This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 RACHEL FAYE ANDRADE 2 n/k/a RACHEL FAYE ROGERS-ANDRADE, 3 Petitioner-Appellee, 4

v. NO. 35,428 5 MANUEL SEVE ANDRADE, 6 Respondent-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Gerard J. Lavelle, District Judge 9 New Mexico Legal Group. P.C. 10 Sarah M. Armstrong 11 Albuquerque, NM 12 for Appellee 13 Manuel Seve Andrade 14 Albuquerque, NM 15 Pro Se Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 182 {1} Respondent appeals, pro se, from the distri ct court’s final decree of divorce. We 1 issued a calendar notice proposing to affirm. Respondent has filed a response. We 2 affirm the district court. 3 {2} In this appeal, Respondent has challeng ed the division of retirement benefits 4 ordered by the final decree of divorce. [DS 24-25] Prior to the entry of the decree, 5 Respondent had entered into a legal separation agreement that, among other things, 6 addressed the division of retirement benef its. [RP 32, 36-40] Respondent subsequently 7 filed a pro se motion to change the divi sion of benefits. [RP 52] The issue was 8 resolved pursuant to a memorandum agreemen t signed by the parties, as well as their 9 respective attorneys. [RP 94-96] This agreement was incorporated into the final 10 decree. [RP 91-93] See Gordon v. Gordon , 2011-NMCA-044, ¶ 13, 149 N.M. 783, 11 255 P.3d 361 (stating that our case law provi des that once a settlement agreement 12 between divorcing spouses has been “adoptedand incorporated in [a] final divorce 13 decree, the underlying agreement is deemed to have merged with the decree” (internal 14 quotation marks and citation omitted)). Instead of requesting that the district court set 15 aside the final decree, Respondent filed a noti ce of appeal to this Court. However, as 16 our calendar notice pointed out, because Res pondent has not asked the district court 17 in the first instance to set aside the decree, our review is bound by the agreement [RP 18 94]. Defendant’s remedy is to seek to set aside the agreement in the district court 193 pursuant to Rule 1-060(B) NMRA. See id. ¶¶ 15-20 (discussing setting aside marital 1 settlement agreements). 2 {3} In his response to our calendar notice, Respondent simply points out a 3 typographical error in the affidavit of Petiti oner’s attorney, wherein the attorney states 4 that “Respondent has paid” a specific amount of attorney fees, instead of stating that 5 Petitioner has paid that amount up to the referenced date. [RP 104, MIO 1] The 6 attorney fees issue is not part of this appeal. Respondent chose to appeal from the final 7 decree, without waiting for resolution of th e attorney fees issue. [RP 91, 99, 105] 8 When there is a judgment on the merits and a prospective award of attorney fees, our 9 Supreme Court has recognized a “twilight zone” of finality, permitting a party to 10 either file an appeal prior to the entry of th e attorney fees order or to appeal after that 11 order has been filed. See Trujillo v. Hilton of Santa Fe , 1993-NMSC-017, ¶¶ 3, 5, 115 12 N.M. 397, 851 P.2d 1064. As indicated above , Respondent chose to appeal from the 13 judgment on the merits. As su ch, any issues related to attorney fees needs to be 14 addressed in a separate appeal. 15 {4} With respect to the current appeal, Respondent has not pointed out any errors 16 in our calendar notice. Accordingly, we affirm the district court. See Hennessy v. 17 Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have 18 repeatedly held that, in summary calendar cases, the burden is on the party opposing 19 the proposed disposition to clearly point out errors in fact or law.”). 204 {5} IT IS SO ORDERED. 1

__________________________________ 2 LINDA M. VANZI, Chief Judge 3 WE CONCUR: 4

_________________________________ 5 JAMES J. WECHSLER, Judge 6

_________________________________ 7 TIMOTHY L. GARCIA, Judge 8