1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 NATALIA GUTIERREZ BARTON,

8 Petitioner-Appellee,

9 v. No. 30,247

10 RAY HUNTER BARTON, III, 

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

13 Angela J. Jewell, District Judge

14 Silva, Saucedo & Gonzales, PC

15 Barbara J. Koenig

16 Christopher T. Saucedo

17 Albuquerque, NM

18 for Appellee

19 The Family Law Firm, P.C.

20 Felissa M. Garcia

21 Albuquerque, NM

22 for Appellant

23 MEMORANDUM OPINION

24 SUTIN, Judge.
2

1 Husband appeals from the district court’s order awarding Wife a lump-sum

2 spousal support payment of $190,000 and ownership of the family Lexus. This Court

3 issued a calendar notice proposing to affirm, in part, and reverse, in part. Specifically,

4 we proposed to affirm the district court’s order to the extent it awarded Wife the

5 Lexus, and we proposed to reverse the district court’s lump-sum spousal support

6 award to Wife and remand for an evidentiary hearing on that issue. Wife has filed a

7 memorandum opposing this Court’s reversal of the lump-sum spousal support award.

8 Husband has filed a memorandum concurring, in part, and objecting, in part, to this

9 Court’s proposed disposition. Specifically, Husband concurs in this Court’s proposal

10 to reverse the spousal support award, but objects to our proposal to remand for an

11 evidentiary hearing on this issue. Husband does not, however, raise any objection to

12 this Court’s proposal to affirm the district court’s award of the Lexus to Wife. We

13 therefore conclude that Husband has abandoned that issue. See Taylor v. Van

14 Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41

15 (recognizing that issues raised in a docketing statement, but not contested in a

16 memorandum in opposition are abandoned). We therefore affirm the district court’s

17 order to the extent it awarded Wife the Lexus. With respect to the spousal support

18 award, we have considered the arguments of the parties and, remaining unpersuaded,

19 we reverse and remand for a new hearing.
3

1 In this Court’s calendar notice, we addressed the district court’s award of

2 spousal support as an implicit modification of the pretrial order. The pretrial order did

3 not identify spousal support as an issue to be addressed at the trial. [RP 167-69]

4 From the information related to this Court in Husband’s docketing statement, we

5 proposed that “the district court’s rulings during the proceedings appear to indicate

6 that it had determined not to allow a modification of the pretrial order. It further

7 appears that the district court subsequently decided, after the conclusion of the

8 evidence and submission of closing arguments, to consider the issue of spousal

9 support.” [CN 4] We therefore proposed to conclude that the district court’s

10 modification of the pretrial order was an abuse of discretion because “(1) the

11 modification could not have been to conform to the evidence where the district court

12 did not permit evidence [specifically on the issue of] spousal support to be presented;

13 (2) the [post-trial] modification prejudiced Husband because he was not provided an

14 opportunity to argue against spousal support during the proceedings; and (3) the

15 modification was contrary to the purpose of pretrial orders as it confused and

16 surprised the parties regarding what issues were before the district court.” [CN 4-5

17 (citations omitted)] Wife opposes this Court’s proposed ruling. In her memorandum

18 in opposition, Wife notes that “[w]hen determining whether the objecting party was

19 prejudiced if the amendment [to a pretrial order] were allowed, the court looks to such
4

1 factors as whether the objecting party had a fair opportunity to defend and whether he

2 could have offered any additional evidence.” [MIO 2 (citing Enriquez v. Cochran,

3 1998-NMCA-157, ¶ 59, 126 N.M. 196, 967 P.2d 1136)] Wife, however, contends that

4 Husband was not prejudiced and, thus, the district court did not abuse its discretion

5 in implicitly amending the pretrial order post trial. Specifically, Wife contends that

6 (1) evidence relating to the factors necessary for an award of spousal support was

7 presented indirectly with respect to issues other than spousal support, and (2) it was

8 evident that the district court was considering the issue of spousal support based on

9 her comments during opening arguments. [MIO 4-7] 

10 To the extent Wife argues that the district court’s comments during opening

11 arguments should have made Husband aware that spousal support was at issue, we are

12 unpersuaded. Wife relies on a citation to the CD log to support her argument. [RP

13 248, CD Log 1:10:32] However, the statement Wife refers to in the CD log is a

14 statement by her counsel that spousal support is still on the table and is not a statement

15 made by the district court.

