1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 DONALD B. BEAMS,
8 Petitioner-Appellant,
9 v. NO. 29,400
10 KATHY RHINE,
11 f/k/a KATHY BEAMS,
12 Respondent-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
14 J.C. Robinson, District Judge
15 Donald B. Beams
16 Silver City, NM
17 Pro se Appellant
18 Kathy Rhine
19 Silver City, NM
20 Pro se Appellee
21 MEMORANDUM OPINION
22 CASTILLO, Chief Judge.
23 Appellant Donald Beams (Beams) appeals from a final decree of divorce
1 terminating the bonds of matrimony between Beams and his ex-wife Kathy Rhine
2 (Rhine). The decree divided the parties community and separate property and
3 similarly divided their debts. Beams asks that we vacate several of the district court’s
4 determinations and enter a revised decree. We decline to do so, and we affirm.
5 BACKGROUND
6 Beams and Rhine were married in October 2005. Beams filed a petition for
7 dissolution of marriage from Rhine on January 14, 2008. In the petition, he asked the
8 district court to “make an equitable division of the community and . . . award each
9 party their separate property and impose upon each party their separate debts.” At the
10 time he filed this petition, Beams was represented by counsel. At the time Rhine filed
11 her answer, she was also represented by counsel.
12 In July 2008, Beams’ first attorney withdrew. Beams promptly secured
13 substitute counsel who, after only two weeks, also withdrew. Beams secured a third
14 attorney who filed one motion for Beams and then also requested withdrawal citing
15 “a breakdown in communication and a deterioration of the client-attorney
16 relationship.” Beams initially objected to his third attorney’s request for
17 withdrawal—despite openly questioning her judgment and qualifications—but later
18 changed course and asked that his third attorney be allowed to withdraw. That request
19 was granted. Shortly before Beams’ third attorney withdrew, Rhine’s attorney also
2
1 withdrew citing Rhine’s inability to meet her obligations.
2 In December 2008, Beams filed a pro se motion with the district court which
3 was denied by sua sponte order because the motion did not comply with the rules of
4 civil procedure. The district court specifically informed and cautioned Beams that,
5 despite the fact that he was representing himself pro se, he was required to comply
6 with all court rules.
7 On February 4, 2009, the parties went to trial on the petition and both appeared
8 pro se. Our review of the trial transcript reveals that the court worked with the parties
9 who clearly had no knowledge about the rules governing the proceeding. The court
10 managed to maintain the solemnity of the proceedings despite the parties constant
11 bickering and despite Beams emotional outburst during which he violently screamed
12 at Rhine.
13 Following trial, the parties submitted proposed findings of fact and conclusions
14 of law wherein they expressed their competing beliefs about how their property and
15 debt should be divided. Thereafter, the district court entered a final decree of divorce
16 and made numerous conclusions as to the division of property and debt. We decline
17 to summarize the entire decree. Beams has appealed only specific aspects of the
18 order. We discuss those aspects of the decree, as well as Beams’ arguments, in our
19 discussion.
3
1 DISCUSSION
2 Before addressing the issues on appeal, we must discuss the briefing in this
3 matter. As noted above, the parties represented themselves pro se throughout much
4 of the proceedings below and have proceeded pro se on appeal. The parties decision
5 to represent themselves on appeal is not without consequence: the briefing is gravely
6 inadequate.
7 Contrary to Rule 12-213(A) and (B) NMRA, both the brief in chief and answer
8 brief lack the following: a table of contents; a table of authorities; a summary of the
9 proceedings briefly describing the nature of the case, the course of proceedings, and
10 the disposition in the court below; a summary of the facts relevant to the issues
11 presented for review; citations to the record proper; the standard of review as to each
12 issue on appeal; arguments accompanied by citations to authorities and applicable
13 New Mexico decisions; specific attacks on the findings; and a conclusion with a
14 concise statement of relief.
15 Beams submitted a brief in chief, an answer brief responding to Rhine’s answer
16 brief, and two addendums or supplements to his brief in chief. The addendums
17 include varying attachments which, it appears, Beams intended us to consider as
18 substantive evidence. The addendums and the attachments will not be considered.
19 See Rule 12-213(D)(1) (“Except for those briefs specified in this rule, no briefs may
4
1 be filed without prior approval of the appellate court.”); see also Jemko, Inc. v.
