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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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

v. NO. 28,971 9 TEDDY R. SEDILLO, 10 Respondent-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 12 Violet C. Otero, District Judge 13 New Mexico Legal Aid 14 Marcia J. Lieberman 15 Albuquerque, NM 16 for Appellee 17 Teddy R. Sedillo 18 Las Cruces, NM 19 Pro Se Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 222 Husband appeals from the final decree of dissolution of marriage. [RP 93] 1 The decree was entered upon Linda Marie Parker-Sedillo’s (Wife’s) verified 2 petition and the testimony and numerous exhibits Wife presented with her counsel 3 at the hearing, at which neither Husband nor his counsel at that time, Mr. Arrieta, 4 appeared. [Id.] Husband raises the following eight (8) issues on appeal, 5 contending that the district court erred as follows: (1) in not granting a continuance 6 or holding a hearing prior to the schedul ed trial date which conflicted with a 7 criminal hearing; (2) in not granting a c ontinuance in deference to a criminal jury 8 trial setting conflicting with its own setting; (3) in not making a sufficient showing 9 that the granting of the motion for continuance would have created a significant 10 inconvenience to the court or either party; (4) in failing to consider the factors 11 present and denying the motion to continue the trial and holding the hearing on the 12 motion on the date of trial; (5) in aw arding Wife interim relief including child 13 support in the amount of $2,427.92, commencing September 1, 2007, without 14 considering that Husband was unemployed and fired from his position because of a 15 zero tolerance community policy regarding domestic violence; (6) in awarding 16 Wife community assets including the marital home without equitable division; (7) 17 by not equally dividing Wife and Husband’s retirement benefits at the time of the 183 divorce and deviating from equal distributi on; and (8) by entering findings that are 1 not supported by substantial evidence. [DS 7-9] 2 This Court’s calendar notice proposed summary affirmance. Husband has 3 filed a memorandum in opposition that we have duly considered. Unpersuaded, 4 however, we affirm. 5 DISCUSSION 6 Issues 1-4: The District Court’s De nial of the Motion for Continuance 7 We review the denial of a continuance for an abuse of discretion . Jaycox v. 8 Ekeson , 115 N.M. 635, 638, 857 P.2d 35, 38 (1993) (citing Albuquerque Nat’l 9 Bank v. Albuquerque Ranch Estates, Inc. , 99 N.M. 95, 104, 654 P.2d 548, 557 10 (1982). An abuse of discretion will be found if the decision is contrary to logic and 11

reason. Kueffer v. Kueffer, 110 N.M. 10, 13, 791 P.2d 461, 464 (1990). This Court 12 finds it helpful to set forth the procedural history of this case in order to place the 13 district court’s denial of Husband’s mo tion to continue the August 2008 trial date 14 in context. Wife filed the verified petition for dissolution of marriage on April 15 18, 2007. [RP 1] On June 18, 2007, the di strict court filed an order appointing a 16 hearing officer and a notice of hearing for an interim order dividing income and 17 expenses and an order for production. [RP 13] The hearing was set for July 3, 18 2007. [RP 15] On June 25, 2007, Husband filed a motion for continuance of the 194 interim hearing, Wife consented to the motion [RP 17], and the district court 1 granted it. [RP 21] The hearing on interim relief was then set for September 11, 2 2007. [RP 23] 3 Wife filed an emergency motion for supervised visitation on July 13, 2007, 4 asserting that Husband had violated the order of protection entered against him. 5 [RP 28] Wife also filed a request for production of documents to Husband, 6 requesting Husband’s federal and state tax returns, W-2 forms, wage and payroll 7 statements, and other insurance and employment documentation. [RP 30-31] A 8 hearing on Wife’s emergency motion wa s set for August 7, 2007. [RP 34] 9 Thereafter, Wife changed counsel and moved to continue the hearing on the 10 emergency motion pending a report from the children’s therapist. [RP 41] 11 Husband consented to the motion and the district court granted it, moving the 12 hearing to September 12, 2007. [RP 43] 13 On September 11, 2007, pursuant to the scheduled hearing on Wife’s motion 14 for interim relief, the hearing officer filed a report. [RP 46] The report indicates 15 that the hearing was held, Wife app eared, and submitted a proposed interim 16 monthly income and expense statement. [Id.] However, neither Husband nor his 17 counsel appeared at the hearing despite having received notice of it. [Id., ¶ 4] 18 The hearing officer adopted Wife’s proposed interim division upon Husband’s 195 default [RP 47], concluding that “in order to equalize income [Husband] shall pay 1 [Wife] $2,427.92 per month commencing September, 2007 until further order of 2 the court.” [Id.] The report attached Wi fe’s detailed interim monthly income and 3 expense statement. [RP 48] The hearing officer filed a notice of filing of the 4 report, served it on counsel for both parties, and indicated that the parties had ten 5 days to serve objections and a request and notice of hearing. [RP 44] 6 Wife filed a verified motion for an order to show cause on October 18, 2007. 