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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

8 Petitioner-Appellee,

9 v. NO. 29,947

10 KELLY LYNN ARMIJO,

11 Respondent-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY

13 Edmund H. Kase, III, Judge

14 Filosa & Filosa

15 Mark A. Filosa

16 Truth or Consequences, NM

17 for Appellee

18 Grace B. Duran

19 Las Cruces, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge.

23 Wife appeals from an order of the district court denying her motion to set aside

24 the marital settlement agreement she made with Husband on grounds that the district
2

1 court did not comply with Rule 1-053.2 NMRA. Rule 1-053.2 and Buffington v.

2 McGorty, 2004-NMCA-092, ¶¶ 23-24, 136 N.M. 226, 96 P.3d 787 require the district

3 court to independently review and decide a party’s objections to the recommendations

4 of a domestic relations hearing officer. The district court did so. We therefore affirm.

5 PROCEDURAL BACKGROUND

6 Representing themselves, Husband and Wife jointly filed a petition for

7 dissolution of marriage. At the same time, they also filed a verified marital settlement

8 agreement, which divided their community property and debts. The district court

9 approved the marital settlement agreement and incorporated it into the final decree of

10 dissolution of marriage.

11 Wife then obtained an attorney who filed a motion for relief from judgment

12 under Rule 1-060(B) NMRA and a motion for division of property pursuant to NMSA

13 1978, Section 40-4-20 (1993). Wife sought to set aside the marital settlement

14 agreement on grounds of duress, coercion and undue influence, and to reopen the

15 matter for an equitable division of the community property and debts under Section

16 40-4-20. Husband also obtained counsel and responded to Wife’s motion by denying

17 the material allegations of Wife’s motion and by filing a motion to dismiss on grounds

18 that Wife was required to file a separate, independent action under Section 40-4-20.

19 Husband followed this with a motion for summary judgment based on the same
3

1 grounds, supported by a memorandum of law. Wife’s response to Husband’s motion

2 to dismiss and motion for summary judgment was that a new case number could be

3 administratively assigned to her motion without dismissal.

4 The district court entered an order assigning the case to a domestic relations

5 hearing officer pursuant to Rule 1-053.2. The hearing officer first considered

6 Husband’s motion for summary judgment and determined that Wife was required to

7 file a separate, independent action insofar as she was seeking relief under Section 40-

8 4-20. The hearing officer therefore entered a proposed order, which the district court

9 approved, dismissing Wife’s Section 40-4-20 motion without prejudice. Wife does

10 not challenge this order on appeal. 

11 The hearing officer then conducted an evidentiary hearing, denominated a trial

12 on the merits, on Wife’s Rule 1-060(B) motion. Husband and Wife each testified in

13 support of their respective positions about the circumstances surrounding formation

14 of the marital settlement agreement and its validity. In addition, Husband and Wife

15 submitted written briefs in support of their respective positions. After hearing the

16 evidence and considering the written briefs, the hearing officer recommended an order

17 which granted Wife’s Rule 1-060(B) motion. The proposed order contains no

18 findings or grounds for granting the motion and simply recites, “The [Wife’s]

19 requested relief from judgment under Rule 1-060[(B)] NMRA is well taken and is
4

1 granted.” The district court approved the proposed order, and it was filed as an order

2 of the district court on August 8, 2008. 

