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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 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 OTIS B. FERGUSON, JR.,

8 Petitioner-Appellant,

9 v. NO. 29,550 

10 TRUDY A. FERGUSON,

11 Respondent-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

13 James Waylon Counts, District Judge

14 The Law Offices of Nancy L. Simmons, P.C.

15 Nancy L. Simmons

16 Albuquerque, NM

17 for Appellant

18 Keithly & English, P.C.

19 Shane A. English

20 Anthony, NM

21 for Appellee

22 MEMORANDUM OPINION

23 WECHSLER, Judge.

24 In a 1980 marital settlement agreement (MSA), Otis Ferguson, Jr. (Husband)
2

1 agreed to pay Trudy Ferguson (Wife) 10% of his military retirement benefits when he

2 retired. [RP 16] Husband retired in 1998 and did not pay Wife as promised. [RP 53-

3 54] Approximately nine years after Husband retired, Wife found out and moved to

4 enforce the judgment. [RP 23-24] After taking evidence and finding facts, the court

5 found for Wife. [RP 52-56, 123-24] The court enforced the MSA and ordered

6 Husband to pay Wife 10% of each retirement payment he had received since retiring.

7 [RP 55, ¶ 1, 123-24] In addition, the court awarded Wife prejudgment interest of

8 $22,004.45. [RP 103] Husband appeals, claiming that there were several procedural

9 irregularities and that the court erred in interpreting the MSA and in awarding

10 prejudgment interest. Our notice proposed to affirm. Husband filed a memorandum

11 in opposition. We are not persuaded by his arguments and affirm. 

12 DISCUSSION

13 A. Denial of Continuance

14 Wife’s motion to enforce was filed July 2, 2008. [RP 23] Husband did not file

15 a response until October 14, 2008, [RP 34] which was the date of the hearing on the

16 motion to enforce. [RP 31] On the date of the hearing, Husband requested a

17 continuance. [DS 4] The court denied it and, according to Husband, refused to

18 consider his “affirmative defenses” due to “surprise.” [DS 4] Husband argues that the
3

1 court should have granted his request for a continuance and that the court acted

2 improperly in declining to consider his affirmative defenses. [DS 5-7; MIO 1-2]

3 Husband likens the court’s action to granting a default judgment. [DS 7-8]

4 We reject these arguments. We review the court’s ruling on a motion for

5 continuance for an abuse of discretion. See Bombach v. Battershell, 105 N.M. 625,

6 626, 735 P.2d 1131, 1132 (1987). On October 14, the matter had been scheduled for

7 over three months. Husband did not file a timely response as required by Rule 1-007

8 NMRA. Instead, he waited until the day of the hearing. Even accepting Husband’s

9 assertion that he was not served with a copy of the motion until September 14,

10 Husband still had one month to respond. [DS 6] If Husband wanted a continuance,

11 we see no reason why he could not have filed a motion before the day of the hearing.

12 Under the circumstances, we conclude that the court could proceed with its docket as

13 scheduled, and did not abuse its discretion. Cf. Avlin, Inc. v. Manis, 1998-NMCA14 011, ¶ 12, 124 N.M. 544, 953 P.2d 309 (filed 1997) (affirming monetary sanction

15 against an attorney who filed a late response the afternoon before the hearing that had

16 been scheduled for one month, reasoning that the court had inherent authority to

17 regulate its docket and promote judicial efficiency). 

18 We also disagree with Husband’s premise that he was not allowed to present
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1 his “affirmative defenses.” Our calendar notice observed that the problem caused by

2 Husband’s lateness was discussed, but the tape log indicates that the court did not

3 make a ruling. We noted that, instead, the court appears to have taken the matter

4 under advisement. [RP 44] We further observed that the record did not reflect that the

5 court thereafter made any ruling that it would not consider Husband’s arguments, that

6 the record did not appear to indicate any restriction on Husband’s ability to present

7 his evidence, and that it did not contain any indication that Husband’s counsel was

8 precluded from advancing any argument. [RP 51] Our notice also observed that it

9 appeared that the court did consider the defenses raised in Husband’s response, and

10 a review of the Minute Order indicated that the court did consider at least one of

11 Husband’s defenses. [RP 55, ¶ 2(b) (addressing Husband’s defense [RP 35, ¶ 7] claim

12 that military retirement benefits cannot be paid directly to Wife)]. 

