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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 NATALIA GUTIERREZ BARTON, 7 Petitioner-Appellee, 8 v. No. 30,247 9 RAY HUNTER BARTON, III, 10 Respondent-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Angela J. Jewell, District Judge 13 Silva, Saucedo & Gonzales, PC 14 Barbara J. Koenig 15 Christopher T. Saucedo 16 Albuquerque, NM 17 for Appellee 18 The Family Law Firm, P.C. 19 Felissa M. Garcia 20 Albuquerque, NM 21 for Appellant 22 MEMORANDUM OPINION 23 SUTIN, Judge. 242 Husband appeals from the district court’s order awarding Wife a lump-sum 1 spousal support payment of $190,000 and owners hip of the family Lexus. This Court 2 issued a calendar notice proposing to affirm, inpart, and reverse, in part. Specifically, 3 we proposed to affirm the district court’ s order to the extent it awarded Wife the 4 Lexus, and we proposed to reverse the di strict court’s lump-sum spousal support 5 award to Wife and remand for an evidentiary hearing on that issue. Wife has filed a 6 memorandum opposing this Court’s reversal of the lump-sum spousal support award. 7 Husband has filed a memorandum concurring, in part, and objecting, in part, to this 8 Court’s proposed disposition. Specifically, Husband concurs in this Court’s proposal 9 to reverse the spousal support award, but objects to our proposal to remand for an 10 evidentiary hearing on this issue. Husb and does not, however, raise any objection to 11 this Court’s proposal to affirm the district court’s award of the Lexus to Wife. We 12 therefore conclude that Husband has abandoned that issue. See Taylor v. Van 13 Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 14 (recognizing that issues raised in a docketing statement, but not contested in a 15 memorandum in opposition are abandoned). We therefore affirm the district court’s 16 order to the extent it awarded Wife the Lexus. With respect to the spousal support 17 award, we have considered the arguments of the parties and, remaining unpersuaded, 18 we reverse and remand for a new hearing. 193 In this Court’s calendar notice, we addressed the district court’s award of 1 spousal support as an implicit modification of the pretrial order. The pretrial order did 2 not identify spousal support as an issue to be addresse d at the trial. [RP 167-69] 3 From the information related to this C ourt in Husband’s docketing statement, we 4 proposed that “the district court’s rulings during the proceedings appear to indicate 5 that it had determined not to allow a modifi cation of the pretrial order. It further 6 appears that the district court subsequen tly decided, after the conclusion of the 7 evidence and submission of closing arguments, to consider the issue of spousal 8 support.” [CN 4] We therefore proposed to conclude that th e district court’s 9 modification of the pretrial order was anabuse of discretion because “(1) the 10 modification could not have b een to conform to the evidence where the district court 11 did not permit evidence [specifically on the issue of] spousal support to be presented; 12 (2) the [post-trial] modifi cation prejudiced Husband becau se he was not provided an 13 opportunity to argue against spousal support during the proceedings; and (3) the 14 modification was contrary to the purpose of pretrial orders as it confused and 15 surprised the parties regarding what issues were before the district court.” [CN 4-5 16 (citations omitted)] Wife opposes this C ourt’s proposed ruling. In her memorandum 17 in opposition, Wife notes that “[w]hen determining whether the objecting party was 18 prejudiced if the amendment [to a pretrial order] were allowed, th e court looks to such 194 factors as whether the objecting party had a fair opportunity to defend and whether he 1 could have offered any additi onal evidence.” [MIO 2 (citing Enriquez v. Cochran , 2 1998-NMCA-157, ¶ 59, 126 N.M. 196, 967 P.2d 1136)] Wife, however, contends that 3 Husband was not prejudiced and, thus, the di strict court did not abuse its discretion 4 in implicitly amending the pretrial order pos t trial. Specifically, Wife contends that 5 (1) evidence relating to the factors necessary for an award of spousal support was 6 presented indirectly with respect to issues other than spousal support, and (2) it was 7 evident that the district court was considering the issue of spousal support based on 8 her comments during opening arguments. [MIO 4-7] 9 To the extent Wife argues that the district court’s comments during opening 10 arguments should have made Husband aware th at spousal support was at issue, we are 11 unpersuaded. Wife relies on a citation to the CD log to support her argument. [RP 12 248, CD Log 1:10:32] However, the statement Wife refers to in the CD log is a 13 statement by her counsel that spousal support is still on the table and is not a statement 14 made by the district court. 