This decision of the New Mexico Court of Appeals was not selected for publication in 

the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the 

citation of unpublished decisions. Electronic decisions may contain computergenerated errors or other deviations from the official version filed by the Court of 

Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-39767

LYDIA ALFARO,

Petitioner-Appellee,

v.

TRANSITO DIAZ,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

Allen R. Smith, District Court Judge

Lauren Law, LLC

Lauren L. Barela

Los Lunas, NM

for Appellee

Law Office of Augustine M. Rodriguez, LLC

Augustine M. Rodriguez

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

BUSTAMANTE, Judge, retired, sitting by designation.

{1} Respondent Transito Diaz (Father) appeals the district court’s divorce decree 

that incorporated a marital settlement agreement, a stipulated parenting plan and child 

support obligation between Father and Petitioner Lydia Alfaro (Mother), and a warranty 

deed and quitclaim deed conveying real estate from Father to Mother. Father argues 

that the district court erred because (1) the translations provided by the certified 

interpreter during the hearing, where the parties agreed to the division of property and 

custody were inaccurate; (2) Father’s agreement to the division of property and custody 
was not knowing and voluntary; (3) the agreements were unconscionable because they 

were unfair and unjust; and (4) the parties should have gone to trial and the district court 

should have ruled on Plaintiff’s motion for summary judgment. We affirm. 

BACKGROUND

{2} Both Mother and Father are of “limited English proficiency” and required a 

Spanish speaking court interpreter during the district court proceedings. Mother and 

Father were married in 2009 and have three children together. Mother applied for a 

petition of dissolution of marriage from Father in September 2018. The district court 

ordered the parties to attend mediation, but Father did not attend. Father responded to 

Mother’s petition, but the matters seem to have languished thereafter. In October 2018 

in a separate proceeding, the district court entered a mutual order of protection ordering 

the parties to share physical custody of the children on a 50/50 basis, alternating 

weekly. The terms of the order expired in April 2019. 

{3} In February 2020, Mother filed a motion to amend custody and timesharing, 

requesting that “she have primary custody with [Father] having timesharing every other 

weekend.” Father did not file a response. The parties appeared at a telephonic hearing 

on May 27, 2020. At the telephonic hearing, Mother was represented by counsel, Father 

appeared without representation. A court appointed interpreter was put under oath and 

made available for both Mother and Father. After the district court reviewed the history 

of the case, the district court noted that they were there on Mother’s motion to amend 

the custody and timeshare agreement. 

{4} Mother’s counsel represented that, after negotiation, the parties had agreed on 

all issues except sole custody. For the remainder of the hearing, the parties discussed 

and entered into agreements about the parentage of the parties’ eldest child, custody of 

the children, the marital home, Father’s 401k, Father’s social security benefits, EBT 

benefits, Medicaid benefits, a trailer, the tools inside the trailer, and Father’s personal 

property inside the home. The parties agreed that Mother would get sole legal and 

physical custody of the children, the home, the social security, EBT, and Medicaid 

benefits, while Father would get his 401k, the trailer and its contents, and his personal 

effects inside the home. The parties also established that Father was the parent of their 

eldest child. The district court asked Mother’s counsel to prepare an order and a 

warranty deed and told Father to review the order to “make sure that it says what you 

have agreed to” before the hearing was adjourned. 

{5} No order was presented to the district court and in August 2020 Mother 

requested a hearing for an “[e]videntiary [t]rial on the [m]erits.” Father’s counsel entered 

his appearance in early September and filed a “Trial Brief” in late October arguing that 

the house was Father’s sole and separate property and making claims against Mother 

for unjust enrichment. Father also filed a motion for summary judgment and declaratory 

judgment, a witness list, and an exhibit list. Mother also filed a witness list, exhibit list, a 

motion for child support, and a response to Father’s motion for summary judgment, 

before Father filed his reply in support of his motion for summary judgment. 
{6} Another telephonic hearing was held on November 5, 2020, with both parties 

represented by counsel. A certified court interpreter interpreted for the parties. After 

reviewing the history of the case, the district court was adamant that the parties had 

entered into an agreement at the May 2020 hearing, and that the court was simply 

waiting for an order memorializing the agreement. The district court asserted a number 

of times during the November 2020 hearing that his approval of the parties’ agreement 

constituted an order of the court. As such, the district court informed the parties that it 

was not appropriate to relitigate the agreed upon terms of the agreement. Rather, he 

asserted, the appropriate procedure was to enter an order reflecting the agreement, and 

then counsel could file motions to reconsider to revisit the substance of the agreement.

