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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 OTIS B. FERGUSON, JR., 7 Petitioner-Appellant, 8

v. NO. 29,550 9 TRUDY A. FERGUSON, 10 Respondent-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 12 James Waylon Counts, District Judge 13 The Law Offices of Nancy L. Simmons, P.C. 14 Nancy L. Simmons 15 Albuquerque, NM 16 for Appellant 17 Keithly & English, P.C. 18 Shane A. English 19 Anthony, NM 20 for Appellee 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 23 In a 1980 marital settlement agreement (MSA), Otis Ferguson, Jr. (Husband) 242 agreed to pay Trudy Ferguson (Wife) 10% of his military retirement benefits when he 1 retired. [RP 16] Husband retired in 1998 and did not pay Wife as promised. [RP 53- 2 54] Approximately nine years after Husband retired, Wife found out and moved to 3 enforce the judgment. [RP 23-24] After taking evidence and finding facts, the court 4 found for Wife. [RP 52-56, 123-24] The court enforced the MSA and ordered 5 Husband to pay Wife 10% of each retirement payment he had received since retiring. 6 [RP 55, ¶ 1, 123-24] In addition, the c ourt awarded Wife prejudgment interest of 7 $22,004.45. [RP 103] Husband appeals, clai ming that there were several procedural 8 irregularities and that the court erred ininterpreting the MSA and in awarding 9 prejudgment interest. Our notice proposed to affirm. Husband filed a memorandum 10 in opposition. We are not persuaded by his arguments and affirm. 11 DISCUSSION 12 A. Denial of Continuance 13 Wife’s motion to enforce was filed July2, 2008. [RP 23] Husband did not file 14 a response until October 14, 2008, [RP 34] which was the date of the hearing on the 15 motion to enforce. [RP 31] On the dateof the hearing, Husband requested a 16 continuance. [DS 4] The court denied it and, according to Husband, refused to 17 consider his “affirmative defenses” due to “s urprise.” [DS 4] Husband argues that the 183 court should have granted hi s request for a continuance and that the court acted 1 improperly in declining to consider his affirmative defenses. [DS 5-7; MIO 1-2] 2 Husband likens the court’s action to granting a default judgment. [DS 7-8] 3 We reject these arguments. We review the court’s ruling on a motion for 4 continuance for an abuse of discretion. See Bombach v. Battershell , 105 N.M. 625, 5 626, 735 P.2d 1131, 1132 (1987). On October 14, the matter had been scheduled for 6 over three months. Husband did not file a timely response as required by Rule 1-007 7 NMRA. Instead, he waited until the day of the hearing. Even accepting Husband’s 8 assertion that he was not served witha copy of the motion until September 14, 9 Husband still had one month to respond. [D S 6] If Husband wanted a continuance, 10 we see no reason why he could not have file d a motion before the day of the hearing. 11 Under the circumstances, we c onclude that the court coul d proceed with its docket as 12 scheduled, and did not abuse its discretion. Cf. Avlin, Inc. v. Manis , 1998-NMCA13 011, ¶ 12, 124 N.M. 544, 953 P.2d 309 (filed 1997) (affirming monetary sanction 14 against an attorney who filed a late respons e the afternoon before the hearing that had 15 been scheduled for one month, reasoning th at the court had inherent authority to 16 regulate its docket and promote judicial efficiency). 17 We also disagree with Husband’s premis e that he was not allowed to present 184 his “affirmative defenses.” Our calendar notice observed that the problem caused by 1 Husband’s lateness was discu ssed, but the tape log indicates that the court did not 2 make a ruling. We noted that, instead, th e court appears to have taken the matter 3 under advisement. [RP 44] We further observed that the record did not reflect that the 4 court thereafter made any ruling that it w ould not consider Husband’s arguments, that 5 the record did not appear to indicate any restriction on Husband’s ability to present 6 his evidence, and that it did not contain any indication that Husband’s counsel was 7 precluded from advancing any argument. [RP 51] Our notice also observed that it 8 appeared that the court did consider the de fenses raised in Husband’s response, and 9 a review of the Minute Order indicated thatthe court did consider at least one of 10 Husband’s defenses. [RP 55, ¶ 2(b) (addre ssing Husband’s defense [RP 35, ¶ 7] claim 11 that military retirement benefits cannot be paid directly to Wife)]. 12 In his memorandum, Husband does not c ontest our assumptions. Instead, he 13 states that he is relying on the argument in his docketing statement. [MIO 1] “Our 14 courts have repeatedly held that, in summary calendar cases, the burden is on the party 15 opposing the proposed disposition to clearly point out errors in fact or law.” Hennessy 16 v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. We conclude that 17 Husband has not done so. To the ex tent he argues that the sanction was 185 disproportionate to what he contends was a short delay and to the fact that Wife 1 “waited over a decade to bring her claims,” [MIO 2] we are not persuaded. The fact 2 remains that Husband waite d until the day of the hearing to file his response. 3 Husband’s argument that Wife was dilatory i gnores the fact that he hid the fact that 4 he was receiving benefits for a long period of time without notifying her. 5 Finally, even if we were to accept Hu sband’s premise that the court limited 6 Husband’s ability to present material that had been presented on the day of the 7 hearing, it would be an appropriate sanction for Husband’s unexplained and 8 unjustified attempt to unfairly surpriseWife on the day of the hearing. Cf. Santistevan 9 v. Centinel Bank of Taos , 96 N.M. 730, 732-33, 634 P.2d 1282, 1284-85 (1981) 10 (noting that a party may waive an affirmative defense where it waits until the eleventh 11 hour to raise it). 12 For all of these reasons, we hold that no error or abuse of discretion has been 13 demonstrated. 