CHRISTIANSEN V. CHRISTIANSEN, 1983-NMSC-058,
100 N.M. 102, 666 P.2d 781 (S. Ct. 1983)
JULIE ANN CHRISTIANSEN,
Petitioner-Appellee and
Cross-Appellant,
vs.
RALLAND CHRISTIANSEN, Respondent-Appellant and
Cross-Appellee.
SUPREME COURT OF NEW MEXICO
1983-NMSC-058, 100 N.M. 102, 666 P.2d 781
Appeal from the District Court of Los
Alamos County, Michael Francke, District Judge
Rothstein, Bailey, Bennett & Daly,
Martha A. Daly, Santa Fe, New Mexico, for Appellant and Cross-Appellee.
Griffith & Cruse, Prentis Reid
Griffith, Jr., Los Alamos, New Mexico, for Appellee and Cross-Appellant.
Payne, C.J., wrote the opinion. WE CONCUR:
WILLIAM F. RIORDAN, Justice, HARRY E. STOWERS, Justice
{1} This appeal arises from a
suit for dissolution of marriage. While married, the parties entered into a
written agreement which purported to divide,
inter alia, their community
interest in the family residence, transmute the community interest in husband's
retirement funds into his own separate property, and require each party to give
their child $5,000 upon the sale of the family residence. The trial court
ruled, however, that this agreement was inadmissible because it had not been
properly acknowledged pursuant to NMSA 1978, Section
40-2-4. The trial court
also held that the parties were jointly responsible for providing post-minority
education for their child, that husband's retirement funds were community
property, and that both parties' attorneys' fees and wife's expert witness fees
were to be treated as community debts paid for out of community assets. On
appeal, husband argues that the trial court's failure to admit evidence of the
marital agreement constitutes reversible error. On cross-appeal, wife
challenges the trial court's ruling on the issue of post-minority education and
the award of attorneys' fees. We reverse in part and affirm in part.
{2} We first consider whether
an unacknowledged marital agreement is binding between the parties to that
agreement. Wife argues it is not. Although the agreement was not acknowledged
by the parties, there is substantial evidence in the record that wife
"proved" the agreement. Section 40-2-4 provides:
All contracts for marriage settlements and contracts for
separation, must be in writing, and executed and acknowledged or proved in
like manner as a grant of land is required to be executed and acknowledged or
proved. [Emphasis added.]
We find it significant that wife, who now seeks to invalidate
the marital agreement on grounds of improper acknowledgment, testified at trial
that she had executed the agreement, and that her signature was valid. Under
similar facts and an identical statute, a California court upheld the validity
of a marital agreement which was not acknowledged at the time of execution. See
In Re Marriage of Cleveland, 76 Cal. App.3d 357, 142 Cal. Rptr. 783 (1977);
see also Tyre v. Lewis, 276 A.2d 747 (Del.Ch. 1971); McAlpine v.
McAlpine, 116 Me. 321, 101 A. 1021 (1917); Rittener v. Sinclair, 374
So.2d 680 (La.Ct. App.1978). The California court looked to the fact that
husband and {*104} wife testified under
oath as to the validity of their signatures on the unacknowledged agreement,
and held these statements were sufficient proof under the statute, thus
making the agreement binding between the parties. In the present case, wife proved
the marital agreement by testifying under oath at trial as to the validity of
her signature.
{3} Wife attempts to
distinguish the
Cleveland ruling by arguing that in the instant case
there is no proof of husband's signature. Specifically, she contends that even
if this Court should adopt the
Cleveland decision and hold that
subsequent testimony can "prove" the marital agreement, the fact
remains that she was the only witness to her signature, in violation of NMSA
1978, Section
14-13-8, which requires two witnesses to each signature as well
as a "certificate." Reliance on this statute is misplaced. This
statute is inapplicable where the wife orally "proved" the agreement.
Although husband did not testify to his signature at trial, that does not
render the agreement ineffective. At the time husband testified at trial, the
trial court had already ruled the agreement and any testimony regarding it
inadmissible. Husband has never challenged the validity of his signature on the
agreement. Because we hold the agreement was "proved" by wife's
subsequent testimony under oath, we find that the trial court erred in refusing
to admit it into evidence.
{4} We next consider whether
the trial court erred in ordering the parties jointly responsible for the
post-minority education of their child.
Spingola v. Spingola, 93 N.M.
598,
603 P.2d 708 (1979). NMSA 1978, Section
40-4-7 does not give the trial
court jurisdiction over post-minority education for children. It provides in
pertinent part:
The district court shall have exclusive jurisdiction of all
matters pertaining to the guardianship, care, custody, maintenance and
education of the children, and with reference to the property decreed or funds
created for their maintenance and education, so long as they, or any of them
remain minors. [Emphasis added.]
Because the parties' child was beyond the age of minority, we
hold this statute to be controlling. The trial court's order is overruled
insofar as it requires either party to pay for the post-minority support of
their child.
{5} Last, we consider whether
the trial court abused its discretion when it included attorneys' fees and
wife's expert witness fees as community debts to be paid out of community
assets. We find no abuse of discretion on the part of the trial court. Wife
specifically attacks the trial court's failure to find that she was unable to
pay her court costs which, she argues, should be paid by husband and not by
community assets. The record indicates, contrary to her argument, that she had
ample funds to pay her own attorneys' fees and expert witness fees. In addition
to acquiring one-half of the assets upon division of the property, wife
received an additional $7,000 and testified that she had another $2,300 in the
bank at the time of trial.
{6} We hold, therefore, that
it was proper for the trial court to view these expenses as community debts and
to consider the financial resources of both parties when making an award of
attorneys' fees and court costs. This does not contradict the legislative
intent expressed in Section 40-4-7, that a court may make an order "as
will ensure either party an efficient preparation and presentation of his
case."
See generally Hertz v. Hertz, 99 N.M. 320,
657 P.2d 1169
(1983).
{7} We find that the trial
court's order on this issue does not constitute an abuse of discretion.
{8} This matter is remanded
to the trial court for further proceedings consistent with this opinion.
WE CONCUR: WILLIAM F. RIORDAN, Justice, HARRY E. STOWERS,
Justice