16 To the extent Wife relies on the evidence indirectly presented on the issue of

17 spousal support to argue that Husband already had an opportunity to present evidence

18 on this issue, we are not persuaded that the indirect presentation of evidence in

19 support of other issues is sufficient to satisfy Husband’s right to defend against an
5

1 award of spousal support. Moreover, because the district court appeared to have

2 determined during trial that spousal support was not at issue, Husband was not

3 provided the opportunity to argue why the indirect evidence that might be considered

4 on a spousal support claim should not be relied on by the district court in support of

5 such an award. We therefore reverse the district court’s award of spousal support for

6 the reasons stated in this opinion and in this Court’s notice of proposed disposition.

7 We now turn to Husband’s argument that this Court should not remand for an

8 evidentiary hearing on the issue of spousal support because Wife is barred from

9 litigating the issues pursuant to the doctrines of res judicata and collateral estoppel.

10 As this Court recently noted in Alba v. Hayden, 2010-NMCA-037, ¶ 6, __ N.M. __,

11 __ P.3d __, “[r]es judicata and collateral estoppel . . . only apply to successive

12 litigation and not to issues or claims raised in the same proceeding.” Because

13 Husband is challenging this Court’s proposed remand of the case for an evidentiary

14 hearing on the issue of spousal support, we conclude that Husband’s argument that res

15 judicata and collateral estoppel preclude this Court from remanding the matter for

16 further proceedings is misplaced. Moreover, to the extent Husband is arguing that

17 Wife had the opportunity to raise the issue of spousal support and elected not to do so

18 [Husband’s Memo 8], we are unpersuaded. Wife indicated during pretrial proceedings

19 that the issue of spousal support was still on the table [RP 248, CD Log 1:10:32] and
6

1 attempted to elicit testimony regarding spousal support at trial. [DS 8] Moreover, the

2 district court’s rulings precluded Wife from eliciting additional testimony on this issue

3 and indicated that the district court would not consider the issue of spousal support.

4 To the extent Husband would have this Court bar Wife from having the opportunity

5 to fully litigate this issue, we decline to do so.

6 For the reasons stated in this opinion and in this Court’s notice of proposed

7 disposition, we affirm the district court’s order to the extent it awards Wife the Lexus,

8 and we reverse the district court’s order to the extent it awards Wife a lump-sum

9 spousal support award. While based on considerations of cost and because both

10 parties argue against remand we hesitate ordering a remand in this case. But for the

11 reasons that follow, we remand the matter to the district court for an evidentiary

12 hearing and for argument on the issue of spousal support.

13 Because of Wife’s failure to clearly place spousal support on the table, we were

14 not particularly sympathetic with Wife’s plea that we simply affirm. Because it does

15 not appear that Husband asked the district court to reconsider its findings of fact,

16 conclusions of law, and award of spousal support, we are not particularly sympathetic

17 with Husband’s plea for relief. However, we were most concerned with the manner

18 in which the district court handled this issue, and we are convinced that remand is fair

19 and required. What the parties have presented shows that the parties and the district
7

1 court created a posture and result that is unacceptable. It appears that the parties did

2 not or were not expected or permitted to specifically and directly present evidence for

3 the purpose of seeking or defending against spousal support. It appears that spousal

4 support was not litigated. The parties presented no requested findings of fact,

5 conclusions of law, or closing argument on the issue of spousal support. It appears

6 that the court did not inform the parties that it intended to address spousal support.

7 Yet the court entered findings of fact and conclusions of law apparently for the

8 purpose of supporting a spousal support award, and the court awarded a substantial

9 amount of spousal support. The findings of fact do not appear to support a conclusion

10 that spousal support should be awarded. The court does not appear to have considered

11 the required factors of NMSA 1978, Section 40-4-7(E) (1997) and appears to have

12 intended to by-pass those requirements through invocation of equity. We are

13 presented with no authority on which the court relied for invocation of equity under

14 the circumstances, and Wife presents no persuasive authority on appeal to support her

15 position that equity permitted the manner in which the court made the award. For

16 effective review, it is imperative that we remand and that a more fully and carefully

17 developed record, with more adequate briefing, be presented to this Court.

18 IT IS SO ORDERED.
8

1 __________________________________

2 JONATHAN B. SUTIN, Judge
9

1 tWE CONCUR:

2 _________________________________

3 MICHAEL D. BUSTAMANTE, Judge

4 _________________________________

5 ROBERT E. ROBLES, Judge