14 B. Interpretation of the MSA 15 Husband contends that the court erred in its interpretation of the marital 16 settlement agreement. He argues that under the language of the agreement, Wife was 17 not entitled to 10% of the payments when they were actually made, but rather that she 186 was entitled to 10% of the payments to wh ich Wife would have been entitled in 1980. 1 Under Husband’s interpretation, this amount would be frozen at $168.18 per month. 2 [DS 2; MIO 2-8] 3 Marital settlement agreements are contr acts and are subject to contract law. See 4 Herrera v. Herrera , 1999-NMCA-034, ¶ 9, 126 N.M. 705, 974 P.2d 675. Contracts 5 are enforced as written unless they are ambiguous. Cf. Marshall v. Providence Wash. 6 Ins. Co. , 1997-NMCA-122, ¶ 22, 124 N.M. 381, 951 P.2d 76. “A contract is deemed 7 ambiguous only if it is reasonably and fairlysusceptible of different constructions. 8 Whether ambiguity exists is a question of law; therefore, this Court reviews the 9 district court’s decision de novo.” Envtl. Control, Inc. v. City of Santa Fe , 2002- 10 NMCA-003, ¶ 14, 131 N.M. 450, 38 P. 3d 891 (filed 2001) (citation omitted). 11 “[W]e view the contract as a harmonious whole, give meaning to every provision, and 12 accord each part of the contract its signi ficance in light of other provisions.” Pub. 13 Serv. Co. of N.M. v. Diamond D Constr. Co. , 2001-NMCA-082, ¶ 19, 131 N.M. 100, 14 33 P.3d 651. 15 The settlement agreement [RP 16] provided: 16 [Husband] owns a non-vested M ilitary Service Retirement Annuity 17 arising from his employment during the marriage, which he 18 acknowledges to be a community asset. [Husband] now declares himself 19 to be a trustee, for [Wife’s] benefit, of ten per cent (10%) of his present 207 vested or contingent rights in saidMilitary Retirement Annuity and any 1 substitute or successor plans arisi ng from his militaryemployment. As 2 Trustee, [Husband] agrees that, when he receives any such benefit, he 3 will promptly pay to [W ife] ten per cent (10%) of each payment received 4 from the plan or plans, each month. (Emphasis added.) 5 We disagree with Husband’s argument that Wife was entitled to 10% of the 6 payment to which she woul d have been entitled in 1980, $168.18 per month. The 7 language we have emphasizedunambiguously recognizes that the payments, if any, 8 will be made in the future. The language, “when [Husband] receives any such 9 benefit,” he will pay 10% of “each payment received” clearly reflects the 10 understanding that the payments will be made in the future, and at that future time, 11 Wife will be entitled to 10% of each payment as it is made. 12 Husband argues that the reference to “p resent contingent rights” equates with 13 an interpretation that the amount of the payments was locked in as of 1980. [MIO 2-8] 14 We disagree. The reference to “contingent” benefits di d nothing more than recognize 15 that there were uncertainties about when th e future payments would begin, how much 16 they might be, or whether there would be any retirement benefits at all. Husband 17 admits that, when the MSA was made in1980, “New Mexico precedent at the time 18 was highly uncertain as to whether [Wife] could claim anyinterest in [Husband’s] 19 retirement benefits.” [MIO 8] Given this c ontext, the reference to “present vested or 208 contingent rights” only recognizes that, although the retirement benefits were not 1 vested and payable in 1980, during the marriage Husband had accrued time toward a 2 military pension that might ripen in the future, and that whatever interest Husband had 3 in his benefits in 1980, some portion of th at may well have been community property. 4 5 In our view, the language on which Husband relies describes the nature of the 6 benefits. By contrast, the language wehave emphasized focuses on the time the 7 benefits are received and plainly provides th at “when he receives any such benefit, he 8 will promptly pay to [Wife] ten per cent (10%) of each payment received from the 9 plan or plans, each month.” We believe this language clearly captures the idea that 10 the correct valuation is determined “whe n” each payment is received. 11 Husband also argues that the court did not have the power to “reform” the 12 agreement. [MIO 8] However, the court did not reform th e agreement. Rather, as we 13 have discussed, the court enforced the agreement as it was written. 14 C. Laches 15 Husband argues that Wife’s claims prior to July 1, 2004 are barred by laches 16 or the applicable statute of limitations. [DS 17] In his memorandum, he no longer 17 seriously pursues this argument and instead c ontends that “she was allowed . . . to sit 189 on her rights.” [MIO 10] We reject this argument. The court considered the 1 testimony of the parties and found that Husb and did not tell Wife he had retired and 2 had begun to draw benefits. Accordingly, Husband cannot fail to inform Wife and 3 now claim that Wife’s recovery is barred e ither by laches or the statute of limitations. 4 See Garcia v. Garcia , 111 N.M. 581, 588, 808 P.2d 31, 38 ( 1991) (stating that in order 5 to rely on laches, the party must show th at the other party engaged in delay despite 6 knowledge of the facts and an opportunity to institute a suit); Beneficial Fin. Co. of 7 N.M. v. Alarcon , 112 N.M. 420, 425, 816 P.2d 489, 494 (1991) (stating that “where 8 a party against whom the causeof action accrues prevents the one entitled to bring the 9 cause from obtaining knowledge thereof by fraudulent concealment,” the statute of 10 limitations does not begin to run until the right of action is discovered (internal 11 quotation marks and citation omitted)). 12 D. Prejudgment Interest 13 Husband argues that the court erred in awarding prejudgment interest. [DS 17; 14 MIO 10-12] He argues that the court could not do so because the settlement 15 agreement did not provide for it, and there is no statutory authority for the award. [DS 16 17; MIO 11-12] 17 A court in a divorce action may award interest as in other cases, and we review 1810 the court’s decision for an abuse of discretion. See Jurado v. Jurado , 119 N.M. 522, 1 531, 892 P.2d 969, 978 (Ct. App. 1995). 2 We disagree with Husband’s argument. A marital settlement agreement is a 3