3 On August 13, 2008, Husband filed a “notice of appeal” in the district court

4 “pursuant to Rule 1-053.1.” The “notice of appeal” asserts that the decision of the

5 hearing officer is not supported by substantial evidence and that Husband cannot

6 specifically address the objections to the findings “since there were no findings”

7 setting forth the basis of the hearing officer’s recommendation. The district court held

8 a status conference concerning the “notice of appeal,” which was treated by the court

9 and the parties as an objection to the hearing officer’s recommendation. At the status

10 conference, the parties agreed that a trial de novo was not required and that in order

11 to resolve Husband’s objection and make its own determination, the district court

12 should only review the evidentiary record made before the hearing officer. Wife’s

13 counsel specifically stated that the matter had been fully litigated and that no

14 additional evidence was needed for the district court to independently decide the Rule

15 1-060(B) motion. It was therefore agreed that a transcript of the evidentiary hearing

16 held before the hearing officer would be prepared and that the parties would file

17 requested findings of fact and conclusions of law for review by the district court. A

18 formal order was filed reflecting this agreement and understanding.
5

1 The district court reviewed the transcript of the evidentiary hearing held before

2 the hearing officer, considered the proposed findings of fact filed by the respective

3 parties, and filed its decision. Based on its review of the transcript, the district court

4 entered its own independent findings of fact and conclusions of law and concluded

5 that Wife’s motion for relief under Rule 1-060 was not supported by a preponderance

6 of the evidence. The district court further concluded that the relief requested by Wife

7 pursuant to Section 40-4-20 was precluded by the summary judgment. Wife’s

8 motions were therefore denied.

9 Wife filed a motion to reconsider. Wife asserted that Husband’s “notice of

10 appeal” was a misnomer because he should have filed an objection to the hearing

11 officer’s recommendation pursuant to Rule 1-053.2. In addition, Wife’s counsel for

12 the first time asserted her belief that the transcript was going to be reviewed by the

13 hearing officer to enter findings of fact and conclusions of law since he heard the

14 testimony first hand. Wife asserted that Rule 1-053.2 was being incorrectly applied

15 since she was being denied a hearing before the district court and denied of an

16 opportunity to present evidence to the district court. Husband’s response was that at

17 the status conference before the district court, the parties had agreed that the “notice

18 of appeal” was in fact an objection and that Wife was not prejudiced by the title of the

19 pleading; that Wife’s counsel had specifically agreed that the district court should
6

1 review the transcript of the hearing held before the hearing officer and make its own

2 decision; that Wife had been given an opportunity to present additional evidence to

3 the district court, which she declined; and that Wife had failed to demonstrate any

4 prejudice. Wife’s reply asserted that because the hearing officer had not filed findings

5 of fact and conclusions of law, when the district court ordered the parties to file

6 requested findings of fact and conclusions of law, the case should have been

7 “recommitted” to the hearing officer, who had heard the evidence, observed the

8 witnesses, and was in the best position to evaluate their credibility. The district court

9 denied Wife’s motion to reconsider, and Wife appeals. 

10 DISCUSSION

11 Wife asks that we remand the case to the district court for a trial de novo based

12 on several contentions. First, Wife notes that the “notice of appeal” incorrectly cited

13 to Rule 1-053.1 NMRA, which deals with special commissioners for domestic

14 violence, instead of Rule 1-053.2, which is the applicable rule. Second, Wife asserts

15 that the “notice of appeal” should never have been accepted as an objection to the

16 hearing officer’s recommendation because the “notice of appeal” did not address a

17 specific objection, as required by Rule 1-053.2(G), but made only a vague claim that

18 the recommended decision was not supported by the evidence. Third, Wife contends

19 that because the hearing officer heard the testimony and observed the demeanor of the
7

1 witnesses, the hearing officer was charged with the responsibility of making findings

2 of fact and conclusions of law. Instead, Wife argues, the district court made findings

3 of fact and conclusions of law without conducting an appropriate hearing, and without

4 explaining why he rejected the hearing officer’s recommendation. Finally, Wife

5 asserts that because the district court did not engage in a “meaningful review” before

6 entering its findings of fact and conclusions of law, her rights to due process were

7 violated.

