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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

v. NO. 29,677 9 LESLIE EARL IMBODEN, 10 Respondent-Appellant/Cross-Appellee. 11

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 12 H.R. Quintero, District Judge 13 Lopez & Associates, P.C. 14 William Perkins 15 Silver City, NM 16 for Appellee/Cross-Appellant 17 Jim Foy & Associates 18 Jim Foy 19 Norman R. Wheeler 20 Silver City, NM 21 for Appellant/Cross-Appellee 22 MEMORANDUM OPINION 232 WECHSLER, Judge. 1 Respondent Leslie Earl Imboden (Hus band) appeals, and Petitioner Donna 2 Karen Imboden (Wife) cross-appeals, from the district court’s division of the parties’ 3 marital property. Our notice proposed to re verse and remand for the district court to 4 consider the merits of Husband’s moti on to reconsider. Wife filed a timely 5 memorandum in opposition. We are not persuaded by Wife’s arguments and, 6 therefore, reverse and remand. 7 On March 16, 2009, the district court en tered its judgment and order regarding 8 disposition of marital property. [RP 137] On April 15, 2009, Husband filed a “motion 9 to reconsider and stay.” [RP 154] On June 10, 2009, the district court entered an 10 order denying the motion to reconsider (order). [RP 193] The order sets forth the 11 district court’s determination that Husband’ s motion to reconsider was filed pursuant 12 to NMSA 1978, Section 39-1-1 (1917) and was deemed denied by operation of law 13 on May 16, 2009. [RP 193] However, the 2006 amendment to Rule 1-054.1 NMRA 14 superseded the portion of Section 39-1-1 thatstates that post-judgment motions filed 15 under that statute are automatically denied if not granted within thirty days of filing. 16 See Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co. , 2007-NMSC-051, ¶ 15, 142 17 N.M. 527, 168 P.3d 99; see also Dickens v. Laurel Healthcare, LLC, 2009-NMCA- 183 122, ¶ 6, ___ N.M. ___, ___ P.3d ___ (No. 29,239, June 18, 2009) (viewing Redi-Mix 1 as holding that when a post-judgment moti on that challenges the district court’s 2 determination of the parties’ rights is pending in the district court, the judgment or 3 order entered by the court remains non-final). Because the “deemed denied” provision 4 of Section 39-1-1 is not applicable, we dec line to consider the merits of the parties’ 5 issues and instead reverse and remand withinstructions for the district court to 6 consider the merits of Husband’s motion to reconsider. 7 In opposition to remand, Wife essentially asserts that this Court is over-reading 8 Albuquerque Redi-Mix, Inc. In this respect, Wife argues that the Redi-Mix holding is 9 intended to address only the lifting of th e automatic denial provision when post10 judgment motions are made pursuant to the Rules of Civil Procedure, such as the 11 motion to reconsider filed under Rule 1-059(E) NMRA as in Redi-Mix . [MIO 6] 12 According to Wife’s position, the ability to supersede the “deemed denied” provision 13 is limited to instances of motions made under the rules and when Section 39-1-1 is not 14 invoked. [MIO 6-7] Case law, however, does not support this view. See Grygorwicz 15 v. Trujillo , 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that, “if 16 a party makes a post-judgment motion directed at the final judgment pursuant to 17 Section 39-1-1, the time for filing an appeal does not begin to run until the district 184 court enters an express disposition on that motion”). Apart from case law, the rules 1 themselves provide that Section 39-1-1 post-judgment motions are no longer subject 2 to a “deemed denied” provision. See Rule 12-201(D) NMRA (stating that “[i]f a party 3 timely files a motion pursuant to Section 39-1- 1 . . . , the full time prescribed in this 4 rule for the filing of the notice of appeal shall commence to run and be computed from 5 the entry of an order expressly dispos ing of the motion”); Rule 1-054.1 (2006 6 amendment as approved by Supreme Court Order 06-8300-17, effective August 21, 7 2006, superseding the portion of Section 39-1-1 that stated that post-judgment 8 motions were automatically denied if not granted within thirty days of filing). 9 Based on the foregoing discussion, we reverse and remand with instructions that 10 the district court consider the merits of Husband’s motion to reconsider. 11 IT IS SO ORDERED. 12

_______________________________ 13 JAMES J. WECHSLER, Judge 14 WE CONCUR: 15

_______________________________ 16 CYNTHIA A. FRY, Chief Judge 175 _______________________________ 1 MICHAEL E. VIGIL, Judge 2