contract. See Herrera , 1999-NMCA-034, ¶ 9. Husband’s breach of fiduciary duty 4 and his breach of the MSA deprived Wife of the use of payments , to which she was 5 entitled, over a significant period of time. Accordingly, the court could award 6 prejudgment interest as a part of damages. See NMSA 1978, § 56-8-3 (1983) (stating 7 that prejudgment interest may be awarded for breach of contract); United Nuclear 8 Corp. v. Allendale Mut. Ins. Co. , 103 N.M. 480, 488, 709 P.2d 649, 657 (1985) 9 (stating that “[c]ontract damage awards ag ainst one who fails to perform should fully 10 compensate the injured party for all dama ges naturally flowing from such breach” and 11 that “[p]rejudgment interest is meant to compensate a plaintiff for injury resulting 12 from deprivation of the promised perform ance and for loss of the use and earning 13 power of [the] plaintiff’s own funds”). Here, Husband wrongfu lly retained money 14 that was due to Wife, and th e award of prejudgment interest compensated Wife for her 15 loss of the use of the money. As such , it was properly awarded as an element of 16 damages to ensure that Wife was made whole. We conclude that no abuse of 17 discretion has been shown. See Jurado , 119 N.M. at 531, 892 P.2d at 978. 1811 Finally, we observe that some of the issues raised in Husband’s docketing 1 statement and addressed by our notice havenot been discussed in his memorandum 2 in opposition. We need not address those issues further. See State v. Johnson , 107 3 N.M. 356, 358, 758 P.2d 306, 308 (C t. App. 1988) (stating that when a case is decided 4 on the summary calendar, an issue is deemed abandoned when a party fails to respond 5 to the proposed disposition of the issue). 6 For all of these reasons, we affirm. 7 IT IS SO ORDERED. 8

_______________________________ 9 JAMES J. WECHSLER, Judge 10 WE CONCUR: 11

__________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13

__________________________________ 14 LINDA M. VANZI, Judge 15