13 In his memorandum, Husband does not contest our assumptions. Instead, he

14 states that he is relying on the argument in his docketing statement. [MIO 1] “Our

15 courts have repeatedly held that, in summary calendar cases, the burden is on the party

16 opposing the proposed disposition to clearly point out errors in fact or law.” Hennessy

17 v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. We conclude that

18 Husband has not done so. To the extent he argues that the sanction was
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1 disproportionate to what he contends was a short delay and to the fact that Wife

2 “waited over a decade to bring her claims,” [MIO 2] we are not persuaded. The fact

3 remains that Husband waited until the day of the hearing to file his response.

4 Husband’s argument that Wife was dilatory ignores the fact that he hid the fact that

5 he was receiving benefits for a long period of time without notifying her. 

6 Finally, even if we were to accept Husband’s premise that the court limited

7 Husband’s ability to present material that had been presented on the day of the

8 hearing, it would be an appropriate sanction for Husband’s unexplained and

9 unjustified attempt to unfairly surprise Wife on the day of the hearing. Cf. Santistevan

10 v. Centinel Bank of Taos, 96 N.M. 730, 732-33, 634 P.2d 1282, 1284-85 (1981)

11 (noting that a party may waive an affirmative defense where it waits until the eleventh

12 hour to raise it).

13 For all of these reasons, we hold that no error or abuse of discretion has been

14 demonstrated. 

15 B. Interpretation of the MSA

16 Husband contends that the court erred in its interpretation of the marital

17 settlement agreement. He argues that under the language of the agreement, Wife was

18 not entitled to 10% of the payments when they were actually made, but rather that she
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1 was entitled to 10% of the payments to which Wife would have been entitled in 1980.

2 Under Husband’s interpretation, this amount would be frozen at $168.18 per month.

3 [DS 2; MIO 2-8]

4 Marital settlement agreements are contracts and are subject to contract law. See

5 Herrera v. Herrera, 1999-NMCA-034, ¶ 9, 126 N.M. 705, 974 P.2d 675. Contracts

6 are enforced as written unless they are ambiguous. Cf. Marshall v. Providence Wash.

7 Ins. Co., 1997-NMCA-122, ¶ 22, 124 N.M. 381, 951 P.2d 76. “A contract is deemed

8 ambiguous only if it is reasonably and fairly susceptible of different constructions.

9 Whether ambiguity exists is a question of law; therefore, this Court reviews the

10 district court’s decision de novo.” Envtl. Control, Inc. v. City of Santa Fe, 2002-

11 NMCA-003, ¶ 14, 131 N.M. 450, 38 P.3d 891 (filed 2001) (citation omitted).

12 “[W]e view the contract as a harmonious whole, give meaning to every provision, and

13 accord each part of the contract its significance in light of other provisions.” Pub.

14 Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 19, 131 N.M. 100,

15 33 P.3d 651. 

16 The settlement agreement [RP 16] provided:

17 [Husband] owns a non-vested Military Service Retirement Annuity

18 arising from his employment during the marriage, which he

19 acknowledges to be a community asset. [Husband] now declares himself

20 to be a trustee, for [Wife’s] benefit, of ten per cent (10%) of his present
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1 vested or contingent rights in said Military Retirement Annuity and any

2 substitute or successor plans arising from his military employment. As

3 Trustee, [Husband] agrees that, when he receives any such benefit, he

4 will promptly pay to [Wife] ten per cent (10%) of each payment received

5 from the plan or plans, each month. (Emphasis added.)

6 We disagree with Husband’s argument that Wife was entitled to 10% of the

7 payment to which she would have been entitled in 1980, $168.18 per month. The

8 language we have emphasized unambiguously recognizes that the payments, if any,

9 will be made in the future. The language, “when [Husband] receives any such

10 benefit,” he will pay 10% of “each payment received” clearly reflects the

11 understanding that the payments will be made in the future, and at that future time,

12 Wife will be entitled to 10% of each payment as it is made. 

13 Husband argues that the reference to “present contingent rights” equates with

14 an interpretation that the amount of the payments was locked in as of 1980. [MIO 2-8]

15 We disagree. The reference to “contingent” benefits did nothing more than recognize

16 that there were uncertainties about when the future payments would begin, how much

17 they might be, or whether there would be any retirement benefits at all. Husband

18 admits that, when the MSA was made in 1980, “New Mexico precedent at the time

19 was highly uncertain as to whether [Wife] could claim any interest in [Husband’s]

20 retirement benefits.” [MIO 8] Given this context, the reference to “present vested or
8

1 contingent rights” only recognizes that, although the retirement benefits were not

2 vested and payable in 1980, during the marriage Husband had accrued time toward a

3 military pension that might ripen in the future, and that whatever interest Husband had

4 in his benefits in 1980, some portion of that may well have been community property.

