Pozen v. Fickler

1

LANA S. POZEN, Petitioner-Appellant, v. RAYMOND MARK FICKLER, Respondent-Appellee.

No. A-1-CA-40541

Court of Appeals of New Mexico

June 17, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Gerard J Lavelle, District Court Judge

Law Office of Dorene A. Kuffer, P.C.

Dorene A. Kuffer

Daniel D. Walton

Lawrence B. Kronen

Albuquerque, NM

for Appellant

L Helen Bennett, P.C.

L. Helen Bennett

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

MEGAN P. DUFFY, JUDGE

{¶1} This is the second appeal in this case. In Pozen v. Fickler (Pozen I), A-1-CA-37682, mem. op. (N.M. Ct. App. Apr. 6, 2020) (nonprecedential), we were asked to review the district court's determination that two properties owned by Petitioner Lana S. Pozen (Wife) and Respondent Raymond Mark Fickler (Husband) were 100 percent community property. See id. ¶¶ 11-12. We determined that Wife had established an initial separate property origin in funds used to purchase the properties and remanded to the district court for further proceedings on Husband's claim that Wife's separate property had been transmuted to community property during the parties' marriage. Id. On remand, the district court concluded that clear and convincing evidence established that the parties changed the character of the properties from separate to community through transmutation. Wife appeals. We affirm.

DISCUSSION

I. Jurisdiction

{¶2} Before turning to the merits of Wife's appeal, we must address Husband's motion to dismiss for lack of jurisdiction. Husband advances two arguments.

{¶3} First, Husband claims that Wife's appeal is premature because the proceedings below did not resolve an outstanding issue related to another property, hereinafter referred to as the Quail Run property, and therefore, the district court's order is not final. See Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 14, 113 N.M. 231, 824 P.2d 1033 ("[A]n order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible." (internal quotation marks and citation omitted)).

Having reviewed the record, we conclude there was no pending issue regarding the Quail Run property at the time this appeal was filed.

{¶4} The Quail Run property was at issue during the initial divorce proceedings and resolved by order of the district court, without objection, before the appeal in Pozen I. Neither party raised any argument regarding the Quail Run property in Pozen I, and therefore, our remand to the district court did not include the need to conduct further proceedings with regard to the distribution of this property.

{¶5} Husband nevertheless contends that the Quail Run property was at issue on remand based on a few remarks during the evidentiary hearing-Wife briefly indicated to the district court that there was an issue regarding the equity in the Quail Run property. The district court said that it had not been presented with any evidence on this issue and instructed the parties to file a motion if a hearing was needed. Neither party filed a motion. Accordingly, there was no outstanding or live issue with respect to the Quail Run property at the time of this appeal that would render the district court's order nonfinal.

{¶6} Husband argues in the alternative that Wife's appeal was filed late. Following the evidentiary hearing, the district court entered a supplemental final decree on Court of Appeals mandate on May 12, 2022. The decretal language in that decree stated that the parties could submit proposed findings of fact and conclusions of law at a later date. Both parties submitted proposed findings, and the district court issued a memorandum order on September 9, 2022, that found the supplemental decree contained "the most accurate statement of [f]indings and [c]onclusions for purposes of appeal."

{¶7} Husband argues that Wife's appeal was untimely because she filed her notice of appeal on July 8, 2022, more than thirty days after the district court filed the May 12 supplemental final decree. However, because that order expressly contemplated further action by the parties, the May 12 order was not final for purposes of appeal. See State v. Vaughn, 2005-NMCA-076, ¶ 18, 137 N.M. 674, 114 P.3d 354 (holding that an order is not final when it "expressly contemplated further proceedings"). Rather, a final order was entered on September 9, and Wife's notice of appeal was timely. See Rule 12-201(A)(3) ("A notice of appeal filed after the announcement of a decision, or return of the verdict, but before the judgment or order is filed in the district court clerk's office shall be treated as filed after that filing and on the day of the filing."). Because there is no jurisdictional bar that prevents us from reaching the merits of this appeal, Husband's motion is denied.