8 We reject Wife’s assertions. As to the inaccurate citation to Rule 1-053.1, Wife

9 makes no argument that she was prejudiced. Further, we note that the provisions of

10 the two rules are identical in prescribing how a party objects to the recommendations

11 of a domestic relations hearing officer. Rule 1-053.1(G); Rule 1-053.2(G). As to

12 Wife’s remaining claims, Wife agreed to the entire procedure followed in the district

13 court. Specifically, Wife agreed to treat Husband’s “notice of appeal” as an objection

14 to the hearing officer’s report under Rule 1-053.2(G); Wife agreed that a trial de novo

15 in the district court was not necessary; Wife agreed that a review of the transcript of

16 the evidentiary hearing held before the hearing officer was sufficient for the district

17 court to resolve Husband’s objections and make its own determination of Wife’s Rule

18 1-060(B) motion; and on this basis, Wife filed requested findings of fact and

19 conclusions of law “in support of the decision” of the hearing officer. In conformance
8

1 with the agreement of the parties, the district court reviewed the transcript of the

2 evidentiary hearing, reviewed the requested findings of fact of the parties, specifically

3 noting those that were rejected, and based on this review made its own findings of

4 fact, conclusions of law, and decision. Only after the district court rendered its

5 decision against Wife did she object to the procedure that was followed with her

6 agreement. She also asserted for the first time that she had thought the hearing officer,

7 rather than the district court, was going to enter findings of fact and conclusions of

8 law. Under these circumstances, we do not address Wife’s arguments. See Cnty. of

9 Los Alamos v. Martinez, 2011-NMCA-027, ¶ 15, ___N.M.___, ___P.3d___ (declining

10 to address appellant’s contention to the extent it was based on an argument that

11 paramedic training contracts were not mandatory subjects of collective bargaining

12 where the appellant did not oppose a motion for summary judgment on this basis, and

13 in fact conceded that such contracts were mandatory subjects of bargaining) (citing

14 Spectron Dev. Lab. v. Am. Hollow Boring Co., 1997-NMCA-025, ¶ 32, 123 N.M. 170,

15 936 P.2d 852 (“We review the case litigated below, not the case that is fleshed out for

16 the first time on appeal.”) (alteration omitted) (internal quotation marks and citation

17 omitted); So. Union Gas Co. v. Cantrell, 57 N.M. 612, 615-16, 261 P.2d 645, 647

18 (1953) (“Courts look with favor upon stipulations designed to simplify, shorten, or

19 settle litigation and save time and costs to the parties, and such stipulations will be
9

1 encouraged by the courts, and enforced by them, unless good cause is shown to the

2 contrary.”).

3 Wife next argues that the district court erred in denying her motion for

4 reconsideration. “We review the denial of a motion to reconsider for abuse of

5 discretion.” Wilde v. Westland Dev. Co., 2010-NMCA-085, ¶ 35, 148 N.M. 627, 241

6 P.3d 628. 

7 We conclude no abuse of discretion was committed. In Buffington, we held that

8 a district court has an obligation to independently consider a hearing officer’s

9 recommendations and make a record which adequately sets forth the basis for its

10 decision. 2004-NMCA-092, ¶ 31. Consistent with Buffington, Subsection (H) of Rule

11 1-053.2 provides:

12 H. District court proceedings. After receipt of the

13 recommendations of the domestic relations hearing officer:

14 (1) Review of recommendations.

15 (a) The court shall review the recommendations

16 of the domestic relations hearing officer and determine whether to adopt

17 the recommendations.

18 (b) If a party files timely, specific objections to the

19 recommendations, the court shall conduct a hearing appropriate and

20 sufficient to resolve the objections. The hearing shall consist of a review

21 of the record unless the court determines that additional evidence will aid

22 in the resolution of the objections.

23 (c) The court shall make an independent

24 determination of the objections.

25 (d) The court may adopt the recommendations, 
10

1 modify them, reject them in whole or in part, receive further evidence,

2 or may recommit them to the domestic relations hearing officer with

3 instructions.

4 (2) Findings and conclusions; entry of final order. After

5 the hearing, the court shall enter a final order. When required by Rule

6 1-052 NMRA, the court also shall enter findings and conclusions.