{7} Father’s counsel explained that after the May 2020 hearing, Father “had a 

problem” with the sole legal custody and distribution of property. The district court 

explained that once the order was tendered, if Father had a problem with the agreement 

or form of order, the appropriate response was to file a request for a presentment 

hearing or a motion to reconsider. Father made an oral motion to continue to provide 

the parties an opportunity to brief the district court on the court’s position that there was 

an agreement, which the district court denied. The district court told the parties it 

needed an order memorializing the agreement made in May 2020 and after that the 

parties could file pleadings to reconsider, but until then the judgment stood. The district 

court also denied the motion for summary judgment.

{8} In December 2020, Father filed a motion for a presentment hearing, in which he 

stated he “withdraws his acquiescence to the purported agreement of May 27, 2020.”

Mother filed a written response, and the district court held another hearing on March 31, 

2021. At the hearing both parties were represented by counsel, and Mother was 

provided a certified interpreter under oath. Father argued that the district court did not 

enter an order on the agreement at the May 27, 2020 hearing. In response, the district 

court made clear that, in its view, the parties entered into an agreement and the court 

had entered an oral order approving the agreement at the May 2020 hearing. The 

district court reiterated that it was waiting on a written order memorializing that 

agreement, and that if Father disagreed with that order, he needed to file a motion after 

the written order was filed. 

{9} In April 2021, the district court filed an order that granted the parties’ dissolution 

of marriage and adopted the martial settlement agreement, the stipulated parenting 

plan, and child support obligation (the Agreements), that Father had refused to sign.

Father appeals. 

{10} Father filed a docketing statement with this Court that failed to provide any facts 

from which we could discern whether or not—as a factual matter—Father agreed to 

anything on the record as ultimately found by the district court. Since it could be 

dispositive if Father accepted the settlement offer on the record, we proposed to affirm 

based on the presumption of correctness. Our calendar notice instructed Father that 

“any memorandum in opposition to this proposed disposition [Father] chooses to file 

should include a thorough description of the proceedings below, particularly with regard 
to the hearing conducted on May 27, 2020.” Father filed a memorandum in opposition 

that was largely unresponsive to the request for a factual description of the proceedings. 

Rather than provide us with any additional information about what happened at the 

hearing, Father continued to argue that the property division and parenting plan were 

unfair. Father failed to provide a description or summary about what he said at the 

hearing and failed to inform this Court of the relevant facts to the central question of 

whether Father assented to the terms reflected in the Agreements. 

{11} This Court then entered an order to show cause that required Father to file an 

amended memorandum in opposition “that summarizes the facts of the May 27, 2020, 

hearing and provides an argument premised on those facts.” Father’s reply was not 

responsive to our request. Instead, Father again asserted that appellate review of this 

case would require us to review the transcript of that hearing in order to “evaluate the 

[district] court’s assertion that [Father] acquiesced.”1

DISCUSSION

I. Father’s Argument Regarding Inaccurate Translations Is Unpreserved

{12} Father spends a significant amount of time in his brief arguing that the certified 

interpreter made incorrect translations during the May 2020 hearing.2 He claims his 

arguments were preserved during the November 2020 hearing, but provides no citations 

to when in the hearing he objected to the translations. See Rule 12-318(A)(4) NMRA 

(requiring that briefs “with respect to each issue presented, shall contain . . . a 

statement explaining how the issue was preserved in the court below, with citations to 

authorities, record proper, transcript of proceedings, or exhibits relied on”).

{13} “To preserve an issue for review, it must appear that a ruling or decision by the 

[district] court was fairly invoked.” Rule 12-321(A) NMRA; see Benz v. Town Ctr. Land, 

LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (“To preserve an issue for review on appeal, 

it must appear that appellant fairly invoked a ruling of the [district] court on the same 

grounds argued in the appellate court.” (internal quotation marks and citation omitted)). 

Father presented no evidence to the district court that the translations were incorrect. 

The interpreter’s translations and Father’s objections to them are factual matters to be 

decided based on evidence explaining their meaning. This Court is not in a position to 

evaluate the accuracy of those translations without a ruling from the district court based 

on a record of argument and evidence concerning the translations. We conclude, 

therefore, that Father’s arguments regarding inaccurate translations were not preserved 

 

1We note that had Father’s counsel provided a thorough review of the May 2020 hearing, as required by 

Rule 12-208(D)(3) NMRA, and not obfuscated the fact that Father assented to terms reflected in the final 

order, the result would have been the same for Father while saving this Court’s judicial resources. We 

admonish counsel to be mindful that this Court relies upon the candor of appellate practitioners. See Rule 

16-303(A)(1) NMRA (“A lawyer shall not knowingly . . . make a false statement of fact or law to a 

tribunal.”); In re Chavez, 2013-NMSC-008, ¶¶ 23, 26, 299 P.3d 403 (suspending an attorney from the 

practice of law for, inter alia, a “demonstrated pattern of dishonesty”).

