Muse v. Muse

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-003

Filing Date: November 13, 2008

Docket Nos. 27,177; 27,281; 27,509; 27,944 (Consolidated)

LANA CAROL MUSE,

Petitioner-Appellee,

v.

JACK LEROY MUSE,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Ralph D. Shamas, District Judge

Kraft & Hunter, LLP
Richard L. Kraft
Roswell, NM

for Appellee

Atkinson & Kelsey, P.A.
Thomas J. McBride
Albuquerque, NM

for Appellant

OPINION

SUTIN, Chief Judge.

{1} Husband Jack Leroy Muse appeals from adverse rulings in an over-seven-year,
bitterly fought marital dissolution. We remand on issues relating to Husband’s right to
receive accountings and relating to his right to review documents and information underlying
the special master reports. We also remand on an issue relating to attorney fees. We affirm
on all other issues.

BACKGROUND

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{2} Just half way through this case, the district court judge presiding at the time stated:

[T]his case is unparalleled in my experience as a trial lawyer and district
judge. I have never had a case with such a serious level of discord between
the parties. Occasionally child custody cases reach significant levels of
discord, but they pale in comparison to the protracted problems that Mr. and
Ms. Muse have presented[.]

Over the course of the case, the court found Husband in contempt on five occasions and
castigated Husband for his motives and conduct, apart from his contemptuous conduct. To
say that the parties engaged in extensive motion practice would be an understatement.

{3} The parties were married in 1964. Wife Lana Carol Muse sought dissolution in
December 2000. The court appointed a Rule 11-706 NMRA expert, Bruce Ritter, in May
2001 to report on asset values, debts, tax consequences, and liabilities. The dissolution and
property issues were tried in February and March 2004. Important in this appeal are Mr.
Ritter’s valuation report and his revised summary of entitlements and proposed distributions
(revised summary), which placed values on the community estate’s net assets and contained
a summary of the parties’ entitlements and proposed distributions.

{4} Notably, Mr. Ritter’s valuation report contained a summary of entitlements and
proposed monetary distributions with three possible scenarios including a range of lowest
possible, recommended, and highest possible net asset allocations to each party. Mr. Ritter
recommended the amount of $357,000, which fell between the lowest, $175,000, and the
highest, $425,000, possible scenarios. Anticipating disagreement between Husband and
Wife, the valuation report concluded with a recommendation to the court that if the parties
did not agree with the settlement proposed by Mr. Ritter, the court should appoint a receiver
to oversee a court-ordered liquidation of the community estate. Mr. Ritter suggested that
should the community estate be liquidated for a lower amount than the total-value estimate,
the net proceeds from the liquidation should be allocated so that Wife had priority to receive
her share of the community estate based on the $357,000 value and that Husband would then
receive the remaining proceeds. A revised summary presented at trial showed $340,620
instead of $357,000 as Mr. Ritter’s recommended net asset allocation for each party.

{5} Following trial, Wife filed requested findings of fact indicating that Mr. Ritter had
recommended approximately $340,000 as her share of the community estate, although she
offered alternative requested findings that closely conformed to the net asset range of Mr.
Ritter’s community share values set out in his revised summary. The court entered a March
2004 order dissolving the marriage and a separate March 2004 decision in which the court
for the most part adopted Mr. Ritter’s findings and recommendations in regard to property
valuations and distributions as contained in the valuation report and in the revised summary.

{6} The court also made several findings in regard to Husband’s conduct that clearly
influenced the March 2004 decision and that appear to have influenced later determinations

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of the court. The court noted that it had previously found that Husband “exerted undue
influence and placed [Wife] under duress when he had her sign an Agreement . . . in which
she conveyed her interest in [a business] to [Husband].” The court found that Husband “both
before and during the pendency of this action . . . made threats to [Wife] and conveyed
threats to [Wife] through their children that she would get nothing if she hired an attorney,
and that he would not work full time at the family businesses to ensure that she got nothing
at the conclusion of the divorce.” The court found that Husband “made good on his threats
to drive down the value of the family businesses and to increase the costs of litigation so that
[Wife] would get nothing at the conclusion of their marriage.” The court also found that
Husband used his control of family businesses to the detriment of Wife.

{7} In further findings, the court indicated that the value of one of the businesses that was
community property “plunged precipitously” due in most part to Husband’s “unreasonable
refusal to shut down” the business. The court also found that Husband made improper
payments from one of the business accounts, incurred unreasonable expenses, and that other
actions with respect to that business were “inconsistent with his fiduciary duty to manage
[the business] during the pendency of the divorce.” In addition, the court found that in
defending foreclosure actions “[Husband] hired counsel to defend only his interests,” paid
the attorney fees through one of the businesses, “refused to have his counsel defend [Wife]”
and, in addition, refused to settle the foreclosure actions “to keep the pressure on [Wife] to
extract a settlement in the divorce proceedings to his benefit.” Also in regard to the
foreclosures, the court found that Husband’s bad faith and breach of fiduciary duties in
managing the businesses and in refusing to settle resulted in the loss of substantial savings
that would have occurred had settlements been reached. The court further found that
Husband had not attempted in good faith to settle the case before the court, thereby
dramatically increasing Wife’s and his own attorney fees. Finally, the court found that
Husband had “failed to comply with multiple [c]ourt orders in this case” and had taken other
actions that also increased Wife’s attorney fees.

{8} Thus, we believe it is obviously based on Husband’s misconduct that the court in the
March 2004 decision ordered that if Husband did not accept the proposed distribution of
assets and debts set out in the decision, the court would appoint a receiver to take over
management of and to liquidate all of the family businesses. The proceeds of liquidation
would first be paid to satisfy Wife’s share of the community estate, and if that share were
not satisfied, Husband’s separate estate was to be used to make her whole. The court did not
state the specific amount of Wife’s share of the community estate. The court reserved
jurisdiction to reconsider its awards of spousal support and attorney fees.

{9} Husband chose not to accept the court’s proposed distribution and stated that he
believed there was no alternative available at that point except the forced liquidation of the
parties’ assets. Whereupon, in May 2004, the court ordered that the assets to be received by
Husband be passed to Wife to manage, oversee, and liquidate. The assets included family
businesses, airplanes, and real estate. The court ordered that Wife was to receive her share
of the community estate before Husband received his and, further, that if the proceeds from

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the liquidation were not sufficient to fully satisfy what Wife was to receive as her share of
the community estate, Husband’s separate estate was to be awarded to Wife to make her
whole. Wife was required to provide monthly accountings to Husband of the assets she sold,
the debts she paid, and the remaining balances to be applied to her share of the community
estate. In addition, the court ordered Husband not to sell or encumber his separate property
until it was determined by Wife’s accounting that she had received her full share of the
community estate.

{10} In September 2004, the court entered an order dividing assets and debts. Noteworthy
for the present appeal, in that order, presiding district court judge William Lynch crossed
through a finding that stated, “[Husband] shall pay to [Wife] the sum of $337,672 as her
share of the community estate.” Nowhere else in the order was a figure set out as Wife’s
share of the community estate.

{11} Although Wife had already been authorized to liquidate the assets, this September
2004 order repeated the language that had appeared in the March 2004 decision that if
Husband did not accept the distribution of assets and debts, a receiver would be appointed
to take over management of and to liquidate all of the businesses Husband was to receive
and to ensure that Wife received her share of the community estate from the sale before
Husband received his share. The court again stated that if the proceeds from the liquidation
were not sufficient for Wife to receive her share of the community estate, Husband’s
separate estate would be awarded to Wife to make her whole. Husband sought
reconsideration of the court’s allocation of assets and debts, complaining about what he
perceived to be an unequal distribution favoring Wife. Husband also complained about the
liquidation process and Wife’s actions in selling and controlling assets.

{12} In October 2004, the court appointed Mr. Ritter as a special master “to review and
resolve issues concerning the liquidation of the family businesses.” The court granted Mr.
Ritter “all the powers granted to Special Masters under Rule 1-053 [NMRA]” and required
him to “file a report pursuant to Rule 1-053(E).” Mr. Ritter submitted special master reports
and provided information at various times from November 2004 through his June 2007 final
report. Husband objected to the appointment of the special master and persistently objected
to the special master reports, and he also consistently sought information from and relief
relating to the special master.

