Thomas C. Montoya, N.M. Domestic
Relations Law and Forms (1st ed., Lexis Law Publishing 1997) (1996) at § 7.114 (emphasis
omitted).

{41} Jurisdictions that follow the time rule reason that post-divorce increases are built on
the marital foundation. See Gemma v. Gemma, 778 P.2d 429, 431 (Nev. 1989) (stating that
courts that follow the time rule reason that “early contributions to the pension plan, while
smaller, are invested and earned more interest, that the emphasis should be on the qualitative
nature of the community interest as opposed to the quantitative interest, and that the early
working periods are the building blocks to upward mobility and hopefully an increased
salary”). Application of the time rule “appears to work appropriately in a limited situation”
where: “(1) the benefit holder was married at the inception of the benefit plan participation,
and (2) the benefit holder experiences only standard inflation raises and promotions
throughout the benefit plan participation.” Michelle Adams Thuillier, Comment, Divorce
and Defined Benefit Plans: Retiring Twenty-Five Years of Unjust Division in Berry v. Berry,
49 S. Tex. L. Rev. 753, 770 (2008). The following hypothetical illustrates the unfairness of
applying the time rule in certain situations.

[A]ssume a benefit holder begins his or her professional career as a single
person, then, after several years, marries for a couple of years before
divorcing and remaining single until retirement. Under the time rule, this
short marital period of a couple of years will count as a marital foundation
for the future success of the benefit holder and the value of the benefit plan.
In reality, the benefit holder’s foundation was built as a single person. The
time rule’s disregard for this fact results in an infringement on the benefit
holder’s separate property because it allows the non-benefit holder to share
in a fraction of the benefit holder’s inflated, post-divorce, separate property
success.

Id. at 770-71 (footnotes omitted). Along the same lines, attorney instructions provided along
with the PERA model order note that “[i]t is not advisable to use [the time-rule method] if
the marriage was of relatively short duration, especially if the marriage and divorce occurred
very early in the member’s career.” PERA, supra, at 4 (emphasis omitted).

{42} However, contrary to what appears to have been the district court’s impression, the
PERA does not mandate that any specific formula must be used. Rather, the PERA merely

15
indicates that a formula determined by a court may be submitted as part of a court order.
Section 10-11-136 states, in part:

A court of competent jurisdiction, solely for the purposes of effecting
a division of community property in a divorce or legal separation proceeding,
may provide by appropriate order for a determination and division of a
community interest in the pensions or other benefits provided for in the
[PERA]. In so doing, the court shall fix the manner in which warrants shall
be issued, may order direct payments to a person with a community interest
in the pensions or other benefits, may require the election of a specific form
of payment and designation of a specific survivor pension beneficiary, refund
beneficiary or survivor pension beneficiary.

Attorneys drafting orders for division of PERA benefits can request a model order with
instructions. See 2.80.1600.10(C) NMAC (2001). The instructions indicate in bold typeface
that the two sample division methods set out in the instructions are not required by the
PERA, that “[i]t is up to the parties or the court to arrive at a method to be applied to the
particular case,” and, also in bold typeface and in all capital letters, that the time-rule method
“is not required by statute, and is offered only as an example of a commonly used method
of determining the community interest in the gross amount of pension or contributions.”
PERA, supra, at 3-4 (emphasis omitted).

{43} The time rule used by the PERA administrator when Wife obtained the California
QDRO came from the California court; it was not required under the PERA. Although it
appears that California courts have judicial discretion in selecting a method to divide
retirement benefits absent an agreement by the parties, their most commonly used method
is the time rule. See In re Marriage of Adams, 64 Cal. App. 3d 181, 187 (1976); see also In
re Marriage of Lehman, 18 Cal. 4th 169, 187 (1998) (stating that the time rule is the most
frequently employed method to apportion retirement benefits). The reasoning underlying
the district court’s use of the time rule in the instant case was faulty and because of that we
cannot affirm the court’s use of the time rule.

{44} Courts that use the time rule seem to be careful to attribute to the employee spouse
post-divorce increases that are the result of the employee spouse’s separate singular effort.
See, e.g., Adams, 64 Cal. App. 3d at 187 n.8 (“[W]e can envision an increase in benefits after
separation that might be caused solely by the employee spouse’s earnings. In such a case[,]
it would be an abuse of discretion to give a portion of the increase to the community.”). To
accomplish a more equitable division under the time rule, Nevada courts afford the employee
spouse an opportunity to show whether extraordinary post-divorce increases are due to his
or her sole separate effort in order to determine whether the non-employee spouse is entitled
to a share of those assets. See Fondi v. Fondi, 802 P.2d 1264, 1266 (Nev. 1990) (“[A]
substantial increase in retirement benefits might be almost completely due to work or
achievement after the marriage. . . . [S]uch an extraordinary increase in benefits might occur
where the employee spouse attains a significantly higher-paying position while remaining

