Chavarria v. Chavarria
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 GARY CHAVARRIA, 3 Petitioner-Appellant, 4 v. NO. A-1-CA-36120 5 SHERRY LYNN CHAVARRIA 6 n/k/a SHERRY JAMESON, 7 Respondent-Appellee. 8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 9 Mary W. Rosner, District Judge 10 Almanza Abrams, P.A. 11 Steven L. Almanza 12 Las Cruces, NM 13 for Appellant 14 Kenneth L. Beal 15 Las Cruces, NM 16 for Appellee 17 18 VANZI, Chief Judge. MEMORANDUM OPINION 1 {1} Petitioner Gary Chavarria appeals following the district court’s entry of a 2 divorce decree and the denial of three motions for reconsideration. On appeal, 3 Petitioner contends (1) his refusal to sign the marital settlement agreement rendered 4 the agreement unenforceable, and (2) the district court erred in its application of Rule 5 1-060(B) NMRA. This Court issued a notice of proposed disposition, proposing to 6 affirm. Petitioner has filed a memorandum in opposition, which we have duly 7 considered. Unpersuaded, we affirm. 8 {2} In this Court’s calendar notice, we proposed that a number of the issues 9 Petitioner raised were not properly before this Court. We further proposed that, to the 10 extent Petitioner was contending that the district court’s order was void because 11 Petitioner did not sign a marital settlement agreement, the case law Petitioner relied 12 on did not support that conclusion. Specifically, we noted that Herrera v. Herrera, 13 1999-NMCA-034, ¶ 17, 126 N.M. 705, 974 P.2d 675, supports the proposition that 14 a signature on marital settlement documents is not required where the agreement is 15 judicially supervised. 16 {3} In response, Petitioner continues to argue that his signature is required and that, 17 absent his signature, the agreement does not satisfy NMSA 1978, Section 40-2-4 18 (1907). Petitioner does not, however, address the fact that there was a trial and a 19 presentment hearing and that the district court heard testimony and made findings 20 regarding the agreement. See Herrera, 1999-NMCA-034, ¶ 13 (stating that “[w]hat 2 1 does prove the existence and therefore enforceability of the [marital settlement 2 agreement] is the testimony given to the trial court”). Because Petitioner has not 3 addressed the specific testimony that was introduced or how that testimony was 4 insufficient to establish that an agreement existed, we conclude that Petitioner has not 5 satisfied his burden on appeal of overcoming the presumption of correctness in the 6 district court’s rulings. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 19907 NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (“The presumption upon review favors 8 the correctness of the trial court’s actions. Appellant must affirmatively demonstrate 9 its assertion of error.”); Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 10 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the 11 burden is on the party opposing the proposed disposition to clearly point out errors in 12 fact or law.”). 13 {4} Thus, we conclude that Petitioner has not demonstrated that the district court 14 abused its discretion in denying Petitioner’s request for relief. Accordingly, we affirm. 15 {5} IT IS SO ORDERED. 16 17 __________________________________ LINDA M. VANZI, Chief Judge 18 WE CONCUR: 19 _________________________________ 20 JULIE J. VARGAS, Judge 3 1 _________________________________ 2 JENNIFER L. ATTREP, Judge 4
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