7 [RP 54] The motion indicates that Husband did not file objections to the hearing 8 officer report on interim support and had not paid the interim support ordered to be 9 paid. [RP 54] The district court filed an order to appear and show cause on October 10 23, 2007, setting a hearing for November 5, 2007. [RP 58] The record proper 11 does not indicate the outcome of the show cause hearing. 12 Wife filed a request for pre-trial hearing on February 7, 2008, and the 13 hearing was set for March 3, 2008. [RP 62, 64] At that time, Husband was 14 appearing pro se, although no notice of withdraw al of his attorney had been filed. 15 [RP 65, 67, 69] The district court file d the pretrial order on March 4, 2008, and 16 trial was set for June 12, 2008. [RP 71] The district court judge stated in the 17 pretrial order: “No [c]ontinuances will be granted absent extraordinary 18 circumstances.” [RP 71] The pretrialorder was served on Husband’s counsel. 196 [RP 72] Husband’s counsel served di scovery on Wife and responded to Wife’s 1 discovery in March 2008. [RP 73, 74] 2 On May 1, 2008, the district court filed an amended notice of trial moving 3 the trial date from June 12 to June 26, 2008. [RP 75] On May 23, 2008, Husband 4 filed a motion to continue the trial stating that his counsel would be in a jury trial 5 on June 26, 2008, Wife consented to the mo tion, and the district court granted the 6 motion, stating that the district court would reset the hearing “upon request for 7 hearing by the parties.” [RP 77] Wife filed a request for a trial date on June 19, 8 2008. [RP 79] On June 23, 2008, the district court set trial once again for August 9 20, 2008. [RP 81] On July 1, 2008, Hu sband filed a motion to continue, stating 10 that counsel for Husband would be in a jury trial on that date in a case where the 11 six-month rule would run on August 28, 2008, and stating that Wife opposes the 12 motion. [RP 83] Wife filed her list of exhibits on August 8, 2008, and a schedule 13 of community property and liabilities on August 11, 2008. [RP 85, 87] The record 14 proper contains no ruling on the motion for continuance prior to trial. Neither 15 Husband nor his attorney appeared on Augus t 20, 2008, at the trial. [RP 93, 1 st 16 paragraph] On September 2, 2008, Wife filed a request for a presentment hearing 17 for the final decree of dissolution of marriag e. [RP 91] The final decree was filed 187 on September 5, 2008. [RP 93] Husband f iled a notice of appeal on October 2, 1 2008. [RP 102] 2 The procedural history of this case i ndicates that Husband and his attorney 3 engaged in a pattern of delay and obs truction, including several motions for 4 continuances, nonappearances, and defaults atthe interim hearing and at the trial, 5 as well as failure to comply with th e order regarding interim support, which 6 necessitated a motion for order to show cau se, a show cause order, and hearing. 7 When the pretrial order was filed, the di strict court judge specifically stated that 8 exceptional circumstances would be required for the trial date to be continued. 9 Thereafter, the district court itself reset the trial date, and granted Husband’s 10 unopposed motion to continue the reset trial date, after which a third trial date was 11 set. When Husband’s counsel again move d to continue the trial date, however, 12 Wife did not consent, and the trial court di d not rule on the motion prior to trial. 13 Despite the fact that the August 20, 2008 trial date had not been continued or 14 vacated, however, Husband and Husband’s counsel did not appear to argue the 15 motion or to proceed to trial. 