GRUBER V. GRUBER, 1974-NMSC-055, 86 N.M.
327, 523 P.2d 1353 (S. Ct. 1974)
Carol Lynn GRUBER, Plaintiff-Appellant,
vs.
Robert William GRUBER, Defendant-Appellee.
SUPREME COURT OF NEW MEXICO
1974-NMSC-055, 86 N.M. 327, 523 P.2d 1353
Wollen & Segal, Albuquerque, for
plaintiff-Appellant.
John M. Wells, Albuquerque, for
defendant-appellee.
MONTOYA, J., wrote the opinion. STEPHENSON
and MARTINEZ, JJ., concur.
{1} This appeal concerns the
disposition of a petition to amend a decree of divorce which had been granted
in the District Court of Bernalillo County. Plaintiff-appellant Carol Lynn
Gruber (appellant) filed a petition in the Bernalillo County District Court on
September 27, 1972, to amend the final decree entered February 9, 1972. After a
hearing the Honorable Mary C. Walters entered, on November 17, 1972, a final
order amending the decree of divorce. The pertinent parts of the amended decree
for purposes of this appeal are as follows. Defendant-appellee Robert W.
Gruber, Jr. (appellee) was given the option of either delivering a piano,
alleged by appellant to be her separate property by gift, or the cash sum of
$800. Further, appellee was ordered to pay $150 per month to appellant for a
period of three years as temporary alimony.
{2} A motion to vacate the
November 17, 1972, judgment and for a new hearing, pursuant to Rule 59, Rules
of Civil Procedure (§ 21-1-1 (59), N.M.S.A. 1953 (Repl. Vol. 4, 1970)), was thereafter
filed by appellee on November 27, 1972. A notice of hearing was filed November
28, 1972, by appellant's attorney, setting the motion to vacate for January 2,
1973, before Judge Ryan. On December 14, 1972, a notice of hearing was filed by
appellee's attorney setting the same motion for hearing before Judge Riordan on
December 20, 1972. The Honorable Mary C. Walters left her position as Judge of
the Bernalillo County District Court on December 6, 1972, and was succeeded by
the Honorable William F. Riordan.
{3} Appellee's motion was
heard by Judge Riordan on December 20, 1972, and pursuant to Rule 59, supra,
and Rule 63, Rules of Civil Procedure (§ 21-1-1(63), N.M.S.A. 1953 (Repl. Vol.
4, 1970)), Judge Riordan entered an order that same day vacating the November
17, 1972, judgment and entered a new order denying appellant's petition that
the piano be awarded to her and for temporary alimony. Appeal is taken from
this order.
{4} Appellant contends that
reversible error was committed when Judge Riordan overruled the findings,
conclusions and order of a court of equal jurisdiction, i.e., the trial court
presided over by Judge Walters. She argues that the appellee did not submit
proper grounds for a new trial and that the order of December 20, 1972, was an
abuse of judicial power.
{5} Although the parties
refer to the proceedings before Judge Riordan as a "rehearing," it is
clear that our Rules of Civil Procedure do not authorize such a proceeding.
There are various post-decision or post-judgment proceedings permitted by the
rules, among which are a motion for relief from judgment under Rule 60, Rules
of Civil Procedure
{*329} (§ 21-1-1(60),
N.M.S.A. 1953 (Repl. Vol. 4, 1970)), and motions for a new trial under Rule 59,
supra. In any event, the proceeding can only properly be characterized as a new
trial. For the sake of clarity, we will refer to the proceeding before Judge
Riordan as a "new trial," but limited to the issues of alimony and
the award of a piano to appellant.
{6} While in the instant case
a successor judge granted a new trial after a judgment had been entered by the
predecessor judge, the correct rule, we believe, is stated in Miller v.
Pennsylvania Railroad Co., 161 F. Supp. 633 (D.D.C.1958), where the successor
judge was passing on a motion for judgment notwithstanding the verdict or, in
the alternative, a new trial, the trial judge having died. Judge Holtzoff held
(161 F. Supp. at 636):
"It is well established that if the trial judge dies
after the jury returns a verdict but before a motion for judgment
notwithstanding the verdict or a motion for a new trial is heard or decided,
another judge may pass upon such applications. The latter then becomes vested
with the same broad discretion to grant or deny such motions as was the trial
judge. An exception arises only if the successor judge finds that he cannot
satisfactorily perform such a function by reason of the fact that he did not
preside at the trial, or for some other reason. No such unusual situation
emerges in the case at bar. This case is not within the exception."