16
within the coverage of the same pension plan, either through earning a post-divorce degree,
or transfer within the company to an unrelated area of service. Such a situation . . . stood in
sharp contrast to the usual one, where the employee’s wage increases were simply due to a
rise in the cost of living, or a gradual movement up the corporate ladder.” (citations
omitted)). When a Nevada district court finds that the employee spouse’s post-divorce
increases are due to extraordinary separate effort, the court calculates a hypothetical gross
monthly retirement payment that the employee spouse would have received in the absence
of the extraordinary post-divorce increases. Id. at 1266-67. To determine this hypothetical
gross monthly retirement payment, instead of using the employee spouse’s actual final
average salary, the court uses a hypothetical “highest income the employee spouse would
have received under the normal course of events, this being ordinary promotions and cost
increases.” Id. (internal quotation marks and citation omitted). It is from this supposed
gross monthly retirement payment that would have resulted if the employee spouse had only
received ordinary promotions and cost increases that the court ascertains and apportions to
the non-employee spouse his or her share of the benefits using the time rule. Id. Thus, under
this Nevada approach the variable is not the fraction or ratio portion of the time rule but what
average salary the court can use to determine a hypothetical monthly benefit payment.

{45} The Adams court mentions a different method to divide retirement benefits known
as the “insurance apportionment rule,” where the plan is divided applying “a percentage
based upon the amounts paid into the fund during marriage as a percentage of total amounts
paid.” See Adams, 64 Cal. App. 3d at 186 n.6. A similar approach also appears to be
suggested in the PERA model order where the non-employee spouse may receive a
“[percentage] of the gross retirement benefits or contributions accrued in [the employee
spouse’s] name [as] community property.” See PERA, supra, at 4 (stating that this method
is often used if the employee spouse is retired and also “if the parties or the court determines
the percentage of the total pension that will be designated as community property when the
[employee spouse] retires”).

{46} There is yet another method used by Texas courts that includes a formula that
calculates the community interest by using the date of divorce as opposed to the date of
retirement. See Berry v. Berry, 647 S.W.2d 945, 946-47 (Tex. 1983). We refer to this as the
Berry method. Under the Berry method, the court is to value the interest as if the employee
spouse would have retired on the date of divorce. Thuillier, supra, at 759-60. In order to
calculate the amount of retirement benefits that the employee spouse would have received
at divorce, the court uses the employee’s average salary at the time of divorce. See id. at
760-62; see also Berry, 647 S.W.2d at 946-47 (concluding that “the employee’s interest in
[the] plan[] was community property, and that as of the date of the divorce, [the wife was]
entitled to one[]half of the value” (internal quotation marks and citation omitted)). The court
then calculates the non-employee spouse’s share as one half of:

Benefits as if retired at divorce X time of service during marriage
time of service credit up to divorce

17
See Thuillier, supra, at 760-62.

{47} Use of different approaches can significantly change the non-employee spouse’s
share of retirement benefits. For instance, assuming without deciding that Husband’s
testimony was accurate, Husband’s monthly salary at the time of divorce was $1868, which
would have generated monthly retirement benefit payments of $631.38. Since the entire
number of years Husband participated in the plan while married and the number of years of
participation until the divorce are both 9.6 years, the ratio equals one or one hundred percent.
In other words, all of the benefits up until the divorce were community property. Wife
would be entitled to one half of the $631.38, which equals $315.69. In contrast, because
Husband earned significantly more money after divorce and to the point of his retirement,
using the time rule would result in a $1025.90 monthly share for Wife.

{48} The issue of what formula or method of calculation to default to in a situation where,
like here, there was a default divorce and the parties never agreed to a division of retirement
benefits has not been decided in New Mexico. Unlike our recent opinion in Garcia v.
Garcia, 2009-NMCA-___, ___N.M.___, ___P.3d___ (No. 28,106, Oct. 30, 2009), the
district court in the present case did not even have an ambiguous agreement to interpret to
attempt to arrive at an appropriate calculation of benefits. The divorce in the present case
was granted through a default judgment, and the California court set aside its time-rule-based
division of the PERA benefits.

{49} Husband relies on Franklin v. Franklin, 116 N.M. 11, 17, 859 P.2d 479, 485 (Ct.
App. 1993), to support his position that the court should have used the date of divorce to
calculate Wife’s share of the PERA benefits. We have described in Garcia why we limit
Franklin to its peculiar circumstances and why we did not consider it controlling in that case.
See Garcia, 2009-NMCA-___, ¶¶ 45-48. For the same reasons, we do not think Franklin
controls our analysis or decision in the present case.

