Leticia Lopez v. Joshua Conze

Santa Fe, New Mexico family law lawyers represented parties in a divorce action.





This was a fifteen-year-old divorce and child custody proceeding. In April 2020, the district court entered an order pursuant to Rule 1-127 NMRA partially granting Petitioner's motion for attorney fees incurred from 2009 through 2017 (First Order) in the amount of $125,000 for attorney fees and $30,000 in expert witness fees. The same day, the court entered another order, also pursuant to Rule 1-127, partially granting Petitioner's motion for fees incurred in 2017 and 2018 (Second Order) in the amount of $100,000 for attorney fees and $2,470.27 for the cost of a custody evaluation. Then, in August 2021, the district court entered a third order (Third Order), pursuant to Rule 1-127, awarding Petitioner an additional $55,000 in attorney fees incurred in responding to five motions filed by Respondent. Respondent appeals.





There is a presumption of correctness in favor of the district court's rulings and the appellant bears the burden of clearly demonstrating that the district court erred. Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063. Moreover, we review the district court's findings of fact for substantial evidence, see Autrey v. Autrey, 2022-NMCA-042, ¶ 9, 516 P.3d 207, including the district court's findings of the Rule 1-127 NMRA factors for granting attorney fees, see Monsanto v. Monsanto, 1995-NMCA-048, ¶¶ 17-20, 119 N.M. 678, 894 P.2d 1034 (holding that substantial evidence supported an award of attorney fees where the district court found an economic disparity between the parties based on financial resources available to the parties, including access to assets and the parties' ability to pay their attorney fees throughout the litigation). On appeal, a party challenging a finding for lack of substantial evidence must refer to "all of the evidence, both favorable and unfavorable, followed by an explanation of why the unfavorable evidence does not amount to substantial evidence, such as is necessary to inform both the appellee and the Court of the true nature of the appellant's arguments." Aspen Landscaping, Inc. v. Longford Homes of N.M., Inc., 2004-NMCA-063, ¶ 28, 135 N.M. 607, 92 P.3d 53. In reviewing a substantial evidence claim, "[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached." Las Cruces Pro. Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177.



{¶5} In this case, Respondent argues that the district court erred by not making findings of fact to support its findings of economic disparity in the First and Second Orders or its grant of fees in the Third Order. Respondent cites to no authority that states the district court must enter findings of fact to support a grant of attorney fees. Where a party cites no authority to support an argument, we may assume no such authority exists. See Lee v. Lee (In re Adoption of Doe), 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. In fact, the weight of authority contradicts Respondent's suggestion. See Rule 1-052(A) NMRA (stating that "[f]indings of fact and conclusions of law are unnecessary" in decisions on certain motions, including motions for attorney fees under Rule 1-127). Therefore, we decline to address this issue.



{¶6} Additionally, Respondent argues that the parties' settlement agreement precluded any awards of attorney fees in this case. Respondent informs this Court that he preserved this issue in six different motions without reference to specific page numbers. However, we find no mention of Respondent's contentions regarding the settlement agreement in these motions. Respondent also makes passing reference to his testimony below that the settlement agreement indicates that the parties intended to bear their own fees.[1] However, the parties' behavior in the following

eleven years demonstrates to the contrary. Respondent requested fees both early in the litigation, near the time the settlement agreement was entered, and much later, near the time that Petitioner requested the fees and costs at issue. Respondent cannot request fees below and argue now on appeal that the district court erred by failing to enforce the settlement agreement. See Culp v. Sandoval, 1916-NMSC-028, ¶ 31, 22 N.M. 71, 159 P. 956 ("If a person voluntarily acquiesces in, or recognizes the validity of, a judgment, order, or decree, or otherwise takes a position which is inconsistent with the right to appeal therefrom, [they] thereby impliedly waive[ their] right to have such judgment, order, or decree reviewed by an appellate court." (internal quotation marks and citation omitted)). Thus, Respondent has waived this argument.



{¶7} Respondent also contests the district court's finding of fact in the First and Second Orders that third-party funds received by Petitioner were loans and its finding of fact in all three orders that there was an economic disparity between the parties. However, on appeal, Respondent fails to present the evidence both supporting and contesting these findings, and further fails to explain why such evidence does not amount to substantial evidence. See Aspen Landscaping, Inc., 2004-NMCA-063, ¶ 28. Instead, Respondent argues that the district court had substantial evidence to find that the funds were gifts and that there was no economic disparity. The district court found that the funds were loans because "those funds are to be repaid to the third-party." The record includes testimony and several promissory notes indicating that the funds were to be repaid. Respondent argues extensively about the legal requirements for creating enforceable notes for repayment, but the district court's finding indicates that the court permissibly gave more weight to Petitioner's position that the funds were to be repaid. As a result, Respondent fails to establish that the district court had insufficient evidence to find that the funds were loans, misunderstands our standard of review, and does not demonstrate error. Therefore, the district court's findings regarding economic disparity and the nature of the loans stand. See Baker v. Endeavor Servs., Inc., 2018-NMSC-035, ¶ 2, 428 P.3d 265 ("Unless findings are directly attacked, they are the facts in th[e appellate] court, and a party claiming error on the part of the [district] court must be able to point clearly to the alleged error." (internal quotation marks and citation omitted)). We decline to address these arguments further.



Lopez v. Gonze, A-1-CA-40340 (N.M. App. Nov 18, 2024)

Affirmed