{13} Also, in October 2004, Husband appealed the court’s May 2004 order that turned
assets over to Wife to liquidate and he also appealed the court’s September 2004 order that
divided assets and debts. In November 2004, he appealed the court’s order that denied his
motion that challenged the appointment of the special master. These appeals were later
dismissed, with mandates issued in May 2005 and February 2006.

{14} Alleging substantial losses and improper actions relating to Wife’s handling of assets,
Husband moved in August and December 2004 and March 2005 to stay or stop the asset
liquidation process. He also sought “a complete accounting.” Apparently concerned about

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a distribution of assets or liquidation proceeds to Wife based on a community share
valuation, Husband asserted that he and Wife should each receive an equal amount of the
“value received in the liquidation” in order to equally divide “the losses associated with the
forced liquidation sale of property.” Throughout the proceedings, Husband attacked the
liquidation process, sought accountings, and sought production of documents relating to
liquidation and the special master reports, including the opportunity to examine the special
master and Wife under oath.

{15} A special master report in March 2005 described liquidation efforts made, which
assets were still to be sold, and which debts were still to be paid, along with comparisons of
realized values, priority of payments from liquidation proceeds, amounts to pay Wife and
others for their role in the liquidation process, Husband’s spousal support obligations, and
appellate costs. The report stated that “[Wife’s] share of the community estate is estimated
to be $337,672.00, excluding the spousal support discussed below.” Husband filed
objections to the March 2005 special master report but nowhere specifically objected to the
foregoing statement. He also moved the court in June 2005 to allow discovery of
information relating to the liquidation, stating that the special master gathered information
but kept it secret from Husband and refused to disclose it to Husband despite repeated
requests for it, and that except for information reported in summary fashion to the court,
Husband was unable to ascertain underlying information relating to the special master’s
recommendations to the court.

{16} In May 2005, the case was assigned to Judge Ralph Shamas due to the appointment
of Judge Lynch to the federal bench. Following a hearing before Judge Shamas on the
special master’s motion to approve the March 2005 special master report, in July 2005, the
court adopted, with modifications, the March 2005 report. The court ordered the special
master to “complete the liquidation of the estate consistent with his report to the [c]ourt” and
to pay the liquidation proceeds consistent with his report. If the proceeds were not sufficient
to pay Wife’s share of the community estate, the special master was authorized to transfer
or liquidate Husband’s separate assets.

{17} Husband continued to pursue disclosure of documents and information. In a
February 2006 order, without making specific rulings, the court denied those pursuits “in all
respects,” stating that “[Husband] is intent on squandering the marital estate on unnecessary
fees and expenses, consumed through the device of repeated and vexatious motions and
complaints. This [c]ourt will not be a part of that hateful design.”

{18} An August 2006 special master supplemental report updated the court on liquidation
and disbursement of proceeds. Among other statements in his report, the special master
noted that the valuation report he prepared while serving as a Rule 11-706 expert showed
Wife’s one-half share of the community property to be $341,000. The report further stated
that he understood that Judge Lynch adopted that valuation with certain adjustments and also
stated that he understood counsel for the parties performed those adjustments and that they
ultimately determined Wife’s share of the community estate to be $338,000. In addition, in

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this supplemental report Mr. Ritter stated that he suspected that Judge Lynch, in rendering
his order dividing assets and debts, filed September 15, 2004, deleted the proposed finding
that set out a sum certain as Wife’s community share because the court “was disinclined to
independently run the figures involved as will be made more clear below.” Mr. Ritter then
proceeded to use the $338,000 figure as a “starting point” to describe what amounts had been
paid to Wife and to make his recommendations as to how to satisfy the balance of her
community share, including the simultaneous liquidation of Husband’s investment accounts.

{19} Husband objected to this August 2006 special master supplemental report in a
hearing in August 2006 and, in September 2006, objected in writing to the March 2005 and
August 2006 special master reports. Husband also by motion sought to examine, under oath,
the special master, Wife, and another person who assisted in the liquidation. Husband does
not point out to us any specific objection or argument he made as to the special master’s
statement in the August 2006 supplemental report that Wife’s share of the community estate
was $338,000. We see no specific objection to that amount in Husband’s written objections.

{20} In September 2006, the court entered an order in which it noted that, in the August
hearing in which Husband appeared pro se, “[t]he [s]upplement [r]eport of [s]pecial [m]aster
was the subject of considerable argument and debate.” The court denied Husband’s
objections and motions and adopted the August 2006 special master supplemental report.
In this September 2006 order, the court also denied Husband’s motion for an accounting.
The court gave no detail or ruling on any specific issue raised by Husband, brushing aside
Husband’s objections on the grounds that they added nothing new and were a “rehash [of]
all that was decided by Judge Lynch” and stating that Husband “had a full opportunity to
address this [c]ourt in regard to the [s]pecial [m]aster’s [r]eport and the [s]upplemental
[r]eport.” However, and particularly significant in this appeal, the court “independently
[found] that [Wife’s] share of the community estate, consistent with Judge Lynch’s previous
rulings and decisions, [was] $338,000.”

{21} In what we believe the court intended as an ultimate ruling as to the acceptance of
the special master’s work, the court also stated in the September 2006 order that when the
accountings, liquidations, disbursements, and other necessary services of the special master
were completed, the special master would be discharged, after which the balance of proceeds
would be set over to Wife, and Wife would be entitled to a judgment against Husband for
any deficiency. The court stated further that if the special master needed further orders to
accomplish the liquidation referred to in the August 2006 special master supplemental report,
the special master’s attorney was to present proposed orders to the court for entry. Pursuant
to its September 2006 order, and without notice to or approval by Husband, in October 2006
the court entered orders submitted by the special master’s attorney divesting Husband of
ownership of certain separate assets and setting them over to the special master on behalf of
Wife “incident to the property division in the dissolution of marriage.”

{22} In December 2006, in his continuing attempt to save separate property, Husband
claimed that he was deprived of his right to claim exemptions to which he was entitled. In

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February 2007, the court denied the claim for exemptions. In a separate order entered in
February 2007, the court found that Husband admitted to having engaged in the concealment
of community funds, admissions that the court found “shocking, especially since they
exposed the false character of [Husband’s] previous testimony, under oath.” Also described
by the court to be “[j]ust as astonishing” was the “revelation” that Husband converted certain
funds to avoid detection. The court further found Husband’s misconduct to be “consistent
with [Husband’s] pledge years ago to see that [Wife] was left with nothing from this
divorce.” In July 2007, the court adopted the May 2007 final report of the special master.

Husband’s Present Appeals

{23} Husband filed four appeals. He first appealed the September 2006 order that adopted
the special master supplemental report and denied his objections and motions. He next
appealed the October 2006 orders changing ownership. He then appealed the February 2007
order denying his exemption claims, and his last appeal was from the July 2007 order
adopting the final report of the special master. The appeals were consolidated.

{24} Husband presents seven appellate points. First, Husband asserts that the $338,000
award to Wife as her share of the community estate, contained in the September 2006 order,
is void both for lack of jurisdiction and because it was entered without notice and an
opportunity to object in a presentment hearing. Second, he asserts that he is entitled to an
accounting from Wife, apparently for the entire period that assets were liquidated. Third,
he asserts that the special master failed to comply with Rule 1-053 and that the court
therefore improperly accepted the special master reports and could not have determined
whether the special master’s findings, conclusions, and recommendations were not “clearly
erroneous.” Fourth, he asserts that Judge Shamas should be disqualified for bias. Fifth, he
asserts that the October 2006 orders changing ownership are void because they were entered
without notice and the opportunity to object in a presentment hearing and because he was
not given an opportunity to claim his statutory exemptions. Sixth, he asserts that he should
be awarded attorney fees for both trial and appeal. Seventh, he asserts that, assuming Wife
is entitled to the $338,000 award, he is entitled to claim exemptions as to the property being
liquidated.

DISCUSSION

I. Wife’s $338,000 Share of the Community Estate

{25} Husband appeals from the court’s September 2006 order in which the court
“independently [found] that [Wife’s] share of the community estate, consistent with Judge
Lynch’s previous rulings and decisions, [was] $338,000.” Husband argues that the
September 2006 order is void because the court had no jurisdiction to enter the order. He
also argues that the order is void because the court entered the order without giving him
notice and the opportunity to object to it in a presentment hearing. Whether an order is void
is a question of law, and we review questions of law de novo. See Martinez v. Friede, 2004-

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NMSC-006, ¶¶ 1, 8, 10, 135 N.M. 171, 86 P.3d 596, superseded by rule on other grounds
as stated in State v. Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363; Benavidez
v. Benavidez, 2006-NMCA-138, ¶ 7, 140 N.M. 637, 145 P.3d 117. We discuss Husband’s
two contentions and conclude that the September 2006 order is not void.

