IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 EVA RADWANSKI FOX 2 n/k/a EVA FOX, 3 Petitioner-Appellant, 4 v. No. 28,011 5 RICHARD Z. RADWANSKI, 6 Respondent-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Deborah Davis Walker, District Judge 9 Carpenter Law, PC 10 Joshua Carpenter 11 Albuquerque, NM 12 for Appellant 13 L. Helen Bennett, P.C. 14 L. Helen Bennett 15 Albuquerque, NM 16 for Appellee 17 MEMORANDUM OPINION 18 SUTIN, Judge. 19 Appellant Eva Fox (Wife) appeals the district court’s judgment in favor of 20 Richard Radwanski (Husband) on his motion for modification of the marital 21 settlement agreement the parties entered into in 2000. Wife contends that the district 222 court erred by (1) reducing spousal support, (2) clarifying the retirement benefits 1 provision in the marital settlement agreement, (3) requiring the parties to bear their 2 own attorney fees, and (4) calculating the judgment. We hold that the court did not 3 err, and we affirm. 4 BACKGROUND 5 Husband and Wife were married in Poland in 1973 and later became United 6 States citizens. After tw enty-seven years of marriage, Wife filed for divorce on 7 November 20, 2000. The marital settleme nt agreement (MSA) was filed the same 8 day. The final divorce decree, which in corporated the MSA, was filed on November 9 27, 2000. 10 The provisions of the MSA at issue in this appeal concern spousal support and 11 retirement benefits. With respect to s pousal support, Husband was required to pay 12 Wife $3,000 every month in alimony as long as his salary did not decrease 13 significantly. If Husband’s salary decreased significantly, the MSA stated that 14 alimony would be adjusted to 30% of Husband’s monthly employment income. In 15 addition, the MSA stipulated that Husband’ s obligation to pay alimony to Wife would 16 continue regardless of any future changes in Wife’s marital status. 173 In the provision governing the division of community property, the parties 1 agreed that Wife would receive as her separate property a share of Husband’s 2 retirement benefits as follows: 3 Upon [Husband’s] retirement, [Wife] shall be entitled to 50% of all 4 monetary benefits accruing from [Hus band’s] 401K plan as well as 30% 5 of any and all future income resulti ng from [Husband’s] retirement. For 6 purposes of this agreement, [Husband] shall be deemed to have retired 7 when [Husband] begins to receive benefits from his 401K plan, 8 regardless of whether [he] engages in post-retirement employment. 9 The parties also agreed that Husband would receive 10 [a]ll of [Husband’s] retirement benefits to which [Wife] is not entitled as 11 provided in this Agreement. In any event, [Husband] shall be entitled to 12 no more than 50% of the monetary benefits from his 401K plan and no 13 more than 70% of all other future benefits resulting from his retirement. 14 In addition, under the general terms and conditions, th e MSA provided that “[a]ny 15 property acquired by either party after the effective date sh all be the sole and separate 16 property of the party acquiring same.” 17 Wife was granted exclusive possession of a condominium in Los Angeles, 18 California, and Husband was required to pay the mortgage on that condominium until 19 the mortgage was paid in full. The parties agreed to sp lit the proceeds equally if the 20 condominium was sold. 214 Husband was working in Korea at the time the parties negotiated the MSA. 1 Wife was represented by counsel, but Husband was not. One month after entry of the 2 final decree, Wife remarried. Husband remarried in 2002 and now has a young child. 3 Husband currently works in D ubai, United Arab Emirates. 4 In February 2006, Husband filed a motion asking the district court to modify 5 the spousal support provision and clarify the retirement benefits provision of the 6 MSA. Husband asserted a subs tantial change in circumstances affected his ability to 7 pay spousal support based on the higher costof living in Dubai and his increased 8 expenses due to his new wifeand child. Husband also cl aimed that Wife’s resources 9 had increased due to her remarriage. Inaddition, Husband requested the court to 10 clarify that Wife was not entitled to any property including 401K contributions and 11 retirement benefits acquired af ter the date of the divorce. Husband asserted that Wife 12 was only entitled to receive 50% of the money accruing from Husband’s 401K as of 13 the date of the divorce and was not entitled to 30% of any future income resulting 14 from Husband’s retirement. Husband argued that the provision concerning the 15 division of retirement benefits as comm unity property conflicted with the provision 16 providing that Husband was entitled to all assets he acquired after the divorce. 