This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 MICHAEL BRANCH, 7 Petitioner-Appellant, 8

v. NO. 30,740 9 ROBBIN BRANCH, 10 Respondent-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Karen L. Townsend, District Judge 13 Law Offices of Jane B. Yohalem 14 Jane Bloom Yohalem 15 Santa Fe, NM 16 for Appellant 17 Titus & Murphy Law Firm 18 Jennifer D. Yoder 19 Farmington, NM 20 for Appellee 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 Husband challenges the division of property in this divorce case. In particular, 24 Husband claims that the Arizona home s hould have been designated by the district 25 court as his separate property. We proposed to affirm the district court’s decision in 262 two calendar notices, and we have recei ved responses from Hu sband. After due 1 consideration of Husband’s arguments, we affirm. 2 In this case, the parties owned separate homes in Alaska prior to marriage. 3 Both parties sold their homes before movi ng from Alaska. [DS 4] Husband deposited 4 the proceeds from his Alaska home into hi s separate account, an account in which 5 community funds were also deposited. Prior to marriage, the parties entered into a 6 premarital agreement providing th at, “[e]ach party shall have an equal interest in the 7 property acquired by the parties during the cour se of the marriage, if that property is 8 titled in the name of both parties.” [RP 101] A home was purchased in Arizona. The 9 home was titled in the names of both parties and the mortga ge was paid with 10 community funds. Husband claims that the down payment for the home was paid out 11 of his separate bank account with proceeds from the sale of his separate Alaska 12 property. Therefore, Husband claims, th e Arizona home is his separate property. 13 Property acquired by either or both parties during their marriage is 14 presumptively community property, a presumption that is subject to being rebutted by 15 a preponderance of the evidence. See Stroshine v. Stroshine , 98 N.M. 742, 743, 652 16 P.2d 1193, 1194 (1982); see also NMSA 1978, § 40-3-12 (1973). In order to 17 overcome the presumption of community property, separate property must be 18 traceable and it cannot be so intermingled with community property that it cannot be 193 identified. Mitchell v. Mitchell , 104 N.M. 205, 212, 719 P.2d 432, 439 (Ct. App. 1 1986). Husband, the party claiming that the property is his separate property, had the 2 burden of presenting evidence to establis h separate ownershi p by a preponderance of 3 the evidence. See English v. Sanchez , 110 N.M. 343, 345, 796 P.2d 236, 238 (1990). 4 Based on the evidence presente d at trial, the district court found that the down 5 payment on the home was made from an acc ount in which proceeds from the sale of 6 Husband’s separate property as well as community funds were deposited. Funds from 7 the account, including community funds, were used to pay the mortgage on the home. 8 In addition, Wife testified that the parties intended for the house to be community 9 property. While the district court did not specifically use terms such as “traceable” 10 or “intermingled” in making its decision about the house, it is clear from the findings 11 and conclusions of the district court thatit did not believe that Husband presented 12 sufficient proof that the separate pr oceeds from Husband’s Alaska home were 13 traceable or were not so intermingled w ith community funds that they could be 14 identified. In other words, Husband did not rebut the presumption that the house was 15 community property. 16 Husband continues to claim that the di strict court applied the wrong standard 17 of view in that the burden should have b een placed on Wife to show that Husband 18 intended to transmute his se parate property into commun ity property. We hold that 194 the correct standard was applied in this case. As discussed in our second notice, 1 community property is property acquired duri ng marriage and is attributable to the 2 earnings of one or both parties. Swink v. Fingado , 115 N.M. 275, 292-93, 850 P.2d 3 978, 995-96 (1993). The Arizona home in th is case was acquired during marriage and 4 was attributable to both separate and community property. The home was not 5 purchased entirely with Husband’s separateproperty and Husband’ s separate property 6 was not merely placed into joint tenancy with Wife, which woul d be required before 7 shifting the burden to Wife to establish transmutation. Therefore, the home is 8 presumptively community property and Husband bore the burden of proving 9 otherwise. Husband did not meet that burden. 10 Husband argues that this Court is misreading the district court’s decision. 11 According to Husband, the court did not make a finding that his separate funds were 12 converted to or commingled with community funds, and without such a finding, the 13 court could not apply the presumption of community property. [MIO 5] Husband 14 contends that the districtcourt “plainly agreed” that the house was acquired with 15 Husband’s separate “traceable” funds. [Id.] Husband claims that he was paid just 16 over $167,000 for the Alaska house and he paid just over $161,000 down on the 17 Arizona house. [MIO 4] Also, Husband st ates, “[t]he court found that remaining 18 $6,000 from the sale of Husba nd’s Alaska house were used to pay a community credit 195 card bill.” [Id.] Husband refers to dollar amounts that do not appear in the record 1 below, including in Husband’s proposed findings, the tape log, or the district court’s 2 findings and conclusions. We decline to read into the findings information that is not 3 there. In addition, “[u]nless clearly erroneous or deficient, findings of the trial court 4 will be construed so as to uphold a judgment rather than to reverse it.” Herrera v. 5 Roman Catholic Church , 112 N.M. 717, 721, 819 P.2d 264, 268 (Ct. App. 1991). 6 Furthermore, we do not believe that the district court “agreed” with Husband’s 7 argument that the Arizona house was acquired with Husband’s separate property. The 8 court found that most, but not all, of th e separate proceeds were used to buy the 9 Arizona house, and also found that the f unds to purchase the home came from an 10 account in which community funds were also deposited. We fail to see how those 11 findings can be interpreted to mean that the Arizona home was acquired with 12 Husband’s separate and traceable funds, a nd we will not read the findings in that 13

manner. 14 Finally, Husband claims that it was not necessary for him to preserve a claim 15 that Alaska law applies in this case because application of New Mexico laws would 16 lead to the same result. In support of hi s claim, Husband argues that, in New Mexico 17 as in Alaska, property acquired during marriage by use of separate funds remains 18 separate property. [MIO 6] As previously discussed in this opinion, the district court 196 did not find that the home was purchased with only separate funds. Therefore, we 1 reject Husband’s argument. 2 The district court properly found that the property was presumptively 3 community property, and that Husband ha d not met his burden of overcoming the 4 presumption. We affirm the district court’s decision. 5 IT IS SO ORDERED. 6

7 RODERICK T. KENNEDY, Judge 8 WE CONCUR: 9

10 JAMES J. WECHSLER, Judge 11

12 MICHAEL E. VIGIL, Judge 13