2 Liaghat, 106 N.M. 50, 54, 738 P.2d 922, 927 (Ct. App. 1987) (“It is improper to
3 attach to a brief documents [that] are not part of the record on appeal.”). Neither the
4 brief in chief nor any of the other submissions on appeal are in the correct format. See
5 Rule 12-305 NMRA (specifying the required font size and spacing for briefs). While
6 the foregoing demonstrates that neither parties submissions are acceptable, we are
7 most troubled by the brief in chief.
8 The brief in chief begins with an “opening statement” which is
9 incomprehensible. Thereafter, four issues are discussed. We have made numerous
10 attempts to fully comprehend the arguments as to each issue, but have been unable to
11 understand most of what Beams has written. As noted, the brief in chief is devoid of
12 case citations and Beams has failed to tether his arguments to the order from which
13 he has appealed. Beams relies instead on what he calls “points of fact” which
14 purportedly support several “proposed conciliatory resolutions.” He appears to be
15 asking us to reevaluate the evidence presented below and enter a revised divorce
16 decree that complies with his view of how the district court should have decided the
17 matters at trial. Beams unnecessarily attacks Rhine’s character throughout the brief
18 in chief and unjustifiably questions the district court’s judgment and objectivity. As
19 described above, the district court exhibited great patience with the parties. In sum,
5
1 we have done our best to understand the content of the brief in chief, but find it largely
2 incomprehensible and inadequate.
3 The foregoing provides more than ample grounds to summarily dismiss Beams’
4 appeal. See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103,
5 108, 835 P.2d 819, 824 (1992) (declining to consider arguments based on factual
6 allegations which were unsupported by citations to the record proper); Headley v.
7 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076
8 (declining to entertain a cursory and inadequately developed argument and stating that
9 “[w]e will not review unclear arguments”); ITT Educ. Servs., Inc. v. Taxation &
10 Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (declining to
11 consider a proposition that was unsupported by citation to authority). Because,
12 however, “[i]t is the policy of this court to construe its rules liberally to the end that
13 causes on appeal may be determined on the merits,” Trujillo v. Serrano, 117 N.M.
14 273, 276, 871 P.2d 369, 372 (1994) (alteration in original) (internal quotation marks
15 and citations omitted), we shall evaluate what we understand Beams to be arguing.
16 See Clayton v. Trotter, 110 N.M. 369, 373, 796 P.2d 262, 266 (Ct. App. 1990) (stating
17 that we will review pro se arguments to the best of our ability, but cannot respond to
18 unintelligible arguments). Our understanding of Beams’ arguments is derived
19 primarily from the “summation of the brief in chief” which is located on pages fifteen
6
1 and sixteen of that document. We review the arguments in the order Beams presents
2 them.
3 Attorney Fees
4 Beams’ first argument concerns attorney fees. The divorce decree provides that
5 Beams and Rhine are responsible for their own attorney fees and costs. Beams
6 appears to be asking us to vacate this aspect of the decree and order Rhine to pay him
7 $4,800 to cover legal fees he incurred as a result of the proceedings. “[W]e review the
8 district court’s ruling on attorney fees only for an abuse of discretion. An abuse of
9 discretion occurs if the decision is against the logic and effect of the facts and
10 circumstances of the case.” Garcia v. Jeantette, 2004-NMCA-004, ¶ 15, 134 N.M.
11 776, 82 P.3d 947 (internal quotation marks and citation omitted).
12 Beams appears to claim that he should receive attorney fees because Rhine was
13 allegedly uncooperative throughout the proceedings below and because he claims that
14 she acted irrationally and vindictively. These arguments amount to nothing more than
15 attacks on Rhine’s character and fail to persuade us that the district court abused its
16 discretion in requiring the parties to pay their own attorney fees. The court’s decision
17 was neither illogical nor contrary to the circumstances in this case. Id.
18 Community Debts
19 Beams’ next two arguments concern the district court’s allocation of certain
7
1 debts as community debts. Whether the district court correctly allocated Beams’ and
2 Rhine’s debts is reviewed under the mixed question of fact and law standard. See
3 Fitzgerald v. Fitzgerald, 70 N.M. 11, 13, 369 P.2d 398, 399 (1962) (addressing the
4 issue of the division of community property and stating that “we will view the
5 evidence in an aspect most favorable to the judgment” and “will not disturb a finding,
6 supported by substantial evidence, nor will we weigh conflicting evidence”); Bursum
7 v. Bursum, 2004-NMCA-133, ¶ 19, 136 N.M. 584, 102 P.3d 651 (“The threshold
8 question of whether an item is community or separate debt is a legal issue that we
9 review de novo.”). We review mixed questions of fact and law for substantial
10 evidence to support factual findings and conduct a de novo review of the application
11 of those facts to conclusions of law. See Ponder v. State Farm Mut. Auto. Ins. Co.,
12 2000-NMSC-033, ¶ 7, 129 N.M. 698, 12 P.3d 960.