175 Husband also sought to enforce the parties’ agreement regarding ownership and 1 disposition of the condominium. 2 Following several attempts at settlement , Wife filed a motion for an upward 3 modification of spousal support on November 27, 2006. Wife claimed that there had 4 been a significant change in circumst ances warranting an upward modification 5 because Husband’s income had increased significantly, Wifewas unable to meet her 6 monthly expenses and health care needs, and Wife was unable to obtain employment 7 due to her age and health. 8 After numerous hearings, the parties proceeded to trial. According to 9 Husband’s testimony, he was working in Ko rea at the time the parties entered the 10 MSA and was not represented by counsel. He was under pressure from Wife, who 11 was represented by a New Mexico attorney, to finalize the divorce so that she could 12 remarry. Husband had worked in Dubai as an engineer since 2004. Husband, who 13 was fifty-eight years old at the time of th e trial, was an at-will employee approaching 14 retirement age. His job stability was not good and employees nearing his age were 15 often terminated due to restrictions in D ubai against working past the age of sixty. 16 Despite an increase in salary from $144,000 to $155,331 since the divorce, the high 176 cost of living in Dubai made it difficult fo r Husband to pay the spousal support as set 1 out in the MSA to Wife and support his new family. 2 Wife, who was fifty-six years old at the time of trial, testified that she was 3 unable to work due to her age, health, language problems, and lack of marketable 4 skills. Wife’s new husband did not contribute to her support; her sole source of 5 income was from Husband’s spousal support. Although Wife was free of debt at the 6 time of the divorce, she had since incurred s ubstantial credit card debt. Wife claimed 7 that she needed more spousal support to meet her necessary expenses, including health 8 care. Wife had received the equivalent of a master’s degree in math in Poland and had 9 worked as a math teacher, a computer tec hnician, and skin care specialist during the 10 marriage. Since the divorce, Wife had notattempted to work and claimed health 11 problems prevented her from doing so. Hu sband challenged Wife’s testimony about 12 her reasonable and necessary expenses, her current husband’s ability to contribute to 13 her support, and her claim that health problems prevented her from working but not 14 from traveling. 15 After trial, the district court orally ru led that the retirement benefits provision 16 constituted a division of property, but interpreted the provi sion as being limited to the 17 retirement benefits in existence at the time of the divorce. The court reduced 187 Husband’s spousal support obligation to $1,750 effective March 1, 2006, and 1 calculated the potential amounts owed after overpayments and arrearage. The court 2 warned the parties that pursuing attorney fees or sanctions would be “throwing good 3 money after bad” as Husband was the prev ailing party but also had more resources. 4 The court noted it would be premature to litigate issues with respect to the 5 condominium. 6 The court invited proposed findings of f act and conclusions of law, which were 7 filed by both parties. Both parties subsequently filed requests for attorney fees and 8 costs. Wife requested $68,443.54. Husband requested $34,598.92 and asked that 9 Wife repay $5,450 in overpayments of spousalsupport. After a hearing, the district 10 court ruled that the parties should pay their own attorney fees and directed the parties 11 to file supplemental findings and conclusions if necessary. Neither party did. On 12 August 23, 2007, the district court entered its findings and conclusions and an order 13 and judgment. The court reduced Husband’s spousal support obligation to $1,750 per 14 month, ruled that Wife was not entitled to any portion of Husband’s retirement 15 contributions made after the date of the divorce, awarded a judgment against Wife of 16 $5,709 for Husband’s overpayment of spousalsupport, and declined to award either 17 party attorney fees or costs. This appeal followed. 