A. Lack of Jurisdiction Contention

{26} Despite an apparent acknowledgment in the objections he filed in September 2006
to the August 2006 special master supplemental report, where he stated that he had been
“[required] to pay $337,000,” Husband asserts on appeal that there was no previous ruling
as to any specific amount of Wife’s share. He points out that in the September 2004 order
dividing assets, Judge Lynch crossed out the finding that read “[Husband] shall pay to [Wife]
the sum of $337,672 as her share of the community estate.” Husband argues that this cross-
through, and the court’s failure to adopt the requested findings of fact submitted by Wife as
to the amount of her community share, constituted findings against Wife as to any $337,000
or $338,000 community share amount. Husband argues further that because Wife did not
appeal the September 2004 order or file a Rule 1-060(B) NMRA motion directed against the
ruling, the district court lost jurisdiction under NMSA 1978, Section 39-1-1 (1917), to
modify its prior rejection of a specific community share figure for Wife, and therefore Judge
Shamas did not have jurisdiction in September 2006 to award the specific $338,000 amount
to Wife.

{27} Husband then asserts that all that remained in terms of community share was what
Judge Lynch earlier adopted in his March 2004 decision, namely, the range of values
contained in Mr. Ritter’s revised summary. Husband argues that a range of values cannot
support a judgment capable of enforcement because it was not for a sum certain in favor of
Wife. Husband further argues that the court failed to reserve jurisdiction to enter a judgment
for a sum certain in favor of Wife in order to equalize the division of community property.
Husband does not, however, specifically attack Judge Shamas’ determination
of $338,000 on the ground that it is impossible to determine how he reached
that amount. See Chavez v. S.E.D. Labs., 2000-NMSC-034, ¶¶ 20-21, 129
N.M. 794, 14 P.3d 532 (indicating that the Supreme Court could not understand
how the workers’ compensation judge reached a particular mathematical
determination). Husband ultimately contends that all Wife is entitled to is half of the
liquidation value of the community assets plus certain amounts to which the court already
determined Wife was entitled.

{28} Wife’s response is that Judge Lynch’s September 2004 order “set up a formula . . .
that, when computed, would lead to the sum to which Wife was entitled from the parties’
estate.” Judge Shamas, according to Wife, applied the formula supplied in the earlier
proceeding and quantified the amount to arrive at the $338,000 amount Wife was to receive.
Wife supports this view by pointing to a worksheet “computation of division of estate” that
was an exhibit in an August 2006 hearing before Judge Shamas. This exhibit starts with a

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“base number of $340,620” and various “adjustments” of $120,146, totaling $460,766, and
deducts $123,094 already received by Wife, leaving a total balance due to Wife of $337,672.
Wife argues that in addressing Mr. Ritter’s range of values, Judge Lynch adopted neither the
highest nor the lowest possible scenario, but instead adopted the recommended one and
made modifications the court felt were necessary. Further, Wife argues that Judge Lynch
was not ready to run a complex calculation in September 2004, but left discussions of assets
and other determinations, as shown by the exhibit, for later and final calculation. We think
Wife is on the right track here.

{29} It is obvious that Judge Lynch and Mr. Ritter devoted a substantial amount of time
and deliberation with respect to the valuation and division of community assets. It is
apparent that Judge Lynch was continually focused on how the assets should be both valued
and liquidated and also on how to consider the financial impact of Husband’s wrongful
conduct, before settling on Wife’s community share entitlement. The history of the
proceedings shows that setting Wife’s community share was an ongoing process and not
finally determined in any final order, judgment, or decree before Judge Shamas’ September
2006 order. The division, yet liquidation, of assets was a prominent aspect of the court’s
continuing attempt through the special master to wind up the litigation and to arrive at and
to satisfy a community share entitlement for Wife. What seems most reasonable to assume
and fairly clear from our review of the proceedings from early 2004 through September 2006
is that the community share determination remained on the table in need of a decision, was
to be decided at some appropriate time, and was set to rest by Judge Shamas in September
2006 based on the record of the proceedings before the district court.

{30} We are therefore not persuaded by Husband’s argument that the court had no
jurisdiction to award Wife her community share based on a $338,000 value without
specifically reserving jurisdiction in an earlier order to enter a finding of or to make a
determination as to a specific amount. To support his jurisdiction argument, Husband cites
Higginbotham v. Higginbotham, 92 N.M. 412, 413, 589 P.2d 196, 197 (1979), for the
proposition taken from an earlier case “that once the time has lapsed within which an appeal
may be taken from the divorce decree, a court’s change of the original division of the
property cannot be sustained as an exercise of its continuing jurisdiction.” Higginbotham
involved an attempt “to reopen a decree for division of community property to entertain a
claim for enforcement of a verbal contract between the parties that was designed to supplant
the terms of the decree.” Id. Here, contrary to Husband’s argument, Judge Lynch did not
enter an order, judgment, or decree that either set or denied a monetary sum representing
Wife’s share of the community estate. Higginbotham therefore does not support Husband’s
argument. We see no jurisdictional bar in the present case to the court’s ongoing attempt to
wind up the property issues and to arrive at Wife’s share of the community estate. We
therefore hold that the court had jurisdiction to establish a specific $338,000 amount as
Wife’s community share.

B. Lack of Notice Contention

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{31} Husband also asserts that the September 2006 order is void because no notice was
given to Husband of any anticipated presentment of the order and because there was no
presentment hearing. Husband notes that NMSA 1978, Section 39-1-2 (1897) forbids entry
of a judgment without notice and that the applicable local rule LR5-202(C) NMRA forbids
a judge to sign an order unless it has been initialed by attorneys for all parties or pro se
parties. Husband relies on Montano v. Encinias, 103 N.M. 515, 515-16, 709 P.2d 1024,
1024-25 (1985), which held that the district court erred by failing to grant relief to the
appellant on a motion for relief from the judgment due to the failure of the court to give
notice of the judgment pursuant to Section 39-1-2. He also relies on Skelton v. Gray, 101
N.M. 158, 160, 679 P.2d 826, 828 (1984), which held that it was error for the court not to
grant a motion to vacate an ex parte child custody order where the order was submitted
contrary to the procedure counsel represented he would take and also violative of Section
39-1-2. In addition, Husband cites Rule 12-216 NMRA, which provides that a party is not
prejudiced if the party did not object, due to lack of notice, to entry of an order at the time
the order was entered.

{32} Husband’s point on appeal is that for the foregoing reasons the September 2006 order
is “void.” However, Husband provides no authority that states that under the circumstances
here the September 2006 order is void. Neither Encinias nor Skelton is authority for that
argument. Furthermore, Husband provides no rationale to support a theory that the order is
void instead of, perhaps, being at most voidable requiring it to be vacated for lack of proper
notice. Husband altogether fails to explain why he did not file a motion to vacate the order
when he learned of its entry. See Moore v. Brannin, 33 N.M. 624, 625, 274 P. 50, 51 (1929)
(holding that the remedy when a judgment has been entered without notice is to file a motion
to vacate the judgment); see also Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112,
¶ 12, 125 N.M. 748, 965 P.2d 332 (stating that to preserve an error, the party “must have
raised the issue below clearly, and have invoked a ruling by the court, thereby giving the trial
court an opportunity to correct any error” (citations omitted)). Having failed to act in that
regard, Husband cannot now complain. We hold that the September 2006 order is not void
for want of notice of entry or a presentment hearing.

II. The Accounting and Rule 1-053 Non-Compliance Issues

{33} These issues arise from rulings of the district court that denied Husband’s motions
for accountings and information relating to the liquidation process. We consider these
rulings to be rulings related to discovery, and we review the propriety of such rulings for
abuse of discretion. See Pina v. Espinoza, 2001-NMCA-055, ¶ 12, 130 N.M. 661, 29 P.3d
1062 (reviewing a discovery sanction order for abuse of discretion). “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.