II. Wife's Claims of Error Lack Merit

{¶8} Wife's appeal challenges the district court's determination that two properties she purchased before the parties' marriage had been transmuted into community property. The history of those properties is detailed in Pozen I and will not be restated here. Wife argues that the district court erred in (1) finding that the properties had been transmuted, (2) shifting the burden of proof to Wife, and (3) failing to make a finding regarding the exact date when the properties were transmuted.^[1]

{¶9} "Transmutation is a general term used to describe arrangements between spouses to convert property from separate property to community property and vice versa." Allen v. Allen, 1982-NMSC-118, ¶ 13, 98 N.M. 652, 651 P.2d 1296. "[T]he spouse who argues in favor of transmutation carries what has been variously described as a difficult or a heavy burden" of proving by clear and convincing evidence that the grantor spouse intended to do so. Gabriele v. Gabriele, 2018-NMCA-042, ¶ 21, 421 P.3d 828 (alteration, internal quotation marks, and citation omitted). We review Wife's challenges to a district court's findings of fact for substantial evidence and the district court's conclusions of law de novo. See id. ¶ 18.

A. Sufficient Evidence Supports the District Court's Finding That the Properties Had Been Transmuted

{¶10} Wife offers two related arguments regarding the district court's determination that the properties had been transmuted. First, she contends that the district court erred in its ruling because there was "no supporting evidence other than the deeds showing joint title." This is not the case. The district court conducted a two-day evidentiary hearing and issued a supplemental final decree containing ten pages of findings and conclusions to support its determination that Wife's separate property had been transmuted into community property. While the district court took the deed history of the properties into consideration, the court also relied on the parties' testimony concerning their reasons for the title transfers, their use of funds generated by the rental of the properties for community expenditures, their use of community funds to support the properties, their commingling of assets and lack of tracing, and the way they lived their lives-as if they had a partnership in those properties. All of this evidence was properly considered by the district court. Compare Blake v. Blake, 1985-NMCA-009, ¶ 74, 102 N.M. 354, 695 P.2d 838 ("[T]he fact of the deed in the name of the parties as grantees does not alone establish transmutation."), with Nichols v. Nichols, 1982-NMSC-071, ¶ 23, 98 N.M. 322, 648 P.2d 780 (stating that although a real estate contract in the name of both parties "is not conclusive and is not, by itself, substantial evidence on the issue of transmutation, it at least constitutes some evidence of intent to transmute"). See also Papatheofanis v. Allen, 2010-NMCA-036, ¶ 14, 148 N.M. 791, 242 P.3d 358 (holding that the fact-finder is "permitted to infer the requisite intent from circumstantial evidence, provided the inference is reasonable").

{¶11} Wife also argues that Husband did not present clear and convincing evidence that transmutation occurred. On this point, Wife offers only general assertions concerning the weight of some of the evidence Husband presented. For example, Wife suggests that Husband's testimony was inconclusive on commingling because it was not corroborated by additional documentation. However, it is well established that "[t]he testimony of a single witness, if found credible by the district court, is sufficient to constitute substantial evidence supporting a finding." Autrey v. Autrey, 2022-NMCA-042, ¶ 9, 516 P.3d 207. Similarly, Wife asserts that Husband's exhibits are not clear and convincing proof because he did not provide additional corroborating evidence. Because Wife does not argue that these exhibits ought not to have been admitted, her arguments appear to be directed at the weight the exhibits should be given. However, weighing evidence was a matter for the district court, sitting as the fact-finder, and "we will not reweigh the evidence nor substitute our judgment for that of the fact-finder." Par Five Servs., LLC v. N.M. Tax'n & Revenue Dep't, 2021-NMCA-025, ¶ 25, 489 P.3d 983 (alterations, internal quotation marks, and citation omitted).

{¶12} Substantively, Wife has not demonstrated that the district court's findings are unsupported by substantial evidence nor has she shown that the district court's findings are insufficient to support the...