188 DISCUSSION 1 I. The District Court Did Not Err in Modifying Spousal Support 2 Wife argues that the district court abus ed its discretion in reducing Husband’s 3 spousal support obligation by basing its determination that substantial changes had 4 occurred on erroneous considerations. Wi fe claims that the court improperly 5 considered changes that had been contemplated by the parties in the MSA and 6 therefore were not material. Wife also cl aims that the districtcourt erred by basing 7 its consideration of Wife’s need and Husb and’s ability to pay on facts that were not 8 supported by substantial evidence. 9 The district court has wide discretion to award or modify spousal support, and 10 its decision will only be set aside if it constitutes an abuse of discretion. See Martinez 11 v. Martinez , 1997-NMCA-125, ¶ 10, 124 N.M. 313, 950 P.2d 286; Ellsworth v. 12 Ellsworth , 97 N.M. 133, 134, 637 P.2d 564, 565 ( 1981). “An abuse of discretion 13 occurs when a ruling is clearly contrary to the logical conclusions demanded by the 14 facts and circumstances of the case.” Sims v. Sims , 1996-NMSC-078, ¶ 65, 122 N.M. 15 618, 930 P.2d 153. Further, to constitute an abuse of discretion, “it must be shown 16 that the court’s ruling exceeds the bounds of all reason . . . or thatthe judicial action 17 taken is arbitrary, fanc iful, or unreasonable.” Meiboom v. Watson , 2000-NMSC-004, 189 ¶ 29, 128 N.M. 536, 994 P.2d 1154 (alteration in original) (internal quotation marks 1 and citation omitted). “When there exist reasons both supporting and detracting from 2 a trial court decision, there is no abuse of discretion.” Talley v. Talley , 115 N.M. 89, 3 92, 847 P.2d 323, 326 (Ct. App. 1993). “Where the court’s discretion is fact-based, 4 we must look at the facts relied on by the trial court as a basis for the exercise of its 5 discretion, to determine if these fact s are supported by substantial evidence.” 6 Apodaca v. AAA Gas Co. , 2003-NMCA-085, ¶ 60, 134 N.M. 77, 73 P.3d 215 (internal 7 quotation marks and citation omitted). 8 A. The District Court Properl y Considered Whether Substantial 9 Changes in Circumstances Warranted Modification of Spousal Support 10 We first turn to Wife’s argument that the district court improperly considered 11 erroneous factors. Under NMSA 1978, Section 40-4-7(B)(2)(a) (1997), the district 12 court has the discretion to modify orders of spousal support “whenever the 13 circumstances render suchchange proper[.]” See also § 40-4-7(F) (providing that the 14 district court “shall retain jurisdiction over proceedings involving periodic spousal 15 support payments when the parties have beenmarried for twenty years or more prior 16 to the dissolution of the marriage”). In de termining whether to modify or terminate 17 spousal support, the district court must cons ider factors such as age and health, means 18 of support, current and future earnings and earning capacity, good-faith efforts to 1910 maintain employment or become self-supporting, reasonable needs, duration of the 1 marriage, amount of property awarded, assets and liab ilities, and settlement 2 agreements. See § 40-4-7(E). The district court’ s task is “to balance the needs, 3 resources, and capabilities of the parties.” Cherpelis v. Cherpelis , 1996-NMCA-037, 4 ¶ 14, 121 N.M. 500, 914 P.2d 637. 5 In challenging the district court’s finding that there were substantial changes in 6 circumstances, Wife argues that the court failed to identify those changes. Wife 7 claims that a careful review of the reco rd reveals that the only changes that had 8 occurred concerned Wife’s remarriage and Hu sband’s ability to pay. Wife contends 9 that the court abused its discretion in considering these factors because the express 10 terms of the MSA precluded it from doing so . According to the MSA, Wife argues, 11 spousal support would continue at $3,000 per month unless there was a significant 12 decrease in Husband’s salary and regardless of remarriage. 