A. The Issue of Wife’s Failure to Account

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{34} Husband appeals the court’s September 2006 order denying his motion to require
Wife to provide accountings relating to her liquidation of assets. Husband’s demand for an
accounting stems in major part from the court’s May 2004 order requiring Wife to account
to Husband in regard to the sale of assets and the payment of debts. However, Husband also
argues that Wife had a separate duty to account as a receiver because the court’s May 2004
order requiring Wife to oversee and liquidate assets was entered in direct response to an
earlier motion of Wife to be appointed receiver and because Wife effectively acted in the
capacity of receiver. See NMSA 1978, § 44-8-7(C) (1995) (requiring a receiver to “file
monthly operating reports with the district court and provide copies to all parties who have
entered an appearance and allow such parties reasonable access to the books and records of
the receivership”). In addition, Husband seeks an accounting based on Wife’s alleged
fiduciary duty as a shareholder in one of their closely held corporations. As part of the
accounting, Husband also asserts a right under the fiduciary exception to the attorney-client
privilege to have access to her attorney’s files pertaining to the liquidation.

{35} Wife initially sought the court’s assistance when, early on, she asked the court “to
turn over management of the community estate to her and for her to account to [Husband]
as she liquidates the estate.” The court’s orders clearly show that Wife became responsible
beginning in May 2004 for the liquidation of assets, the payment of debts, and to account to
Husband. The court very specifically ordered that possession of the assets to be received by
Husband in the court’s previous orders were to “pass to [Wife] . . . and [to] be managed by
[Wife]” and that Wife was to “oversee and be responsible for their liquidation.” This
included management of all businesses that Husband was to receive. It included Wife’s
“complete control of the assets” of the businesses, with the express, repeated charge to
liquidate the businesses. It included selling airplanes and real estate. Wife had express
authority to sell all of the assets “with or without [Husband’s] consent,” and Husband was
ordered to sign “all documents necessary to allow the sale of all assets to be liquidated by
[Wife].” Finally, the court ordered Wife to provide an accounting to Husband at least every
month “of assets she ha[d] sold, debts she ha[d] paid, and the remaining balance to be
applied to her share of the community estate.”

{36} The progress of liquidation is reflected in court-filed documents. In October 2004,
the court discussed Wife’s anticipated liquidation of the parties’ assets and also appointed
Ritter as special master “to review and resolve issues concerning the liquidation of the
family businesses.” Mr. Ritter submitted a report in November 2004 that stated he was
receiving regular reports from Wife on her efforts and the efforts of another person, Tom
Clark, to liquidate the community assets. In a January 31, 2005, report, the special master
objected to Husband being allowed back into one of the parties’ businesses in order “to
allow [Wife] to successfully complete the sale of all the [business’s] assets.” At least
through January 2005, it appears that Wife was in full control of the liquidation process.

{37} Following this January 2005 report, the roles of Wife and Mr. Ritter in the liquidation
of assets become less clear. In a March 15, 2005, report, the special master listed assets sold
totaling almost $1.4 million and debts paid totaling a little over $1.3 million and asked the

11
court to approve and ratify the transactions underlying the items listed. The special master
still saw Wife as liquidation receiver, as reflected in his characterization of Wife’s and
Clark’s fees in connection with the liquidation of the assets as “receiver fees” and the fees
of the law firm representing them as “[r]eceiver legal fees.” However, the special master
expressed a concern that “certain title companies cannot understand the concept of a
liquidating spouse where a [s]pecial [m]aster has been appointed” and thus requested the
court to give him a freestanding order allowing him as special master to sign deeds and other
documents necessary to complete the liquidation process. Then, in July 2005, the court
ordered the special master to “complete the liquidation of the estate” and to pay the
liquidation proceeds consistent with his report. Nevertheless, Wife and Clark continued to
engage in the liquidation of assets. The special master reports filed in August 2006 and June
2007 discussed fees owed or paid to Wife and to Clark for their ongoing liquidation efforts.
The August 2006 special master report suggested to the court that the special master be
permitted to accomplish the simultaneous liquidation of Husband’s investment accounts.

{38} We see no court-filed document, and Wife does not point us to such a document, that
specifically or expressly relieves Wife of her responsibilities to liquidate and account. It
appears that Wife continued to be actively involved in, if not to be responsible for, the
liquidation of community assets after the special master was appointed. In their briefs,
neither party points to any accounting supplied by Wife to Husband or to the court. It was
not until this Court happened to review exhibits from a February 2005 hearing that we
became aware of documents prepared by Wife during May through December 2004 relating
to the liquidation. These documents, which were tendered by Husband as an exhibit, consist
of information that shows business assets sold, sale proceeds, and application of the proceeds
to debt; business profit and loss reports; and business check registers. Wife does not
represent on appeal that she at any time submitted any other documents to Husband that
might be considered accountings. No accounting was filed in the court record by Wife.

{39} At this same February 2005 hearing in which Wife’s documents relating to
liquidation were tendered by Husband as an exhibit, Wife introduced exhibits consisting of
subpoenas issued in January 2005 addressed to Wife as custodian of business records
demanding production of a myriad of documents relating to the parties’ businesses that were
being liquidated, including monthly sales reports, documents relating to the sale of assets,
credit card statements, tax documents, documents relating to Clark, records provided to Mr.
Ritter, documents relating to the auctioneer, complete records of the disposition of
liquidation proceeds, and all supporting documentation relating to the information on the
check registers. Following the February 2005 hearing at which these exhibits were
presented, Judge Lynch entered an order that denied what appears to be virtually all of what
Husband had sought in the subpoenas. The parties do not, in their briefs, point to anything
in the record that shows any reason given by the court for its denial of Husband’s extensive
production requests.

{40} Further, neither party points to anything in the record that clarifies whether, and if
so, to what extent, the special master reports were meant to supplant Wife’s obligation to

12
account or whether the reports supplied a meaningful accounting relating to the liquidation
of assets sufficient to satisfy the obligation to provide accountings to Husband. They also
fail to cite, discuss, or attempt to explain the July 2005 order in which the court ordered the
special master to complete the liquidation of the estate.

{41} Husband repeatedly sought accountings, information, and documentation relating to
the liquidation process at various stages of the proceedings. But we are nowhere specifically
made aware by the parties of the extent, if any, to which Husband was successful with
respect to those requests. Husband’s numerous objections and requests filed during the
proceedings suggest that he received virtually no underlying documentation and information
relating to the transactions constituting the sale of assets and payment of debts during the
time Wife had the responsibility to liquidate the assets and to account to Husband.

{42} Husband raises a somewhat troubling issue insofar as his entitlement to accountings
from Wife is concerned. Wife’s answer brief is of no assistance in clarifying whether the
court erred in failing to require Wife to account. Wife argues only that the court placed the
responsibility and authority to liquidate the assets with the special master, thereby removing
that responsibility from Wife and placing it “under the umbrella of the [s]pecial [m]aster”
and that the special master submitted reports. According to Wife, this cut her time of
responsibility to “less than five months” to liquidate and to account. Other than to cite to
special master reports, Wife provides no factual detail, record cite, or document to support
her argument, nor does she provide any to support her assertion that “she was unable to
provide accountings as she no longer had power or control over the assets or the debts.”
Further, Wife brushes Husband’s contentions aside by stating without any specificity
whatsoever only that the court reviewed Husband’s motions to produce records, the court
heard testimony, considered exhibits, and “rendered rulings.” She cites no hearing tape or
transcript or any document in the record that would show that the court considered specific
accounting issues and indicated why it did not require Wife to account to Husband. In her
brief, Wife fails even to discuss the information she supplied Husband during May through
December 2004, and she fails to discuss the extent, if any, to which the court was satisfied
with what she had supplied. We are not obligated to search the record on a party’s behalf
to locate support for propositions a party advances or representations of counsel as to what
occurred in the proceedings. See Bintliff v. Setliff, 75 N.M. 448, 450, 405 P.2d 931, 932
(1965) (determining that our Supreme Court would not consider the argument of the
appellant’s counsel due to the failure to provide specific references to the record in violation
of a Supreme Court rule); Murken v. Solv-Ex Corp., 2005-NMCA-137, ¶ 14, 138 N.M. 653,
124 P.3d 1192 (“[W]e decline to review . . . arguments to the extent that we would have to
comb the record to do so.”); In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993
(Ct. App. 1992) (“This [C]ourt will not search the record to find evidence to support an
appellant’s claims.”).