2Father also devotes considerable briefing space providing his own translation of the parties’ interactions 

at the May 2020 hearing. This, of course, is improper and we pay his effort no regard. 
and we decline to address them. See Crutchfield v. N.M. Dep’t of Tax’n & Revenue, 

2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273 (“Absent . . . any obvious 

preservation, we will not consider the issue.”).

II. Father’s Agreement Was Knowing and Voluntary

{14} Father next argues that his agreement to the terms of the Agreements was not 

knowing and voluntary, and thus they are not enforceable. Resolution of this issue 

primarily presents an issue of substantial evidence. Given Father’s failure to cite to the 

record, we would normally not undertake a substantive review. See Chavez v. S.E.D. 

Labs., 2000-NMCA-034, ¶ 26, 128 N.M. 768, 999 P.2d 412 (“We review substantial 

evidence claims only if the appellant apprises th[is] Court of all evidence bearing upon 

the issue, both that which is favorable and that which is contrary to [the] appellant’s 

position.”). In the interest of completeness and finality, we exercise our discretion to 

address the issue. 

{15} A stipulated judgment, otherwise known as a consent judgment, “is a negotiated 

agreement between the parties that is entered as a judgment of the court.” Pope v. Gap, 

Inc., 1998-NMCA-103, ¶ 22, 125 N.M. 376, 961 P.2d 1283. “[S]tipulated judgments 

have characteristics of both judgments and contracts.” Allred v. N.M. Dep’t of Transp., 

2017-NMCA-019, ¶ 29, 388 P.3d 998. Stipulated judgments are “similar to a judgment 

because [they are] entered and enforceable as a judgment; however, [they are] like a 

contract because [their] terms and conditions are reached by the mutual agreement of 

the parties.” Pope, 1998-NMCA-103, ¶ 22. Stated more clearly, stipulated judgments 

are “achieved by negotiation and settlement, rather than by a full-blown, contested 

adjudication of all issues.” Id. ¶ 27 (internal quotation marks and citation omitted). “As a 

general rule, a stipulated judgment is not considered to be a judicial determination, but a 

contract between the parties.” Allred, 2017-NMCA-019, ¶ 29 (alteration, internal 

quotation marks, and citation omitted). As such we look to contract law. “Contract 

interpretation is a matter of law that we review de novo.” Rivera v. Am. Gen. Fin. Servs., 

Inc., 2011-NMSC-033, ¶ 27, 150 N.M. 398, 259 P.3d 803.

{16} “Ordinarily, to be legally enforceable, a contract must be factually supported by 

an offer, an acceptance, consideration, and mutual assent.” Hartbarger v. Frank Paxton 

Co., 1993-NMSC-029, ¶ 7, 115 N.M. 665, 857 P.2d 776. Importantly, in order for a 

binding contract to exist “there must be an objective manifestation of mutual assent by 

the parties to the material terms of the contract.” Pope, 1998-NMCA-103, ¶ 11. Parties 

mutually assent “when they have the same understanding of the contract’s terms; where 

they attach materially different meanings to the terms, there is no meeting of the minds.” 

DeArmond v. Halliburton Energy Servs., Inc., 2003-NMCA-148, ¶ 20, 134 N.M. 630, 81 

P.3d 573. “Mutual assent is based on objective evidence, not the private, undisclosed 

thoughts of the parties.” Pope, 1998-NMCA-103, ¶ 13.3

 

3We disagree with the district court’s assertion that its oral acceptance of the parties’ agreement 

constituted an “order.” The general rule is that oral rulings are not in any sense final, but rather are 

subject to modification—sua sponte by the court or by motion—at any time prior to entry of a formal 
{17} The record—in particular the official translation of the conversation—

demonstrates that Father affirmatively agreed to the Agreements. Mother’s counsel 

proposed terms—that Father agreed to—for sole legal and physical custody with 

visitation on a “typical one third two thirds” timing. The district court made sure to clearly 

delineate whether it was sole legal custody, sole physical custody, or both. Mother’s 

counsel laid out that the social security benefits would follow the children. He then noted 

that there was a sticking point between the parties regarding the home and Father’s 

401k, but the parties agreed that Mother would get the home and Father would get the 

401k. They also agreed to parentage of the eldest child. After a discussion about the 

social security benefits requiring a divorce decree, Father agreed that Mother would get 

the home and custody of the children, and Father would get the 401k. Mother then 

brought up the issue of the trailer and the tools inside the trailer. Father objected 

because their agreement was that “she would keep the house, keep the children and 

she was going to leave me be,” and clarified that Father “would keep everything, all [his] 

things but she would only keep the house and the children.” Later in the hearing Father 

stated, “That’s why I agreed with [Mother], you see, that she is going to keep the house, 

the children, and she would just leave me alone, that was it. That was the agreement. 