13 We first take issue with Wife’s broad a ssertion that the district court failed to 14 identify the substantial changes that jus tified a reduction in spousal support. Our 15 review of the record indicates that the court carefully c onsidered many factors relevant 16 to Husband’s request for modification. After an evidentiary hearing, the district court 17 acknowledged that the MSA represented Husband’s desire to provide for Wife after 1811 the divorce, but noted that there “just isn’t enough money to go around to support all 1 these people.” The court specifically noted the following substantial changes and 2 other relevant facts. Wifehad maintained her standardof living and had acquired a 3 tremendous amount of credit card debt. Wife was providing a house and support for 4 her new husband through her spousal support. The court also noted that it was not fair 5 or equitable to require Husband to support Wife’s current husband or Wife’s mother. 6 Husband’s salary had “increased slightly,” but his expenses had increased as well due 7 in part to the cost of living in Dubai compared to Korea. Wife had limited 8 employment opportunities, but wa s not totally unemployable. Both parties had limited 9 savings and resources for retirement. C ontrary to Wife’s assertion, the record 10 indicates that the district court carefu lly balanced the factors it was required to 11 consider under Section 40-4-7(E). 12 Despite the express terms of the MSA, th e district court was not precluded from 13 considering factors such as Wife’s remarriage and Husband’s ability to pay. Our 14 cases make clear that the statutory factors in Section 40-4-7(E) become part of the 15 final decree. See, e.g. , Scanlon v. Scanlon , 60 N.M. 43, 49, 287 P.2d 238, 242 (1955) 16 (stating that provisions of NMSA 1953, Section 22-7-6 (Vol. 5, 1953) relating to 17 circumstances affecting modification of aw ards of alimony at time of dissolution of 1812 marriage become part of the final decree). In Martinez , this Court determined that the 1 district court improperly focused on th e provisions of a final decree without 2 considering the factors it was required to consider under the statute. 1997-NMCA3 125, ¶¶ 14, 19 (holding that the failure to c onsider relevant factors in determining or 4 modifying an award of spousal support is anabuse of discretion). Thus, the district 5 court in the present case was required to c onsider the factors in Section 40-4-7(E) in 6 determining whether to modify or terminate spousal support. 7 We reject Wife’s contention that her remarriage could not be considered a 8 substantial change because it was contemplated by the parties at the time of the MSA. 9 The record indicates that the district court considered the parties’ agreement that there 10 would be no termination of spousal support ba sed on Wife’s remarriage, but also took 11 into account evidence about her remarriage in light of the pa ssage of time and 12 changing circumstances. See McClure v. McClure , 90 N.M. 23, 24, 559 P.2d 400, 401 13 (1976) (recognizing that the district court may consider the circumstance of time in 14 addition to other circumstances in determining whether a change in alimony is 15 warranted). The court considered factors such as the length of the marriage, the 16 capability of Wife’s current husband to c ontribute to her support, his legal duty to 17 support her, and his share of household expe nses. We see no abuse of discretion in 1813 the court considering remarriage as one of the factors affecting Wife’s need. See 1 Russell v. Russell , 101 N.M. 648, 650, 687 P.2d 83, 85 (1984) (recognizing that the 2 district court must consider all the circum stances to avoid imposing a hardship on the 3 supporting spouse and to prevent the other spouse from abdicating responsibility for 4 his or her own support and maintenance). Moreover, the district court did not 5 terminate spousal support base d on Wife’s remarriage. See Kuert v. Kuert , 60 N.M. 6 432, 439-40, 292 P.2d 115, 119-120 (1956) (holdi ng that remarriage creates a prima 7 facie case for termination of alimony unless the recipient demonstrates extraordinary 8 circumstances). Instead, while recognizing Wife’s need to take some responsibility 9 for her own support and her new husband’s duty to provide some support, the district 10 court appeared to consider the parties’ agreement about remarriage and determined 11 that exceptional circumstances justified continuing spousal support indefinitely, but 12 at a reduced amount. 