{43} If it was the district court’s intent for Wife, at some specific point, to no longer have
responsibility to liquidate the assets and to account as ordered by the court in May 2004, and
the court may well have had that intent, it is difficult to understand why the court did not

13
expressly remove those responsibilities or expressly place both of those responsibilities on
another person. The appointment of Mr. Ritter as special master in October 2004 with “all
the powers granted to [s]pecial [m]asters under Rule 1-053” is not by itself the grant of a
power to liquidate the assets. Compare the New Mexico Receivership Act, NMSA 1978,
§§ 44-8-1 to -10 (1995, as amended through 1996), with Rule 1-053. The Receivership Act
contemplates appointment of receivers to collect and manage a receivership estate, sell estate
property, and act with powers expressly granted by an order of the district court. See § 44-8-
7(B), (H), (I); see also NMSA 1978, § 53-16-17(B) (1975) (authorizing, under the Business
Corporation Act, the district court to “appoint a liquidating receiver or receivers with
authority to collect the assets of the corporation”). Under Section 44-8-7(C), receivers have
special responsibilities to file operating reports and to allow parties reasonable access to the
books and records of the receivership. Under Section 53-16-17(B), in its order appointing
the liquidating receiver, the court is required to state the powers and duties of the receiver.
Although Rule 1-053 generally permits the court to specify a special master’s powers and
direct him or her to perform particular acts, the rule essentially contemplates appointment
of a special master to collect information, hold hearings, take evidence and testimony, make
findings of fact and conclusions of law, perform auditing and accounting functions, serve as
a referee or examiner, and report on facts and issues. See Rule 1-053(C), (D), (E). Rule 1-
053 does not expressly state that among the powers granted to a special master the special
master can collect, manage, and sell property such as a receivership estate as defined in
Section 44-8-3(D), and the court in this case did not expressly give Mr. Ritter such power
in October 2004.

{44} Our discovery of the court’s July 2005 order stating simply that the special master
was required to complete the liquidation would appear to support Wife’s otherwise
unsupported arguments that the special master took over her court-ordered responsibilities
to liquidate and account to Husband. We are unsure whether the court intended by its July
2005 order to completely relieve Wife of liquidation and accounting responsibilities and
entirely place those responsibilities, which are a receiver’s responsibilities, on the special
master. If fully transferred to the special master, the question arises regarding to what extent
the special master was required to act as a receiver and to account to Husband. In our view,
the record as cited and argued by the parties is insufficient to support a conclusion that the
court exercised the discretion required to deny Husband’s motion to require Wife to account
as liquidation receiver.

{45} We do not address Husband’s argument that Wife had a duty to account as
shareholder in a closely held corporation owned by them, because Husband has not pointed
out where he preserved this issue in the district court. Crutchfield v. N.M. Dep’t of Taxation
& Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273; see also State v. Dombos,
2008-NMCA-035, ¶ 42, 143 N.M. 668, 180 P.3d 675 (“[N]o error is shown when a party
fails to provide references to the transcript or the record where the issue was raised below.”).
Further, we think Wife’s duty in acting as liquidating receiver is sufficiently addressed based
on the court’s order and applicable receivership law.

14
{46} We also do not address Husband’s argument that Wife’s accounting should include
access to her attorney’s files pertaining to liquidation. Again, Husband fails to point out
where he preserved this argument in the district court. Crutchfield, 2004-NMCA-022, ¶ 14.
He in fact acknowledges that he did not preserve the issue by stating that he did not have an
opportunity to argue the scope of the accounting he was denied. We will not ignore
Husband’s lack of preservation, since it appears that Husband did not in any motion
specifically request as he does now for the first time on appeal that the attorney-client
privilege be waived under a fiduciary exception-to-the-privilege theory.

B. The Issue of Rule 1-053 Non-Compliance

{47} The special master did set out financial information related to the liquidation, such
as assets sold and sale proceeds, debts paid from the proceeds, expenses paid, assets still to
be sold and their estimated realized values, debts remaining to be paid, and certain corporate
financial information. However, Husband particularly faults the special master for not
providing to Husband the evidence on which the special master relied for the information
and the various conclusions and recommendations contained in his reports, and also for the
court’s failure to require that evidence to be received under oath. Husband also faults the
special master for not having filed a “transcript or other authorized recording of the
proceedings and of the evidence and the original exhibits.” Husband points specifically to
requirements set out in Rule 1-053(D)(3) relating to a special master’s receipt of financial
information, which states:

When matters of accounting are in issue before the master, he may
prescribe the form in which the accounts shall be submitted and in any proper
case may require or receive in evidence a statement by a certified public
accountant who is called as a witness. Upon objection of a party to any of
the items thus submitted or upon a showing that the form of statement is
insufficient, the master may require a different form of statement to be
furnished, or the accounts or specific items thereof to be proved by oral
examination of the accounting parties or upon written interrogatories or in
such other manner as he directs.

Husband argues that this provision suggests that the evidence relied on by the special master
should have been submitted to him under oath. He compares the process to that required in
administrative proceedings. See State ex rel. Battershell v. City of Albuquerque, 108 N.M.
658, 662, 777 P.2d 386, 390 (Ct. App. 1989) (requiring “administrative adjudicatory
proceedings involving substantial rights of an applicant [to] adhere to fundamental principles
of justice and procedural due process”).

{48} Pointing out further that the court required the special master to file reports pursuant
to Rule 1-053(E), Husband notes that under this rule a special master “shall file the report
with the clerk of the court and unless waived by the parties he shall file with it a transcript
or other authorized recording of the proceedings and of the evidence and the original

15
exhibits.” Rule 1-053(E)(1). Husband argues that the rule must be construed to obligate Mr.
Ritter to have allowed him to review financial information and documentation underlying
the special master’s reports in order to controvert the reports. He complains that he
requested but never received such information and documentation and that his requests to
examine the special master and Wife under oath in regard to the underlying information and
documentation were wrongfully denied by the court.

{49} In the same vein, Husband contends that the court’s September 2006 order, which
stated that the court was satisfied with the special master’s presentations, was erroneous.
Husband asserts that “[t]here is no indication in the record that the . . . court was provided
with or ever reviewed the evidence underlying the [s]pecial [m]aster’s report” and, therefore,
“the court could not have determined that the findings, conclusions and recommendations
contained in the [s]pecial [m]aster’s report were not ‘clearly erroneous.’” See Rule 1-
053(E)(2) (stating that the court must accept a special master’s findings of fact unless the
findings are “clearly erroneous”); Lopez v. Singh, 53 N.M. 245, 248, 205 P.2d 492, 494
(1949) (indicating that “clearly erroneous” as used in the case at hand meant “findings not
supported by substantial evidence”).

{50} We see nothing in Husband’s brief in chief that indicates where Husband preserved
his arguments that the special master and the court failed to comply with specific or implied
obligations required by Rule 1-053. We therefore will not consider those specific arguments.
Crutchfield, 2005-NMCA-022, ¶ 14 (stating that “[a]bsent . . . citation to the record or any
obvious preservation, we will not consider the issue”); see Dombos, 2008-NMCA-035, ¶ 42
(“[N]o error is shown when a party fails to provide references to the transcript or the record
where the issue was raised below.”); see also Barreras v. N.M. Corr. Dep’t, 114 N.M. 366,
371, 838 P.2d 983, 988 (1992) (“We will not consider a matter not properly before the trial
court for the first time on appeal.”). We do, however, think it troubling that Husband
appears to have continuously been refused access to the documentation and information the
special master obtained and used as support for the information, conclusions, and
recommendations contained in his reports. We are not alerted by Wife how Wife and the
court could expect Husband to be in a reasonable position to attack the special master reports
if Husband was denied access to such documents and information. Wife nowhere indicates
the court’s thinking as to why Husband had no right to review the underlying documentation
and information. Based on Husband’s appellate arguments and what he points to in the
record, left completely unexamined and unexplained is whether Husband had a fair
opportunity to show the court that aspects of the reports were clearly erroneous. Also left
unexamined and unexplained is why Husband’s requests were not worthy of being granted.

{51} If Wife has an answer to the foregoing concerns, she has not sufficiently presented
it in her answer brief or in oral argument before this Court. She merely asserts that the
special master regularly appeared before and reported to the district court, that Husband
objected to the reports, that the court considered the reports and the objections, and that the
court was “satisfied with the efforts and reporting of the [s]pecial [m]aster.” She appears to

16
want this Court to reject Husband’s arguments because of his contemptuous conduct,
implying that this was the basis for the court’s rejection of Husband’s requests for
information and documentation. It is not our practice to rely on assertions of counsel
unaccompanied by support in the record. The mere assertions and arguments of counsel are
not evidence. See Wall v. Pate, 104 N.M. 1, 3, 715 P.2d 449, 451 (1986); Henning v.
Rounds, 2007-NMCA-139, ¶ 2, 142 N.M. 803, 171 P.3d 317. Other than citing to three
special master reports, Wife does not refer to or cite to any hearing tape, court transcript, or
any document in the record proper in support of her assertion. We are supplied with no
explanation or argument supported in the record regarding whether Husband was supplied
underlying documents and information or whether the court properly denied Husband that
underlying documentation and information. Wife has simply left to this Court the job of
locating something in the record to support her otherwise unsupported view that the district
court satisfactorily addressed and properly denied each and every one of Husband’s requests
for access to information and documents relied on by the special master.