15 To the extent Wife relies on the eviden ce indirectly presented on the issue of 16 spousal support to argue that Husband already had an opportunity to present evidence 17 on this issue, we are not persuaded thatthe indirect presentation of evidence in 18 support of other issues is sufficient to satisfy Husband’s right to defend against an 195 award of spousal support. Moreover, becau se the district court appeared to have 1 determined during trial that spousal s upport was not at issue, Husband was not 2 provided the opportunity to argue why the i ndirect evidence that might be considered 3 on a spousal support claim should not be re lied on by the district court in support of 4 such an award. We therefore reverse the district court’s award of spousal support for 5 the reasons stated in this opinion and in this Court’s notice of proposed disposition. 6 We now turn to Husband’s argument that this Court should not remand for an 7 evidentiary hearing on the issue of spous al support because Wife is barred from 8 litigating the issues pursuant to the doctrin es of res judicata and collateral estoppel. 9 As this Court recently noted in Alba v. Hayden , 2010-NMCA-037, ¶ 6, __ N.M. __, 10 __ P.3d __, “[r]es judicata and collateral estoppel . . . only apply to successive 11 litigation and not to issues or claims raised in the same proceeding.” Because 12 Husband is challenging this Court’s proposed remand of the case for an evidentiary 13 hearing on the issue of spousal support, we conclude that Husband’s argument that res 14 judicata and collateral estoppel preclude this Court from remanding the matter for 15 further proceedings is misplaced. Moreover, to the extent Husband is arguing that 16 Wife had the opportunity to raise the issue of spousal support and elected not to do so 17 [Husband’s Memo 8], we are unpersuaded. Wife indicated during pretrial proceedings 18 that the issue of spousal support was still on the table [RP 248, CD Log 1:10:32] and 196 attempted to elicit testimony re garding spousal support at trial. [DS 8] Moreover, the 1 district court’s rulings precluded Wife from eliciting additional testimony on this issue 2 and indicated that the district court woul d not consider the issue of spousal support. 3 To the extent Husband would have this Court bar Wife from having the opportunity 4 to fully litigate this issue, we decline to do so. 5 For the reasons stated in this opinion and in this Court’s notice of proposed 6 disposition, we affirm the district court’s order to the extent it awards Wife the Lexus, 7 and we reverse the di strict court’s order to the extent it awards Wife a lump-sum 8 spousal support award. While based on c onsiderations of cost and because both 9 parties argue against remand we hesitate ordering a remand in this case. But for the 10 reasons that follow, we remand the matter tothe district court for an evidentiary 11 hearing and for argument on the issue of spousal support. 12 Because of Wife’s failure to clearly pl ace spousal support on the table, we were 13 not particularly sympathetic with Wife’s plea that we simply affirm. Because it does 14 not appear that Husband asked the district court to reconsider its findings of fact, 15 conclusions of law, and award of spousal s upport, we are not particularly sympathetic 16 with Husband’s plea for relief. However, we were most concerned with the manner 17 in which the district court handled this issu e, and we are convinced that remand is fair 18 and required. What the parties have presented shows that the parties and the district 197 court created a posture and result that is un acceptable. It appears that the parties did 1 not or were not expected or permitted to sp ecifically and directlypresent evidence for 2 the purpose of seeking or defending against spousal support. It appears that spousal 3 support was not litigated. The parties presented no requested findings of fact, 4 conclusions of law, or closing argument on th e issue of spousal support. It appears 5 that the court did not inform the parties that it intended to address spousal support. 6 Yet the court entered findings of fact and conclusions of law apparently for the 7 purpose of supporting a spousal support award, and the court awarded a substantial 8 amount of spousal support. The findings of fact do not appear to support a conclusion 9 that spousal support should be awarded. The court does not appear to have considered 10 the required factors of NMSA 1978, Secti on 40-4-7(E) (1997) and appears to have 11 intended to by-pass those requirements through invocation of equity. We are 12 presented with no authority on which the c ourt relied for invocation of equity under 13 the circumstances, and Wife presents no pers uasive authority on appeal to support her 14 position that equity permitted the manner in which the court made the award. For 15 effective review, it is imperative that we remand and that a more fully and carefully 16 developed record, with more adequate briefing, be presented to this Court. 17 IT IS SO ORDERED. 188 __________________________________ 1 JONATHAN B. SUTIN, Judge 29 tWE CONCUR: 1

_________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

_________________________________ 4 ROBERT E. ROBLES, Judge 5