16 When a motion for continuance has been made and not ruled on prior to 17 trial, counsel and his client cannot simply fail to appear. See, e.g., In re Neal , 18 2003-NMSC-032, ¶¶ 19-21, 134 N.M. 594, 81 P.3d 47. In In re Neal , our Supreme 198 Court expressed its disapproval of this conduct. As in In re Neal , Husband and his 1 attorney expected the Valencia district court to “revise its schedule to fit his 2 convenience.” Id. ¶ 20. “[I]f all lawyers behave d like [Husband and his attorney], 3 the principles of judicial economies and administration of justice could be 4 compromised.” Id. 5 In the memorandum, Husband continues to claim that his attorney’s criminal 6 trial should have taken precedence over this trial, and that his attorney could show 7 up at that trial and disregard this one. [MIO 3] Husband also argues that In re 8 Neal is distinguishable from this case, becau se the attorney in that case failed to 9 appear “without just cause.” [Id.] Husb and contends that this case is different, 10 because his attorney tried to get a heari ng on the motion to continue prior to the 11 trial date, but did not succeed. [Id.] In th is case, the motion hearing was set for the 12 same date as the trial, and, therefore, according to Husband, when Husband and his 13 attorney did not appear, they were inappropriately defaulted. [Id.] We are not 14 persuaded. 15 The district court was unwilling to si mply grant yet another continuance 16 when the opposing party disagreed and Husb and and his attorney had engaged in a 17 pattern of delay and nonappearances. Thus , we conclude the district court did not 18 abuse its discretion by refusing to grant a continuance prior to trial despite 199 Husband’s attorney’s efforts to persuadeit to do otherwise. Having obtained no 1 ruling on the motion to continue prior to trial, Husband and his attorney’s failure to 2 appear was unacceptable and reflected a disregard for “all participants in the legal 3 process”: 4 It is incumbent on attorneys to reso lve scheduling conflicts in advance 5 in order to minimize disruption of the legal system. This is not to 6 suggest that last-minute conflicts will not sometimes arise, or that 7 last-minute reasons for needing a continuance will not occur. The 8 need for such accommodation should be the exception, however, not a 9 strategy employed by counsel. Failing to appear for trial because of a 10 scheduling conflict not addressed inadvance is sanctionable. Not 11 only does such conduct interfere with the court’s schedule, but also it 12 is an unreasonable imposition on all participants in the legal process. 13 Id. “Counsel for litigants, no matter how ‘important’ their cases are, cannot 14 themselves decide when th ey wish to appear.” Id. ¶ 21 (internal quotation marks 15 and citation omitted). 16 With regard to conflicts in court sc heduling, our Supreme Court has stated 17 long ago that counsel may occasionally n eed to arrange for another attorney to 18 assist when court conflicts arise, rather than simply not to appear in one of the 19

cases. See, e.g., Territory v. Lobato , 17 N.M. 666, 680-81, 134 P. 222, 226 (1913). 20 If Husband’s attorney considered his appearance in the criminal case was more 21 important, given that the district court in this case had not granted a continuance 22 prior to trial, it was incumbent that he obtain substitute counsel to appear at the 2310 trial in this case. “The absence of counsel for the defendant in an adjoining 1 county, attending court, is no ground for c ontinuance. If it were, where terms of 2 court conflict, continuances woul d be of frequent occurrence.” Id. (internal 3 quotation marks and citation omitted). 4 Under the circumstances of this case, weaffirm the district court’s decision 5 not to grant yet another continuance and to proceed to consider the documents 6 submitted and the testimony presented without the presence of Husband and his 7 attorney. 8 Issues 5-8: The Dissolution Decree 9 “The trial court is to divide community property equally” and gives the court 10 broad discretion in doing so. Trego v. Scott, 1998-NMCA-080, ¶ 22, 125 N.M. 11 323, 961 P.2d 168. “The division of property, however, need not be computed 12 with mathematical exactness.” Irwin v. Irwin , 121 N.M. 266, 269, 910 P.2d 342, 13 345 (Ct. App. 1995); see also Ruggles v. Ruggles , 114 N.M. 63, 67, 834 P.2d 940, 14 944 (leaving method of distribution and implementation of payment of retirement 15 benefits at dissolution of marriage within the sound discretion of the district court), 16 rev’d on other grounds , 116 N.M. 52, 860 P.2d 182 (1993). 