13 We also reject Wife’s assertion that the district court erred in considering 14 changes in Husband’s employment situation. Wife argues that Husband agreed to pay 15 $3,000 per month in spousal support as long as his salary did not decrease 16 significantly. Wife contends that Husb and’s salary did not decrease, but instead 17 increased from $144,000 to $155,331. Despite th e increase, we do not agree that the 1814 district court abused its discretion in c onsidering factors such as Husband’s job 1 stability and the high cost of living at his current location. In light of Husband’s age 2 and approaching retirement, and his increas ed expenses due to living in Dubai and 3 supporting a new family, such evidence was rele vant to the court’s task of considering 4 Husband’s ability to pay spousal support. Thus, the court properly considered 5 whether Husband’s current working and liv ing situations constituted substantial 6 changes. 7 After carefully considering the factors in Section 40-4-7, the district court 8 determined that it was no longer reasonabl e for Husband to provide $3,000 a month 9 in spousal support. The court continued s pousal support indefinitely, but modified it 10 to reflect current economic realities and equities. We are persuaded that the court 11 considered the MSA, the passage of time, and changed circumst ances, and we believe 12 the court struck an appropriate balance. The court’s determin ation was based on 13 proper factors and is supported by substantial evidence. 14 B. The District Court’s Finding That Wife Had 15 Available Assets Was Supported by Substantial Evidence 16 Wife argues that the district court erred in finding that she had retirement 17 benefits in considering Wife’s need for spousal support and for the purpose of ruling 1815 on modification. Wife contends that this finding is not supported by substantial 1 evidence. 2 The district court found that Wife’s available assets included “her retirement 3 benefits, her interest in [Husband’s] 401k, and her interest in the parties’ 4 condominium.” Wife contends that there was no evidence that she had independent 5 retirement benefits apart from her interest in Husband’s 401K and that in fact she does 6 not have any retirement benefits of her own. 7 We first note that the MSA provided that Wife would receive all of her 8 retirement benefits as her separate property. Because the MSA referred to Wife’s 9 retirement benefits, we are not persuaded that the district co urt erred by including 10 Wife’s retirement benefits in the list of av ailable resources. Moreover, any error the 11 district court made by referring to Wife’s retirement benefits did not materially affect 12 the district court’s ruling. Regardless of whether Wife had re tirement benefits, the 13 district court also considered Wife’s intere st in Husband’s 401K and her interest in the 14 parties’ condominium as resources availabl e to Wife. Thus, the finding was supported 15 by substantial evidence. See Lebeck v. Lebeck , 118 N.M. 367, 371, 881 P.2d 727, 731 16 (Ct. App. 1994) (“Erroneous findings of fact unnecessary to support the judgment of 17 the court are not grounds for reversal.”). 1816 C. The District Court Did Not Abuse Its Discretion in 1 Finding That Husband’s Disposable Income Was Less Than $500 2 Wife argues that the district court’s fi nding that Husband’s disposable monthly 3 income was less than $500 was not supported by substantial evidence. Wife contends 4 that the correct calculation for the amountof money available to Husband after 5 payment of his monthly expenses should have been close to $900 per month. 6 The district court found that Husband had a net monthly income of $11,000 and 7 reasonable and necessary expe nses of about $10,500, which left a disposable monthly 8 income of less than $500. Wife contends that Husband’s testimony and his 2006 W-2 9 form indicated that Husband’s monthly income was $11,449.84 while his monthly 10 expenses were $10,573.59, which left a ne t monthly disposable income of $876.25. 11 After reviewing the testimony referred to in Wife’s brief, we do not agree with 12 Wife’s assertion that the evidence demons trated that Husband’s net monthly income 13 was $11,449.84 and his monthly expenses were $10,573.59. Rather, after Husband 14 testified at length about his income, deduc tions, and expenses, the district court 15 clarified that, according to Husband, his gross monthly income was $12,944, his 16 monthly deductions were $1,905, and his net income was $11,039. After subtracting 17 expenses of $10,716 from his net income, Hu sband had about $323 le ft. Wife did not 18 disagree with the court’s calculations ba sed on Husband’s testimony. Although Wife 1917 now seeks to challenge these figures on appeal, she does not explain how she did so 1 before the district court. Wife did not re quest a finding of fact or conclusion of law 2 on Husband’s expenses or his net income. In contrast, Husband requested findings 3 about his income, deductions, expenses, and disposable income that were consistent 4 with his testimony. If there was any error in the district court entering findings that 5 Husband’s net monthly income was $11,000 and his reasonable and necessary 6 expenses were $10,500, Wi fe has failed to demonstrate that error. See Bustos v. 7 Bustos , 2000-NMCA-040, ¶ 27, 128 N.M. 842, 999 P.2d 1074 (“A party who fails to 8 tender a request for a specific finding of fact waives that issue.”). 