C. Summary of Accounting and Rule 1-053 Issues

{52} We have some reluctance to remand because Husband has not indicated in his brief
in chief that there was any reasonable basis on which to believe that the assets were sold
below their values, including an asset sold to Clark under a circumstance of alleged self-
dealing by a fiduciary. Nor has he shown where, in the record, he offered evidence showing
that sale prices were unreasonably below such values. We are convinced, nevertheless, that
with the inadequate record and briefing in this case, the better decision is to remand for
further proceedings. Thus, as disconcerting as it is to require the district court to revisit the
issues here, we feel compelled to remand because of the failure of briefing and the failure
of a record basis on which to determine why Husband appears to have been denied
information and documents relating to the liquidation of assets, the payment of debts, and
the payment of liquidation expenses. Just as the issue with respect to Wife’s accounting
obligation raises serious and unanswered questions, so does the issue of whether the
information and documents relied on by the special master were sufficiently accessible to
Husband so that he could effectively argue why the reports should not be approved.

{53} As we indicated earlier in this opinion, Wife essentially urges this Court to trust the
process and to deny Husband relief, particularly because the district court’s discretion was
exercised with Husband’s behavior, bad faith, and scorched-earth approach in mind. At oral
argument, Wife all but said that this Court should simply believe that the district court acted
correctly given the nature and extent of the proceedings and Husband’s conduct. We are not
going to decide these issues based on assumptions that Wife wants this Court to make, nor
are we going to comb through the sixteen volumes and 1529 pages of the record proper,
forty-six separate tape recordings of hearings, and the various exhibits presented in hearings,
in order to try to locate support for what the court may have intended or ruled on orally and
why the court took action or in order to try to find support for Wife’s arguments. See
Murken, 2005-NMCA-137, ¶ 14 (declining to review a party’s arguments where they did not
cite to any portion of a record that expanded approximately eight years and contained 4712

17
pages of litigation). The manner in which these issues present on appeal prevents this Court
from conducting an adequate review. Thus, constrained as we are in this case to remand on
these issues, we believe that it is necessary to do so.

{54} On remand, the district court is to address the issues of whether, and if so, in what
manner, Wife properly and adequately accounted to Husband. The court is to also address
whether, and if so to what extent, Husband is entitled to accountings from Wife. If any
aspect of this issue involves whether the special master properly and adequately accounted
to Husband on Wife’s behalf or independently, the court should also address this latter issue.
Further, the district court is also to address whether, and if so to what specific extent,
Husband is entitled to receive the information and documents that he has requested and that
support the information, conclusions, and recommendations of the special master. To
support the court’s ultimate holdings, the court should provide explicit determinations or
findings, with rationales. By this remand, we do not contemplate any need to unwind any
sales transactions but instead, and only if required for a legitimate reason, to address
amounts paid to each party.

III. The Bias Issue

{55} Husband contends that Judge Shamas is not capable of giving fair and unbiased
consideration to his legal points and arguments, raising due process concerns. He asks this
Court to disqualify the judge from proceeding further in this case.

{56} Husband quotes Judge Shamas’ February 9, 2006, order that denied Husband’s
January 27, 2006, motion seeking disclosure of court records, seeking to reconsider a prior
order, and seeking to compel production of documents. The February 9 order states:

[Husband] seeks to burden this case again with his tiresome
determination to make good on his promise to see that [Wife] gets nothing
from this proceeding. As Judge Lynch realized some time ago, [Husband]
is intent on squandering the marital estate on unnecessary fees and expenses,
consumed through the device of repeated and vexatious motions and
complaints. This Court will not be a part of that hateful design.

[Husband’s] present Motion is nothing more than a transparent
attempt to have this Court call the lawyers and the Special Master into the
courtroom, at considerable expense, to rehash issues that have already been
resolved through prior hearings and rulings. The Motion should, therefore,
be denied in all respects, and the Request for Hearing should likewise be
denied.

Husband further points to Judge Shamas’ statements in the court’s September 2006 order
characterizing Husband’s arguments as “wild accusations against Judge Lynch and the
[s]pecial [m]aster” and as having been made in an effort to discredit decisions made by

18
Judge Lynch. Husband also adds the fact that in the court’s September 2006 order Judge
Shamas denied several motions filed by Husband. Husband alleges bias stemming generally
from what Judge Shamas learned and attitudes he formed during his participation in the case.
While acknowledging his own “intemperate allegations and accusations,” Husband
nevertheless argues that he is “entitled to an impartial decision maker who would give
reasoned consideration to his contentions rather than rejecting such contentions out of hand
because they are combined with angry and intemperate allegations.”

{57} Husband did not seek to disqualify Judge Shamas in the district court. He attempts
to explain away that failure by arguing that orders about which he complains were entered
without his approval or a presentment hearing, and because Rule 12-216(B) NMRA permits
him to raise this bias issue on appeal for the first time because he was denied a fundamental
right. Husband relies on language found in State v. Webb, 67 N.M. 293, 296, 354 P.2d 1112,
1113 (1960), stating that the defendant’s attack on a judgment as being inherently and fatally
defective for lack of due process was “certainly a fundamental right” which should be
disposed of on its merits notwithstanding a failure to preserve the issue. Husband also relies
on Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153 (1988),
overruled on other grounds by Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M.
721, 965 P.2d 305. Richardson states that “[a] fundamental right is that which the
Constitution explicitly or implicitly guarantees.” 107 N.M. at 696, 763 P.2d at 1161.
Husband’s arguments and authority are not persuasive.

{58} That Husband may not have had an opportunity to address some of the court’s orders
allegedly entered without his knowledge or opportunity to object does not in and of itself
reflect bias, and Husband does not set out any facts to support bias in this regard. Further,
Husband could have filed a motion to disqualify Judge Shamas irrespective of whether he
had the opportunity at the time of entry of the orders to object to the orders. In addition,
Husband points to no circumstance analogous to that in Webb, much less to any attack he
is making on an order or judgment as being inherently and fatally defective for lack of due
process. Webb is not applicable because it addresses an attack on an inherently defective
judgment entered without due process and not with the overall bias of a judge.

{59} As well, we see no basis on which Husband has been denied a fundamental right as
contemplated in Rule 12-216(B) to have appellate review of an issue that he failed to raise
in the district court. Richardson merely states a general definition of a fundamental right.
To the extent that Husband felt deprived of due process by entry of an order without advance
notice and an opportunity to object, he should have attacked the entry of the orders at the
time and then, on appeal, claimed error. His use of the concept of a fundamental right to
attack Judge Shamas for bias is misguided. We see no basis in New Mexico law to invoke
any fundamental right exception to the preservation rule on the bias issue Husband raises.
See Gracia v. Bittner, 120 N.M. 191, 194-95, 196-97, 900 P.2d 351, 354-55, 356-67 (Ct.
App. 1995) (discussing the question of raising fundamental error in civil cases where an
issue has not been preserved in the district court, and setting out limited instances in civil
cases in which our Supreme Court has reversed for unpreserved error).

19
{60} Having failed to show us where he sought Judge Shamas’ disqualification in the
district court and having failed to establish any fundamental right to raise the issue for the
first time on appeal, we reject Husband’s request that Judge Shamas be disqualified from
proceeding further in this case. See State v. Lente, 2005-NMCA-111, ¶¶ 11-12, 138 N.M.
312, 119 P.3d 737 (refusing to reverse where the defendant did not preserve the question for
review and this Court found no fundamental error).