House, the children, and she would leave me alone.” Eventually, Mother agreed that 

Father would take the trailer. After the issue about the trailer was cleared up, the district 

court laid out the individual terms of the Agreements that Father had previously agreed 

to multiple times—that sole legal and physical custody of the children, the home, the 

social security, EBT, and Medicaid benefits all went to Mother while Father kept the 

trailer, its contents, and the 401k benefits. Father specifically agreed to issue a warranty 

deed for the home to Mother. The evidence demonstrates Father knowingly and 

voluntarily agreed to the terms of the Agreements during the May 27, 2020 hearing. 

III. Father’s Argument That the Agreements Were Unconscionable Is 

Unpreserved

{18} Father next argues that the Agreements were unconscionable because he was 

entitled to the home and the 401k, therefore he did not need to negotiate away that 

property. He also argues that he was unrepresented and did not understand the terms 

of the Agreements.

{19} Father does not explain where in the record these arguments were preserved. 

See Rule 12-318(A)(4). Upon our review of the record, Father did not preserve these 

arguments. See Benz, 2013-NMCA-111, ¶ 24. After Father first objected to the terms of 

the Agreements during the November 5, 2020 hearing, the district court told the parties 

that the proper procedural avenue to object to the agreements was through a motion to 

 

written order. See In re Adoption Petition of Rebecca M., 2008-NMCA-038, ¶ 9, 143 N.M. 554, 178 P.3d 

839 (noting our Supreme Court “has repeatedly held that the oral comments of a judge are not binding 

and that only a written judgment reflects the court’s decision”). The most proper procedure below would 

have been for Mother to file a motion for enforcement of the agreement, or for Father to have filed a 

proper motion denying that there was an agreement. That would have prompted a vehicle to examine the 

parties’ understanding of the conversation at the May 2020 hearing. None of that occurred here. The 

parties apparently ignored the events of the May 2020 hearing, which understandably frustrated the 

district court at their next meeting. 
reconsider the order after a written order was filed. Father did not do so. Before the 

order on the Agreements was entered, he instead filed a motion for presentment 

hearing, asserting that Father “withdraws his acquiescence to the purported agreement 

of May 27, 2020” and requested a “presentment hearing to discuss the order on the 

motion for summary judgment.” The district court held a presentment hearing. During 

the March 2021 presentment hearing, Father attempted to argue again that the district 

court did not enter an order on the Agreements at the May 2020 hearing. Father made 

no argument about the unconscionability of the Agreements. Father did not file any 

motions once the final order was filed addressing the unconscionability—or any other 

issue—with the final order. Thus, Father’s arguments are unpreserved. See Crutchfield, 

2005-NMCA-022, ¶ 14.

IV. The District Court Did Not Err in Denying Father’s Motion for Summary 

Judgment and Not Going to Trial

{20} Father’s final argument is that the parties should have gone to trial and the 

district court should have ruled on Father’s motion for summary judgment. 

{21} As we noted above, Father agreed to the Agreements at the May 2020 hearing. 

After this hearing, Father spent months insisting that he did not make an agreement at 

that hearing. During that time, he filed a motion for summary judgment and Mother 

requested an evidentiary trial on the merits. Given the parties had agreed in open court 

on the division of property, child custody, child support, the social security, EBT, and 

Medicaid benefits, the requests for summary judgment and an evidentiary hearing were 

moot. See Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (“A 

case is moot when no actual controversy exists, and the court cannot grant actual 

relief.” (internal quotation marks and citations omitted)). Therefore, it was not an error 

for the district court to deny the motion and decline to hold a trial. Cf. Crutchfield, 2005-

NMCA-022, ¶ 36 (“A reviewing court generally does not decide academic or moot 

questions.”).

CONCLUSION

{22} We affirm. 

{23} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge,

retired, Sitting by designation

WE CONCUR:

KRISTINA BOGARDUS, Judge

KATHERINE A. WRAY, Judge