9 Moreover, we are not persuaded an error of $376 would constitute an abuse of 10 discretion. In making its equitable determination, the district court found that 11 Husband was paying Wife $3, 000 per month in spousal support plus $1,053 per month 12 in mortgage payment and taxes for the c ondominium in which Wife lived, which left 13 Husband with very little disposable income after providing for his current family. Not 14 only does any error appear to be de minimus, but Husband’s ability to pay is only one 15 factor the district court must consider in determining whether to modify spousal 16 support. Wife has not persuaded us that this alleged error re sulted in an abuse of 17 discretion. 1818 II. The District Court Properly Clarif ied the Retirement Benefits Provision 1 Wife argues that the district court did not have jurisdiction to make any ruling 2 on the retirement benefits provision. Wife contends that the determination that Wife 3 was not entitled to any portion of Husband’s retirement contributions made after the 4 divorce was not a clarification, but a modi fication of the original judgment. Wife 5 contends that a voluntary settlement of co mmunity property cannot be set aside by the 6 court granting the divorce absent fraud, dure ss, mistake, breach of fiduciary duty, or 7 other similar equitable grounds for invalidating an agreement. Wife contends that 8 none of these grounds were present, and the court overreached its jurisdiction under 9 Section 40-4-7. We disagree. The partie s voluntarily agreed to a division of their 10 community property, including Husband’s retirement benefits. Once the agreement 11 exists, “the district court can interpret, if it is ambiguous, and also enforce.” 12 Weddington v. Weddington , 2004-NMCA-034, ¶ 17, 135 N.M. 198, 86 P.3d 623. 13 Wife argues that even if th e district court had jurisdiction to address the issue 14 of retirement benefits, the court abused its discretion because the finding that the 15 provision was ambiguous was not supported by s ubstantial evidence. Wife argues that 16 the plain language of the MSA could not have been more clear. 1719 We first clarify the appropriate standard of review. Whether an agreement 1 contains an ambiguity is a question of law that we review de novo. Id. ¶ 19. A 2 contract is ambiguous and open to interpre tation when its language is “reasonably and 3 fairly susceptible to di fferent construction.” Id. “Once we agree with the district 4 court that an ambiguity exists, if the court’s interpretation is consistent with the 5 language of the agreement read as a whol e and is supported by the record, we review 6 the court’s resolution of the ambiguity for abuse of discretion.” Id. 7 The district court found that the languagereferring to the division of Husband’s 8 retirement benefits was ambiguous because it conflicted with another provision in the 9 MSA. In the section dividing community property, the MSA provided that upon 10 Husband’s retirement, Wife “shall be entitled to 50% of all monetary benefits accruing 11 from [Husband’s] 401K plan as well as 30% of any and all future income resulting 12 from [Husband’s] retirement.” The MSA al so provided that Husband was entitled to 13 “[a]ll of [his] retirement benefits to whic h [Wife] is not entitled as provided in this 14 Agreement. In any event, [Husband] shall be entitled to no more than 50% of the 15 monetary benefits from his 401K plan and no more than 70% of all other future 16 benefits resulting from his retirement.” Ho wever, the section providing general terms 1720 and conditions stated, “Any property acquired by either party after the effective date 1 shall be the sole and separate pr operty of the party acquiring same.” 2 An ambiguity exists if a contract is “reasonably and