IV. The Assertion that the Orders Changing Ownership Are Void

{61} Four October 2006 orders changing ownership were entered pursuant to the court’s
September 2006 order which stated that “[s]hould the [s]pecial [m]aster need further [o]rders
from this [c]ourt for the purpose of accomplishing the liquidations referred to in paragraph
12 of the [s]upplemental [r]eport, he is to have [the special master’s attorney] present
appropriate forms of such [o]rders to this [c]ourt for entry of record.” The September 2006
order further stated that when the special master’s liquidations and certain other matters were
finished and the special master filed a certificate of completion, the court would enter an
order releasing and discharging the special master without any further hearing anticipated.
The September 2006 order was entered after the special master recommended that Husband’s
investment accounts be simultaneously liquidated. Husband had the opportunity to object
to and did object to the recommendation. The four orders set aside Husband’s Edward Jones
and Colonial Trust accounts, along with his American Heritage Bank stocks and his 1996
pickup.

{62} Husband notes that the four orders were not approved by any attorney other than the
attorney for the special master who submitted the orders or by Husband, who was pro se at
the time. He asserts that the orders are void, using the same argument he makes in asserting
that Judge Shamas’ $338,000 award is void. Thus, he argues that the orders are void because
none of the orders were the subject of a presentment hearing and because each was entered
in violation of Section 39-1-2 and LR5-202(C).

{63} We reject Husband’s arguments because Husband failed to appeal on a timely basis.
The four orders were entered on October 24, 2006. The notice of appeal from these orders
was not filed until December 7, 2006. Husband seeks to overcome this discrepancy by
arguing that the orders are void because the changes of ownership ordered were by their
terms “incident to the property division;” therefore, the orders pertained to property that was
either exempt or possibly exempt under New Mexico’s exemption statutes. As a result,
Husband argues, he was denied the opportunity to claim his exemptions, denying him due
process, which “makes the orders unconstitutional” and which makes the issue before us a
jurisdictional one invoking Rule 12-216(B) and excusing any failure to not timely appeal.

{64} Husband also contends that his October 30, 2006, motion to stay liquidation of assets
pending appeal was sufficient to preserve the issue he raises on appeal and to make his
appeal timely. He points to an argument he raised in his motion that no bond should be
required as a condition of granting a stay because the assets that the special master was

20
currently attempting to liquidate consisted mostly of cash or cash equivalents in interest-
bearing accounts. Husband asserts that this constituted a motion to reconsider the merits of
the orders. We disagree. Nothing in or about Husband’s motion would have put the district
court on alert that Husband was seeking any reconsideration of the merits of the orders. See
Diversey Corp., 1998-NMCA-112, ¶ 12 (stating that to preserve an error for appellate review
the party must raise the alleged error clearly to the district court); see also Govich v. N. Am.
Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (stating that the mandatory sections
of the appellate rules constitute a mandatory precondition to the exercise of jurisdiction).
At most, Husband was merely advancing arguments against enforcement of the orders so that
he could preserve assets pending appeal.

{65} We also reject Husband’s argument that he is nevertheless entitled to raise the issue
on appeal because an appeal from a final order entitled him to obtain review of interlocutory
orders entered before the final order, and also because his appeal of the September 2006
order “should also permit review of orders entered subsequent to the final order but which
are authorized by, or enforce, the final order.” Husband considers the orders changing
ownership to “essentially” be interlocutory orders in furtherance of or execution of the
September 2006 order. Husband looks to Davis v. Davis, 77 N.M. 135, 136, 419 P.2d 974,
975 (1966), and Chavez v. S.E.D. Laboratories, 2000-NMSC-034, ¶ 24, 129 N.M. 794, 14
P.3d 532, for support.

{66} These cases do not provide the support Husband needs to sustain his argument.
Davis is distinguishable in that the judgment the Court determined was interlocutory in
nature, which determined that a foreign judgment was entitled to full faith and credit was
only an “intermediate order” that was carried forward to become a part of a judgment that
found the appellant in arrears and thus delinquent in child support in a certain amount. 77
N.M. at 136, 419 P.2d at 975. In the present case, the September 2006 order authorized
entry of further orders, but the September 2006 order cannot be characterized as an
intermediate order that was carried forward to become a part of the October orders. Chavez
vacated orders that detailed recovery accounts because the court vacated the underlying
compensation order that authorized recovery. 2004-NMSC-034, ¶ 24. Chavez does not
provide a rationale for permitting an appeal from the October orders because the September
order authorized those later orders.

{67} Even were the appeal timely, we would hold against Husband on this issue. Husband
does not represent that he had no opportunity to file a motion to vacate the orders on the
grounds he now advances. In fact, Husband moved within a few days after entry of the four
orders to stay liquidation of his separate property, and he attached copies of the four orders
as exhibits to the motion, but did not seek to vacate the orders. It appears obvious from the
proceedings that Husband was well aware of the anticipated liquidation of his separate
property pursuant to the procedures ultimately set in progress by the September 2006 order.
In addition, as we indicated earlier in this opinion, Husband’s reliance on Montano and
Skelton is misplaced. Furthermore, having failed to preserve this argument in the district
court, Husband cannot now for the first time on appeal seek to void the orders. Diversey

21
Corp., 1998-NMCA-112, ¶ 12.

{68} For the foregoing reasons, we reject Husband’s argument that the orders changing
ownership are void.

V. The Attorney Fee Issue

{69} In March 2005, when objecting to one of the special master reports, Husband
complained that the special master was paying attorney fees to Wife but not to Husband. In
its July 2005 order adopting the special master report, the court ordered the special master
to review Husband’s request for attorney fees and to “determine what portion of his legal
fees assisted in the liquidation of the parties’ estate.” Husband complains that, although the
special master awarded fees to Wife and Husband, the fees awarded to Husband were
inadequate. He also contends that the court unlawfully delegated to the special master final
decision-making authority in awarding fees and thereby engaged in an unconstitutional
delegation of judicial authority. See NMSA 1978, § 40-4-7(A) (1997) (authorizing the court
to “make an order, relative to the expenses of the proceeding, as will ensure either party an
efficient preparation and presentation of his case”); Buffington v. McGorty, 2004-NMCA-
092, ¶ 30, 136 N.M. 226, 96 P.3d 787 (holding that a party must have an opportunity to
present to the court any objections to a hearing officer’s report and recommendations).
Husband also argues that the limitation of the special master’s consideration of attorney fees
to those related to assisting in the liquidation of the estate, instead of more broadly
considering fees for “efficient preparation and presentation of [a] case,” is improper.

{70} It appears that Husband raised his attorney fee concerns at various times during the
proceedings, that on occasion his attorney sought to withdraw because of his inability to pay
fees, and that in August 2006 he requested the court to release funds to him for attorney fees
because he had no funds to hire legal counsel to represent him. He represents in his brief in
chief that he has no money to pay attorney fees. He asserts that the court abused its
discretion in denying his requests for attorney fees. See Tedford v. Gregory, 1998-NMCA-
067, ¶ 44, 125 N.M. 206, 959 P.2d 540 (stating that, in deciding whether to award attorney
fees in domestic relations cases, the court is to consider various factors, including economic
disparity, the nature of the proceedings, the complexity of the issues, the relief sought and
recovered, and the ability of the parties to pay fees); Sheets v. Sheets, 106 N.M. 451, 456,
744 P.2d 924, 929 (Ct. App. 1987) (“Where a party lacks sufficient funds to pay attorney
fees for representation incident to dissolution of marriage or rights incident thereto, and the
financial situation of the parties is disparate, it is error to deny an award of reasonable
attorney[] fees.”). Finally he acknowledges that he diverted $33,750 in refunded attorney
fees and other proceeds because he needed the funds to live on, and he argues that this ought
not deprive him of the right to money for attorney fees to assure the efficient preparation and
presentation of his case.

{71} We review a court’s decision whether to award attorney fees in a marital dissolution
and property division case for abuse of discretion. Lebeck v. Lebeck, 118 N.M. 367, 375,

22
881 P.2d 727, 735 (Ct. App. 1994). Section 40-4-7(A) by its terms grants discretion by
authorizing, but not requiring, a court pursuant to an order to assist a party “relative to the
expenses of the proceeding” to ensure “efficient preparation and presentation” of a case. In
this case, we are unable to conclude that the court abused its discretion in any regard as to
attorney fees.

{72} Husband has not met his burden on appeal to demonstrate through discussion of
facts, arguments, and rulings appearing in the record how the district court abused its
discretion. Husband’s arguments are surface presentations only. We will not search the
record for facts, arguments, and rulings in order to support generalized arguments. Murken,
2005-NMCA-137, ¶ 14; In re Heeter, 113 N.M. at 694, 831 P.2d at 993 (“This [C]ourt will
not search the record to find evidence to support an appellant’s claims.”).