13 “Community debts are defined by exclusion, all debts contracted or incurred by
14 either spouse during marriage that do not fall within one of the specific subsections
15 of NMSA 1978, [Section] 40-3-9 A(1) through (6) [(1983),] defining ‘separate debt.’”
16 Beneficial Fin. Co. of New Mexico v. Alarcon, 112 N.M. 420, 423, 816 P.2d 489, 492
17 (1991). “We presume that a debt created during marriage is a community debt, and the
18 party asserting otherwise bears the burden of demonstrating that the marital debt
19 constitutes a separate debt under one of the categories set forth in Section[]
8
1 40-3-9(A)(1) through (6).” Huntington Nat’l Bank v. Sproul, 116 N.M. 254, 258, 861
2 P.2d 935, 939 (1993). “In apportioning a husband and wife’s assets and liabilities, the
3 [district] court must attempt to perform an allocation that is fair under all the
4 circumstances.” Fernandez v. Fernandez, 111 N.M. 442, 444, 806 P.2d 582, 584 (Ct.
5 App. 1991).
6 Line of Credit
7 Beams argues that a debt which has been referred to as the Wells Fargo line of
8 credit was wrongly determined to be a community debt. Neither party indicated
9 whether a copy of the instrument creating the line of credit was included in the record
10 proper. Our independent review of the parties trial exhibits reveals that a copy of the
11 line of credit mortgage is contained in Beams’ Exhibit Two. According to that
12 exhibit, the line of credit was extended by Wells Fargo Bank N.A. on January 17,
13 2007, in the amount of $100,000 and was signed by both Rhine and Beams. It was
14 secured by a mortgage on the New Mexico property, and the document indicates that
15 the mortgage was recorded on February 9, 2007, in the records of Grant County, New
16 Mexico in Book 269 at pages 765-776. The line of credit was created during the
17 marriage and is, therefore, presumed to be a community debt. Sproul, 116 N.M. at
18 258, 861 P.2d at 939.
19 The district court found that Rhine obtained the Wells Fargo line of credit
9
1 during the marriage by mortgaging the New Mexico property that Rhine and Beam
2 held jointly. This property consists of a house, land, and other improvements; it is
3 undisputed that this property is community property. The district court found that the
4 money obtained through the line of credit “benefited the community directly and
5 indirectly by allowing the parties to maintain their lifestyle.” The divorce decree
6 provides that the parties shall sell the New Mexico property and provides that
7 proceeds from the sale shall first be used to pay off the mortgage arising from the line
8 of credit and shall then be used to pay off certain tax debts and then any fees
9 associated with the sale. Finally, the decree provides that any proceeds remaining
10 shall be divided equally.
11 Beams objects to this outcome. He asserts that the Wells Fargo line of credit
12 and the mortgage arising from that line of credit should be deemed the sole and
13 separate property of Rhine. He asks us to impose upon Rhine the sole obligation to
14 satisfy the mortgage arising from the line of credit out of proceeds she receives, if any,
15 from the sale of the New Mexico property. He asserts on appeal, as he asserted at
16 trial, that the money obtained through the line of credit did not benefit the community.
17 He alleges that Rhine used the money obtained from the line of credit to pay off
18 premarital credit card debt and to make mortgage payments on another home in
19 Arizona that Rhine purchased before the marriage and was her separate property.
10
1 At trial, Rhine denied using any of the money accrued through the line of credit
2 to pay off credit cards and stated that the money was used exclusively for the benefit
3 of the New Mexico property and to make mortgage payments on her Arizona home.
4 Thus, Beams’ allegation that Rhine used the money to pay off her separate premarital
5 credit card debt is unavailing. The district court did not believe this allegation, and
6 we will not pass on the court’s judgment as to the truth or falsity of the evidence
7 presented at trial. See Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 22, 146
8 N.M. 453, 212 P.3d 341 (“[W]eighing evidence and making credibility determinations
9 are uniquely within the province of the trier of fact . . . .”).