fairly susceptible of 3 different constructions.” Mark V, Inc. v. Mellekas , 114 N.M. 778, 781, 845 P.2d 1232, 4 1235 (1993). “An ambiguity [also] exists . . . when the parties’ expressions of mutual 5 assent lack clarity.” Id. Here, the language concerning Husband’s retirement benefits 6 is vague and conflicts with language in another part of the agreement. Thus, it is 7 obvious from the language in the MSA that it is reasonably and fairly susceptible of 8 different constructions and that the partie s did not agree to express meaning of the 9 terms. Under these circumstances, we do not think the district court erred in 10 determining that the retirement benefits provision was ambiguous. 11 “Once the agreement is found to be ambiguous, the meaning to be assigned the 12 unclear terms is a question of fact.” Id. “However, in the event the parties do not 13 offer evidence of the facts and circumst ances surrounding execution of the agreement 14 . . ., the court may resolve any ambiguity as a matter of law by interpreting the 15 contract using accepted canons of contract construction.” Id. at 782, 845 P.2d at 1236. 16 Wife does not point us to anything in the record to indicate thatshe offered evidence 17 of the parties’ intent. Her requested findings concerning the retirement benefits 1821 consist only of the argument that the court did not have jurisdiction. She requested 1 a conclusion that the terms of the MSA regarding Husband’s 401(k) and retirement 2 accounts should remain unchange d. Wife’s argument on appeal simply attacks the 3 finding of ambiguity as running contrary to se ttled principles of contract interpretation 4 which hold that a court will not interpret a c ontract such that a particular clause or 5 provision annuls another. Wife also contends that the specific provision regarding 6 retirement income serves as an excepti on that governs over the general language 7 regarding property acquired after divorce. 8 In response, Husband argues that the district court recognized the inherent 9 ambiguity in the MSA and resolved it c onsistent with New Mexico law and the 10 equities in this case. Based on the recordbefore us, we belie ve Husband’s argument 11 is more persuasive. 12 Upon dissolution of marriage, community property is to be divided equally. See 13 Ruggles v. Ruggles , 116 N.M. 52, 58, 860 P.2d 182, 188 (1993). Retirement benefits 14 earned during a marriage are community property, which are valued and divisible 15 upon divorce. Id. Thus, in this case, any future , unearned retirement funds referred 16 to in the provisions dividing community property were not community property. 17 Accordingly, the provision for future retirement benefits did not constitute a division 1822 of community property. It also conflicted with the later provision stating that property 1 acquired after the divorce was separate property. 2 In the absence of argument and evidence that the parties intended to draft the 3 division of retirement benefits in the community property provision contrary to 4 community property principles, and becau se Wife’s view of the provision on 5 retirement benefits runs contrary to the later provision in the MSA, we affirm the 6 district court’s interpretation of the MSA. The evidence supports a reasonable 7 determination that the reference was ambi guous and not in conformity with law. We 8 see no abuse of discretion by the court re solving the ambiguity as it did. The 9 resolution was consistent with New Mexico law. 10 III. The District Court Acted Within Its 11 Discretion in Ruling on Attorney Fees 12 Wife argues that the district court abused its discretion in denying her request 13 for attorney fees. Wife contends that th e court failed to give proper consideration to 14 what she characterizes as an extreme economic disparity between the parties. 15 The district court has discretion to aw ard attorney fees in domestic relations 16