17 In the memorandum, Husband discusses case law that allows a judgment to 18 be set aside, reopened, or voided under circumstances enumerated in Rule 1- 1911 060(B) NMRA. [MIO 4-7] Husband ha s never moved for Rule 1-060(B) relief in 1 the district court, and, on appeal to this Court, other than discussing the principles 2 of the law in this area, Husband pres ents no facts or evidence whatsoever to 3 suggest that any of the provisions of Rule 1-060(B) apply to this case. [Id.] See, 4 e.g., Sunwest Bank v. Roderiguez , 108 N.M. 211, 213, 770 P.2d 533, 535 (1989) 5 (stating that, a party seeking relief from a default judgment must show the 6 existence of grounds for relief under Rule1-060(B), and a meritorious defense); 7 see also Magnolia Mountain Ltd., P’ship v. Ski Rio Partners, Ltd. , 8 2006-NMCA-027, ¶ 44, 139 N.M. 288, 131 P.3d 675 (“Of course, such a 9 defendant would still be required to showgrounds to set aside the judgment under 10 Rule 1-060(B).”). 11 Moreover, as we discussed in the cale ndar notice, on the merits, we have not 12 been presented with grounds for setting as ide or voiding the dissolution decree. At 13 the trial, Wife presented extensive exhibits with regard to both parties’ financial 14 situations including a detailed schedule of the parties’ community assets and 15 liabilities. [RP 85, 87] The final decree i ndicates that the district court equally, 16 fairly, and equitably, if not mathematically, divided the parties’ responsibilities for 17 the children and their community assets and liabilities. 1812 Husband first argues that the district court erred in setting the interim 1 support amount. We note, however, that as discussed above , despite receiving 2 notice of the hearing on interim support, despite receiving notice that the report 3 was filed, and despite receiving notice thatHusband had ten days to object to it, 4 Husband and his attorney did not appear atthe hearing, Husband failed to file any 5 objections to the order, and then he re fused to comply with it. Under the 6 circumstances, we consider that Husb and waived and abandoned any objection he 7 may have had to the interim support amount. 8 Husband next objects to the Wife being awarded the family residence. We 9 affirm the district court’s decision. The parties have minor children with interests 10 in consistency and stability. [RP 93-94] Th e parties received joint custody of the 11 children with Wife having primary physical custody. [RP 94] Husband has greater 12 relative earning power, particularly in light of Wife’s disabling illness. [RP 95, ¶¶ 13 16-18] Under the circumstances, we cannot say that the district court abused its 14 discretion in awarding the marital residence to Wife. 15 Husband also argues that the district court did not equally divide the parties’ 16 retirement accounts. The district court immediately awarded Wife her community 17 interest in Husband’s retirement accounts, up to the last full month (March 2007) 18 prior to Wife’s filing of the petition for divorce (April 2007), with all remaining 1913 and future amounts awarded to Husband. [RP 97] We note any inequality claimed 1 is diffused by the fact that Wife undertook to fully pay, among other liabilities, the 2 approximately $10,000 cost for one of the children’s orthodontia and 3 reconstructive work. [RP 95-96, ¶¶ 19-20] Under the circumstances, Husband 4 has not persuaded us that the district court did not comport with applicable case 5 law regarding equitable division of the parties’ retirement accounts and the other 6 community assets and liabilities. See, e.g., Ruggles v. Ruggles , 116 N.M. 52, 860 7 P.2d 182 (1993). Because we cannot say the di strict court abused its discretion, we 8 affirm the district court on this issue. 9 Finally, Husband argues that the final decree is not supported by substantial 10 evidence presented at trial. As we have discussed, however, Husband and his 11 attorney did not appear at trial in a situation where the district court had not 12 granted a continuance. The decree was entered upon the extensive exhibits 13 presented by Wife, which included both pa rties’ financial documentation and a 14 detailed schedule of the parties’ community assets and liabilities. Husband and his 15 attorney were not at trial to present c ountervailing evidence. After the trial, they 16 did not move in district court to set as ide the decree pursuant the rules of civil 17 procedure applicable to default or available to address mistakes, fraud and other 18 extraordinary situations. Finally, Husband does not present any evidence 1914 whatsoever in his memorandum to indicate that there are any facts that would 1 justify any such remedy. We remain pers uaded that the final decree indicates that 2 the district court equally, fairly, and equ itably, if not mathematically, divided the 3 parties’ responsibilities for the children and their community assets and liabilities. 4 CONCLUSION 5 We affirm the final decree of dissolution. 6 IT IS SO ORDERED. 7

8 MICHAEL E. VIGIL, Judge 9 WE CONCUR: 10

11 CYNTHIA A. FRY, Chief Judge 12

13 MICHAEL D. BUSTAMANTE, Judge 14