10 As to making payments on her Arizona home, Rhine did testify that she directed
11 a portion of the proceeds from the line of credit to the debt payments due on her
12 separate Arizona property. The record indicates that the district court was aware of
13 this fact but, for reasons we shall now explain, the court determined that the entirety
14 of the money accrued from the line of credit benefited the community.
15 It is undisputed that the New Mexico property was purchased with $146,000
16 that Rhine obtained by refinancing her separate Arizona property. The district court
17 found this fact to be significant. The trial transcript indicates that the district court
18 concluded that, to the extent money from the line of credit was used to make debt
19 payments on Rhine’s separate Arizona property, Rhine was merely making payments
11
1 towards a debt she had incurred for the benefit of the community with the purchase
2 of the New Mexico property.
3 As discussed above, community debts are defined by exclusion. Alarcon, 112
4 N.M. at 423, 816 P.2d at 492. What is not a separate debt is a community debt. Id.
5 The definition of a separate debt is contained in the six subsections provided under
6 Section 40-3-9(A). There are no facts to support a conclusion that the line of credit
7 is a separate debt as set forth in the statute. The trial transcript indicates that the line
8 of credit was obtained to allow Beams and Rhine to pay their bills and maintain the
9 New Mexico property and also to make payments on Rhine’s Arizona home. That
10 home served as the financial foundation which allowed Beams and Rhine to secure the
11 New Mexico property. We reject Beams’ contention that the district court erred in
12 concluding that the Wells Fargo line of credit was community debt. We proceed to
13 the next issue.
14 Tax Debt
15 Beams’ next argument concerns Beams’ and Rhine’s outstanding federal and
16 New Mexico State taxes from 2006. The district court found that Rhine “received an
17 early distribution of $44,420[] from her 401k in 2006 resulting in a tax consequence
18 of $13,873[] to IRS and N.M. Taxation and Revenue. The money benefited the
19 community[.]” While not expressly stated, it is clear that the district court determined
12
1 that the 2006 tax debt is a community debt. Both parties denied having the resources
2 to pay off this debt. As such, the district court ordered that the tax debt be paid from
3 any net proceeds accrued from the sale of the New Mexico property.
4 On appeal, Beams asks us to vacate the district court’s determination that the
5 parties should pay the tax debt equally out of proceeds accrued from the forthcoming
6 sale of the New Mexico property and asks us to enter an order requiring Rhine to pay
7 the majority of the debt. Beams claims that Rhine should be held primarily
8 responsible for the debt because, he alleges, Rhine took the early 401k distribution
9 surreptitiously and then spent the money on herself, not the community.
10 In effect, Beams is challenging the district court’s findings and is asking us to
11 reevaluate the evidence and reach a different conclusion than that reached by the
12 district court. This we will not do. Blea v. Fields, 2005-NMSC-029, ¶ 18, 138 N.M.
13 348, 120 P.3d 430 (“We do not reweigh the evidence or substitute our judgment for
14 that of the district court, nor do we consider evidence that is unfavorable to the
15 findings.” (citations omitted)). There is no error here. We proceed to Beams’ final
16 issue on appeal.
17 Sale of New Mexico Property
18 Lastly, Beams asks that we modify the provisions in the divorce decree
19 concerning the parties mutual obligations regarding the sale of the New Mexico
13
1 property. Beams asks us to enter a “revised decree” and order Rhine to vacate the
2 premises within ninety days of that order. He also asks that we permit him to live in
3 the home after Rhine leaves. Finally, he explains that he would be willing to pay $450
4 per month towards the Wells Fargo line of credit if Rhine agrees to leave the property.
5 Beams does not understand the nature of this court’s authority. He is asking us to
6 rewrite the divorce decree to his liking and requests that we facilitate negotiations
7 between the parties in that process. We can do neither. See State v. Herrera, 92 N.M.
8 7, 13, 582 P.2d 384, 390 (Ct. App. 1978) (“[T]he Court of Appeals is a court of
9 review.”). The arguments in section four of Beams’ brief in chief are rejected.
10 CONCLUSION
11 For the foregoing reasons, the divorce decree is affirmed.
12 IT IS SO ORDERED.
13 __________________________________
14 CELIA FOY CASTILLO, Chief Judge
15 WE CONCUR:
16 __________________________________
17 MICHAEL E. VIGIL, Judge
18 __________________________________
19 TIMOTHY L. GARCIA, Judge
14