cases. See § 40-4-7(A); Rule 1-127 NMRA; Bustos , 2000-NMCA-040, ¶ 24. We 17 review the determination of whether to make an award for abuse of discretion. 1823 Bustos , 2000-NMCA-040, ¶ 24. An abuse of discretion occurs when the district 1 court’s ruling is contrary to logic and reason. Id. 2 The factors the district court must cons ider in determining whether to award 3 attorney fees include the disp arity of the parties’ resources , prior settlement offers, the 4 total amount of fees and costs expended by each party, and success on the merits. 5 Rule 1-127. Here, the district court noted that Husband had more resources than Wife. 6 However, the court also determined that Husband was the prevailing party. The 7 district court’s findings further indicate thatthe court consideredthe nature of the 8 proceedings and prior settlement offers and that Wife spent $63,793 in attorney fees 9 and costs while Husband spent $34,599. In discussing its ruling on attorney fees, the 10 court noted that numerous fees were incurre d by Wife’s various trial attorneys due to 11 drafting problems, a misrepresentation about a settlement agreement, and improper 12 notice for expert witnesses. The court noted that Husband should not have to be 13 responsible for those fees. The court cons idered settlement offers, but did not weigh 14 the factor in favor of either party. 15 “[W]e review the district court’s decision bearing in mind all of the factors it 16 was required to consider.” Bursum v. Bursum , 2004-NMCA-133, ¶ 27, 136 N.M. 584, 17 102 P.3d 651. Disparity is only one factor and “cannot support reversal where the 1824 other factors weigh in favor of the award of attorney fees.” Weddington , 2004- 1 NMCA-034, ¶ 28. Given the court’s rec ognition that Husband was the prevailing 2 party, the district court’s decision not to aw ard attorney fees to Wife was not an abuse 3 of discretion. In addition, the court may have taken financial disparity into account 4 by refusing to award Husband his requested attorney fees. 5 Wife further contends that the district court deprived her of the ability to pay 6 her attorney fees by imposing a judgment and that the court’s erroneous findings on 7 Husband’s disposable income and Wife’s retirement benefits had an adverse impact 8 on the court’s determination about the partie s’ ability to pay. The district court’s 9 findings indicate that it was aware of the parties’ resources and expenses. In 10 determining the ability to pay attorney fees, the district court may have considered that 11 Husband’s disposable income was limited. Also, as discussed earlier, even though we 12 do not agree that the district court erred in making the challenged findings, we think 13 that any error was de minimus. Thus, we are not persuaded that the court abused its 14 discretion based on an improper consider ation of the parties’ ability to pay. 15 Finally, we note that the district court found that both parties’ counsel did an 16 excellent job at trial. See Bursum , 2004-NMCA-133, ¶ 27 (recognizing that economic 17 disparity did not prevent either side fro m making its case). The district court 1825 expressly warned the parties that it was not inclined to award fees and costs. The 1 court’s oral and written findings make cl ear that it considered all the proper 2 circumstances in determining whether to award attorney fees. Thus, we are not 3 persuaded that the district court abused its discretion by requiring each party to bear 4 their respective attorney fees and costs. 5 IV. The District Court Correctly Calculated the Judgment 6 Wife argues that the district court’s cal culation of the judgment against her was 7 erroneous. Wife contends that the court should have awarde d Husband $4,459 instead 8 of $5,709. We disagree. 9 Because the district court made the re duction of spousal support retroactive to 10 March 1, 2006, the court concluded that Husband overpaid Wife $1,250 per month in 11 spousal support from March 1, 2006, thr ough April 2007. Contrary to Wife’s 12 assertion, the time period encompassed fourteen months for a total of $17,500. The 13 court then offset $11,791 that Husband owed Wife for arrearage and interest from the 14 overpayment. Thus, the district court co rrectly calculated the judgment awarded to 15 Husband as $5,709. 1626 CONCLUSION 1 The district court’s order and judgmen t granting Husband’s motion to modify 2 spousal support was supported by substantial evidence and was in accordance with 3 applicable law and equitable principles. The court did not impermissibly modify the 4 MSA and did not abuse its discretion in de termining not to award attorney fees or 5 costs. Nor did the court err in calculating the amount to be awarded to Husband. We 6 affirm. 7 IT IS SO ORDERED. 8

__________________________________ 9 JONATHAN B. SUTIN, Judge 10

WE CONCUR: 11

_______________________________ 12 JAMES J. WECHSLER, Judge 13

_______________________________ 14 MICHAEL E. VIGIL, Judge 15