7 The district court was required to review the hearing officer’s recommendation and

8 independently determine whether to adopt the recommendation. It was required to do

9 so regardless of whether there was an objection to the recommendation. In this case,

10 the parties also agreed to treat Husband’s “notice of appeal” as an objection to the

11 hearing officer’s recommendation, and the parties further agreed that the district court

12 would decide Husband’s objection after reviewing the transcript of the evidentiary

13 hearing held before the hearing officer and considering the parties’ requested findings

14 of fact and conclusions of law. This procedure for deciding Husband’s objection is

15 expressly permitted by Rule 1-053.2. The procedure agreed upon was followed, and

16 the district court made its independent decision to deny Wife’s Rule 1-060(B) motion,

17 supported by its own findings of fact and conclusions of law. A complete rejection

18 of the hearing officer’s recommendation after reviewing the record is also expressly

19 permitted by Rule 1-053.2. Thus, the district court actions conformed with the

20 requirements of Rule 1-053.2, and it did not abuse its discretion in denying Wife’s

21 motion to reconsider. 

22 Wife’s argument in the alternative is that the case should be remanded to the

23 district court to state its reasons for setting aside the hearing officer’s

24 recommendation. The basis for this argument is Wife’s contention that the district
11

1 court erred in not following the standard of review set forth in NMSA 1978, Section

2 40-4B-8(D) (1993) (stating the district court will set aside the decision of a child

3 support hearing officer “only if the decision is found to be: (1) arbitrary, capricious

4 or an abuse of discretion; (2) not supported by substantial evidence in the record as

5 a whole; or (3) otherwise not in accordance with law”). We reject this argument.

6 Subsection (I) of Rule 1-053.2 expressly states, “The court and child support hearing

7 officers acting pursuant to the Child Support Hearing Officer Act (Sections 40-4B-1

8 through 40-4B-10 NMSA 1978) and domestic relations hearing officers acting

9 pursuant to Subparagraph (3) of Paragraph C of Rule 1-053.2 NMRA shall comply

10 with this rule notwithstanding any contrary provision of the Child Support Hearing

11 Officer Act.” The district court was required to act in conformity with Rule 1-053.2,

12 and it did. 

13 Wife’s final argument is that the final decree of dissolution of marriage should

14 be set aside under Rule 1-060(B). In making this argument, Wife argues the facts in

15 the light most favorable to this result. However, it is not our function to re-weigh the

16 facts on appeal. “The reviewing court may not re[-]weigh the evidence or substitute

17 its judgment for that of the trier of fact. The issue is not whether there is evidence to

18 support an alternative result but, rather, whether the trial court’s result is supported by

19 substantial evidence.” Nosker v. Trinity Land Co., 107 N.M. 333, 338, 757 P.2d 803,

20 808 (Ct. App. 1988) (citations omitted). Rather, our review is limited to determining
12

1 whether the district court abused its discretion in denying Wife’s Rule 1-060(B)

2 motion to set aside the final decree of dissolution of marriage. See Click v. Litho

3 Supply Co., 95 N.M. 419, 420, 622 P.2d 1039, 1040 (1981) (“Relief under Rule [1-

4 0]60 is discretionary with the trial judge and will be reviewed only for an abuse of that

5 discretion.”). Wife does not contend that the district court findings of fact are not

6 supported by substantial evidence. In light of those findings, which we do not repeat

7 here, we are not convinced the district court abused its discretion in denying Wife’s

8 Rule 1-060(B) motion.

9 CONCLUSION

10 The order of the district court is affirmed.

11 IT IS SO ORDERED.

12 ______________________________

13 MICHAEL E. VIGIL, Judge

14 WE CONCUR:

15 _________________________________

16 CYNTHIA A. FRY, Judge

17 _________________________________

18 TIMOTHY L. GARCIA, Judge