{50} Franklin does not provide any one particular rule or formula or methodology that
must be followed in instances in which the parties have not agreed to a formula or method
for calculating the community share of retirement benefits. Nevertheless because of how
Franklin resolved the calculation issue, one might argue that, at the very least, Franklin can
be read to indicate that, absent any agreed-upon method or formula for dividing retirement
benefits, the default for the court is solely to rely on evidence presented by the parties as to
community and separate efforts in order to attempt to determine the non-employee spouse’s
community share of the employee-spouse’s retirement benefits. See 116 N.M. at 15-19, 859
P.2d at 483-87. While to read that into Franklin might too severely limit the court’s
discretion in reaching an equitable division, Franklin does demonstrate that when the parties
have not satisfactorily agreed to a division methodology, the court’s resolution may be
reached by defaulting to a division based on evidence presented by the parties from which
the court can ascertain a demarcation between periods and calculations of ordinary cost of
living increases and periods and calculations based on extraordinary promotions and salary
increases. See id.

18
{51} In addition to Franklin, Husband also relies on Madrid v. Madrid, 101 N.M. 504,
506, 684 P.2d 1169, 1171 (Ct. App. 1984). However, Husband fails to develop his reliance
on Madrid through any analytic detail or argument. Moreover, as we indicate in Garcia,
Franklin did not see Madrid as controlling in pay-as-it-comes-in cases. See Garcia, 2009-
NMCA-___, ¶ 52. Furthermore, it is noteworthy that, unlike in Garcia and the present case,
in Madrid the increases in benefits came long after the husband began receiving benefits and
occurred only as a result of post-divorce company-union negotiations over entitlement to
retirement benefits. See Madrid, 101 N.M. at 505-06, 684 P.2d at 1170-71. Madrid does
not require the court in pay-as-it-comes-in cases to limit the non-employee spouse’s
community share in the employee spouse’s retirement benefits to an amount based on the
employee spouse’s average salaries and the level of benefits at divorce.

{52} As indicated earlier in this opinion, in Copeland, the Court stated that “[t]here can
be no set rule for determining every case and as in all other cases of property distribution,
the trial court must exercise a wise and sound discretion.” 91 N.M. at 413, 575 P.2d at 103
(internal quotation marks and citation omitted). Ruggles repeated and confirmed this
Copeland approach. Ruggles, 116 N.M. at 58, 860 P.2d at 188. In addition, in Ruggles, the
Court stated that “the rule for distribution of a non[-]employee spouse’s interest in a
retirement plan, whatever the rule is, should be applied only in the absence of an agreement
between the spouses on the subject.” Id. at 66, 860 P.2d at 196. Ruggles also noted that
Franklin “illustrates the difficulties that can arise under the reserved jurisdiction method
when it becomes necessary to determine, sometimes long after the date of divorce, the
amount of the non[-]employee spouse’s interest in benefits when the employee spouse
actually retires.” Ruggles, 116 N.M. at 65 n.14, 860 P.2d at 195 n.14. We will not in this
case attempt to provide definite guidelines by which district courts in their mandated purpose
to achieve an equitable result might determine which formula or method of calculation to use
in dividing benefits when the parties have not agreed to a particular formula or methodology.

{53} In the present case, we believe that the district court thought that the time rule was
required under the PERA. It does not appear that the court engaged in analysis and
exercised discretion but, instead, felt bound by what it believed was a statutory mandate.
Neither statute nor case precedent in New Mexico requires or permits the time rule or, for
that matter, any particular rule or method of calculation to be applied as an across-the-board
or automatic-default formula or method of calculation when the parties have no agreement
on how to calculate retirement benefits. It is obvious to us that when there has been no
agreement of the parties and the issue is contested, unless and until our Supreme Court or
Legislature decides that district courts are to default to a particular rule, formula, or
methodology, it is essential for effective appellate review on the issues that the court explain
why it has chosen the formula or method of calculation that it uses. It is also important that
the court explain how it believes that the choice is an equitable and fair one for the parties.
We therefore reverse the district court’s use of the time rule and remand for the court to
reassess how to calculate Wife’s community interest in Husband’s PERA benefits.

CONCLUSION

19
{54} We affirm the district court’s rulings against Husband on all of Husband’s affirmative
defenses. We affirm the court’s adoption of a pay-as-it-comes-in method of distribution
instead of a lump-sum method. We reverse the district court’s determination in regard to the
calculation of Wife’s community interest in Husband’s PERA benefits and remand for
further proceedings consistent with this opinion.

{55} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
ROBERT E. ROBLES, Judge

Topic Index for Gilmore v. Gilmore, No. 28,486

AE APPEAL AND ERROR
AE-RM Remand

CP CIVIL PROCEDURE
CP-AR Affirmative Claims and Defenses
CP-LA Laches
CP-PE Estoppel
CP-TL Time Limitations
CP-WA Waiver

DR DOMESTIC RELATIONS
DR-CU Community Debts
DR-DM Dissolution of Marriage
DR-DP Division of Property
DR-RB Retirement Benefits and Pensions
DR-TL Time Limitations

JD JURISDICTION
JD-PR Personal
JD-SM Subject Matter

20