5

6 In our view, the language on which Husband relies describes the nature of the

7 benefits. By contrast, the language we have emphasized focuses on the time the

8 benefits are received and plainly provides that “when he receives any such benefit, he

9 will promptly pay to [Wife] ten per cent (10%) of each payment received from the

10 plan or plans, each month.” We believe this language clearly captures the idea that

11 the correct valuation is determined “when” each payment is received. 

12 Husband also argues that the court did not have the power to “reform” the

13 agreement. [MIO 8] However, the court did not reform the agreement. Rather, as we

14 have discussed, the court enforced the agreement as it was written.

15 C. Laches 

16 Husband argues that Wife’s claims prior to July 1, 2004 are barred by laches

17 or the applicable statute of limitations. [DS 17] In his memorandum, he no longer

18 seriously pursues this argument and instead contends that “she was allowed . . . to sit
9

1 on her rights.” [MIO 10] We reject this argument. The court considered the

2 testimony of the parties and found that Husband did not tell Wife he had retired and

3 had begun to draw benefits. Accordingly, Husband cannot fail to inform Wife and

4 now claim that Wife’s recovery is barred either by laches or the statute of limitations.

5 See Garcia v. Garcia, 111 N.M. 581, 588, 808 P.2d 31, 38 (1991) (stating that in order

6 to rely on laches, the party must show that the other party engaged in delay despite

7 knowledge of the facts and an opportunity to institute a suit); Beneficial Fin. Co. of

8 N.M. v. Alarcon, 112 N.M. 420, 425, 816 P.2d 489, 494 (1991) (stating that “where

9 a party against whom the cause of action accrues prevents the one entitled to bring the

10 cause from obtaining knowledge thereof by fraudulent concealment,” the statute of

11 limitations does not begin to run until the right of action is discovered (internal

12 quotation marks and citation omitted)). 

13 D. Prejudgment Interest

14 Husband argues that the court erred in awarding prejudgment interest. [DS 17;

15 MIO 10-12] He argues that the court could not do so because the settlement

16 agreement did not provide for it, and there is no statutory authority for the award. [DS

17 17; MIO 11-12] 

18 A court in a divorce action may award interest as in other cases, and we review
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1 the court’s decision for an abuse of discretion. See Jurado v. Jurado, 119 N.M. 522,

2 531, 892 P.2d 969, 978 (Ct. App. 1995). 

3 We disagree with Husband’s argument. A marital settlement agreement is a

4 contract. See Herrera, 1999-NMCA-034, ¶ 9. Husband’s breach of fiduciary duty

5 and his breach of the MSA deprived Wife of the use of payments, to which she was

6 entitled, over a significant period of time. Accordingly, the court could award

7 prejudgment interest as a part of damages. See NMSA 1978, § 56-8-3 (1983) (stating

8 that prejudgment interest may be awarded for breach of contract); United Nuclear

9 Corp. v. Allendale Mut. Ins. Co., 103 N.M. 480, 488, 709 P.2d 649, 657 (1985)

10 (stating that “[c]ontract damage awards against one who fails to perform should fully

11 compensate the injured party for all damages naturally flowing from such breach” and

12 that “[p]rejudgment interest is meant to compensate a plaintiff for injury resulting

13 from deprivation of the promised performance and for loss of the use and earning

14 power of [the] plaintiff’s own funds”). Here, Husband wrongfully retained money

15 that was due to Wife, and the award of prejudgment interest compensated Wife for her

16 loss of the use of the money. As such, it was properly awarded as an element of

17 damages to ensure that Wife was made whole. We conclude that no abuse of

18 discretion has been shown. See Jurado, 119 N.M. at 531, 892 P.2d at 978. 
11

1 Finally, we observe that some of the issues raised in Husband’s docketing

2 statement and addressed by our notice have not been discussed in his memorandum

3 in opposition. We need not address those issues further. See State v. Johnson, 107

4 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that when a case is decided

5 on the summary calendar, an issue is deemed abandoned when a party fails to respond

6 to the proposed disposition of the issue). 

7 For all of these reasons, we affirm.

8 IT IS SO ORDERED.

9 _______________________________

10 JAMES J. WECHSLER, Judge

11 WE CONCUR:

12 __________________________________

13 MICHAEL D. BUSTAMANTE, Judge

14 __________________________________

15 LINDA M. VANZI, Judge