{73} We understand that Husband contends that Wife was paid considerable sums,
apparently in connection with her activities in liquidating properties, and that Husband was
paid an inadequate amount in that regard. Husband does not persuade us, however, why he
would have been entitled to more than that which he received in connection with liquidation.
We also understand that Husband contends that the restrictions on his being able to use his
separate assets to produce income severely hampered his ability to pay attorney fees.
Husband leaves out the history of his wrongful and contemptuous conduct and litigiousness
that created the need for court rulings in regard to his separate property, that increased the
cost of litigation, and that likely played a role in the court’s analyses in regard to Husband’s
entitlement to attorney fees. Husband omits specific evidence that might justify an award
of attorney fees, including unjustified disparate financial conditions requiring the court to
assist Husband. Further, Husband does not indicate how he was deprived of an opportunity
to object to the special master’s payment of attorney fees. Nor does he show whether Wife
received attorney fees for preparation and presentation of her case in addition to the fees she
received for her liquidation activities, thereby perhaps giving Husband a basis on which to
also seek such fees.

{74} We see no basis on which to reverse any particular ruling of the court in regard to
attorney fees, nor do we see a basis on which to remand this case to the district court for
reconsideration of attorney fees, except as follows. Because we remand on the accounting
and the entitlement to information and documents issues as they relate to the liquidation of
assets, the court on remand should consider (1) whether, and if so, in what amount, Husband
should be awarded attorney fees for the work in district court attempting to obtain an
accounting and the underlying information and documentation, and (2) whether, and if so,
in what amount, Husband should be awarded attorney fees for prevailing on that issue on
appeal.

VI. The Exemption Issue

{75} Husband raised the exemption issue in the district court by filing a “claim of
exemption” in which he complained that liquidation was “in the nature of either an execution

23
on a judgment or a garnishment.” He argued that Wife, as a judgment creditor, did not
comply with Rules 1-065.1 and 1-065.2 NMRA that required Wife to serve Husband with
a notice of the right to claim an exemption. He requested the court to require Wife to
comply with these rules and to then uphold his claims of exemption under NMSA 1978,
Section 42-10-1 (1983) as to the personal property referred to in the orders changing
ownership. Section 42-10-1 exempts personal property “from receivers or trustees in
bankruptcy or other insolvency proceedings, fines, attachment, execution or foreclosure by
a judgment creditor.”
{76} The court denied Husband’s claims in a February 2007 order, and Husband appeals
from that order. The order stated that the exemption statutes at issue did not apply “in the
case of an award of separate property as part of a property division in a domestic relations
case.” This issue is a question of law, and we review it de novo. See Morgan Keegan
Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066
(recognizing that interpretation of a statute is a question of law that an appellate court
reviews de novo); see also Benavidez v. Benavidez, 2006-NMCA-138, ¶ 7, 140 N.M. 637,
145 P.3d 117 (“The interpretation of writings is a question of law, which we review de
novo.”).

{77} On appeal, Husband argues that assuming, without conceding, the September 2006
order in which Judge Shamas found that Wife’s share of the community estate was $338,000
was valid, the effect was to grant a judgment against Husband in that sum and to authorize
enforcement of the judgment by liquidation of his separate and exempt property. He argues
that the four October 2006 orders changing ownership were entered to satisfy deficiencies
in the $338,000 judgment through enforcement and, in effect, execution by a judgment
creditor, thereby implicating Section 42-10-1. Husband asserts that under Section 42-10-1,
at a minimum, his separate property was “arguably exempt from liquidation as part of the
‘. . . property division in the dissolution of marriage.’” Thus, Husband asserts that the court
erred in denying his claims for exemption.

{78} Husband relies on Ruybalid v. Segura, 107 N.M. 660, 763 P.3d 369 (Ct. App. 1988),
to support this argument. In Ruybalid, following a divorce and property division, the
husband claimed a homestead exemption under NMSA 1978, Section 42-10-9 (1987)
(amended 1993 and 2007) as to his separate residence property when the wife attempted to
execute based on a money judgment in her favor resulting from a judgment and decree
setting out final distribution of marital property which reflected that judgment and a specific
lien imposed on the property. Ruybalid, 107 N.M. at 662, 667, 763 P.2d at 371, 375.
Husband argues on appeal that the reasoning in Ruybalid should be applied to exempt his
personal property in the present case under Section 42-10-1. That is, according to Husband,
Ruybalid similarly involved the division of properties in a martial dissolution, and the
husband’s separate property was subject to lien and execution, not unlike the process in the
present case of liquidation of his personal separate property to satisfy the $338,000 amount
to be satisfied from community and separate property.

{79} Wife’s answer brief wholly fails to respond to Husband’s Ruybalid argument.

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Ignoring Ruybalid completely, Wife asserts that “absolutely no authority in New Mexico or
any other jurisdiction . . . allows parties to claim exemptions against each other in the
division of their community and separate estates at the time of dissolution of marriage.”
While Wife may be correct, her approach in ignoring Ruybalid is not one to replicate in
future appeals. While, as we explain momentarily, we reject Husband’s argument, it seems
risky business for appellate counsel to ignore plausible authority advanced by opposing
counsel for reversal of a district court ruling.

{80} The district court’s September 2006 order was a determination made to quantify
Wife’s share of the community estate. Although the court dissolved the marriage early on,
there is little question that the court reserved for later determinations two matters: the
amount of Wife’s share of the community estate and the satisfaction of that amount through
liquidation of community assets and, if necessary, liquidation of Husband’s separate assets.
We see this approach as constituting an aspect of a division of property pursuant to which
Husband’s separate property was transferred to Wife to satisfy her community share
entitlement. Ruybalid is sufficiently different to be distinguishable.

{81} In Ruybalid, the district court entered a money judgment in favor of the wife and at
the same time specifically imposed a lien on the husband’s separate property, which was a
residence. 107 N.M. at 662, 763 P.2d at 371. When the wife sought to enforce her judgment
through execution and garnishment, the husband claimed a homestead exemption. Id. at
662-63, 763 P.2d at 371-72. The district court ruled that the husband was not entitled to a
homestead exemption because he did not have custody of his children, was not their sole
supporter, and did not have his children reside with him. Id. at 663, 666, 763 P.2d at 372,
375. On appeal, this Court reversed on the ground that the district court imposed
requirements on the husband beyond those set out in the exemption statute. Id. at 666, 763
P.2d at 375. This Court held that the husband was entitled to a homestead exemption on the
basis of contributions to the support of his children. Id. The issue of whether the homestead
exemption applied in property division proceedings in a marital dissolution was not raised
or decided in Ruybalid. Further, there is no indication in the Ruybalid opinion as to why the
wife was entitled to a judgment lien against the separate property of the husband.

{82} Based on inadequate briefing in this case as well as how we read Ruybalid, we will
not apply Ruybalid as sufficiently analogous authority, nor will we apply any rationale
employed in Ruybalid, to control the outcome in the present case. Husband cites no further
authority to support an argument that Section 42-10-1 applies, or that the Legislature
intended that statute to apply, in the present circumstances. We are unwilling to construe
the statute to apply under the circumstances in this case.

{83} We hold that the court did not err in denying Husband’s claims of exemption under
Section 42-10-1 and in rejecting Husband’s position that he was somehow harmed or
prejudiced by a failure to provide a notice of a right to claim an exemption.

CONCLUSION

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{84} We reverse the district court’s denial of Husband’s motion for an accounting from
Wife and remand for explicit determinations consistent with this opinion. We also reverse
and remand, consistent with this opinion, for explicit determinations in regard to whether
Husband was improperly denied access to information and documents underlying the special
master reports. We affirm on the remainder of the issues presented on appeal, with the
exception of any financial and attorney fee adjustments that may be required based on the
outcome of further proceedings on remand.

{85} IT IS SO ORDERED.

JONATHAN B. SUTIN, Chief Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

MICHAEL D. BUSTAMANTE, Judge

Topic Index for Muse v. Muse, Nos. 27,177/27,281/27,509/27,944

CP Civil Procedure
CP-NO Notice

DR Domestic Relations
DR-AF Attorney Fees
DR-DP Division of Property

JG Judges
JG-AD Abuse of Discretion
JG-DS Disqualification
JG-SJ Successor Judges

RE Remedies
RE-EP Exemptions
RE-LQ Liquidated Damages
RE-MD Measure of Damages

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