{7} Rule 63, supra, which
clearly authorizes a successor judge to consider post-trial motions, reads:
"If by reason of death, sickness, or other disability, a
judge before whom an action has been tried is unable to perform the duties to
be performed by the court under these rules after a verdict is returned or
findings of fact and conclusions of law are filed, then any other judge
regularly sitting in or assigned to the court in which the action was tried may
perform those duties; but if such other judge is satisfied that he cannot
perform those duties because he did not preside at the trial or for any other
reason, he may in his discretion grant a new trial."
{8} In TCF Film Corporation
v. Gourley, 240 F.2d 711, 714 (3d Cir. 1957), the court considered the question
whether a judge other than the one who tried the case had power to rehear the
matter, and discussed the rule that judges of co-ordinate jurisdiction sitting
in the same court and in the same case should not overrule the decisions of
each other. They concluded, however, that the rule was not all embracing and
absolute, but that exceptional circumstances may exist under which the rule is
not to be applied. They held:
"* * *. Such circumstances exist when the judge who made
the original decision is not available to consider the application to rehear
and reverse his decision. If the judge who made the decision dies or resigns
from the court he obviously is no longer available to reconsider it and such
reconsideration must perforce be by another judge if it is to be had at all.
Likewise if the decision has been made by a judge temporarily assigned to the
court for the hearing of a specified case and his assignment is terminated he
is no longer available to entertain an application for rehearing and it must
accordingly by considered by another judge. * * *"
{9} Another matter needing
consideration, because of the circumstances in this case, is the effect of §
21-9-1, N.M.S.A. 1953 (Repl. Vol. 4, 1970), which provides that district courts
are given control over their judgments for a period of thirty days after entry.
If the court fails to rule on a motion directed against a judgment of that
court within thirty days after filing, such failure to rule shall be deemed a
denial thereof. Accordingly, the motion for a new trial in the instant case had
to be disposed of within thirty days of filing or it would have been denied by
operation of law. Therefore, the hearing requested by
{*330}
appellant before Judge Ryan would not have served any useful or effective
purpose, since Judge Ryan was not to take office until January 1973, well after
the thirty-day period when the motion for a new trial was filed. We hold that
Judge Riordan had judicial power to hear and determine appellee's motion for
new trial, and turn to a consideration of the correctness of his ruling in
respect to that motion.
{10} The motion to vacate
judgment and for a new trial was made pursuant to Rule 59, supra, and alleged
among others the following grounds:
(a) That the original decree did not provide for alimony and
it approved the property settlement agreement reached by the parties.
(b) That the property settlement agreement should be
considered final and conclusive and controlling on the issue of the piano.
(c) That appellant failed to show a substantial change of
circumstances.
{11} Rule 59(a), supra, reads
as follows:
"(a) Grounds. A new trial may be granted to all or any
of the parties and on all or part of the issues in an action in which there has
been a trial by jury, for any of the reasons for which new trials have
heretofore been granted. On a motion for a new trial in an action tried without
a jury, the court may open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law or make new
findings and conclusions, and direct the entry of a new judgment."
{12} We had occasion to
interpret this rule where a motion for a new trial had been sought and granted
in Cienfuegos v. Pacheco,
56 N.M. 667,
248 P.2d 664 (1952), and after setting
out subparagraph (a) of the Rule, we stated (56 N.M. at 670, 248 P.2d at
666-667):
"It may be seen that the above rule actually applies to
two types of actions: those tried by a jury, and those tried by the court
without a jury. In the former instance, the reasons for which a new trial may
be granted are stated to be those for which new trials have heretofore been
granted. In instances where the case is tried without a jury, the court is
given a wide discretion by the wording of the portion of the rule applicable to
such cases.
"It has long been well established in New Mexico that
the granting of a new trial rests within the discretion of the trial court and
will be reviewed only for a clear abuse of that discretion. [Citations
omitted.] * * *."
{13} The issue presented then
is whether or not Judge Riordan abused his discretion in granting a new trial
upon the order issued by Judge Walters. Resolution of this question is
complicated by the fact that there is no transcript of the proceedings before Judge
Walters. We are thus limited to an inspection of the record proper.
{14} We are aware that the
amended decree entered by Judge Walters found that the appellant failed to make
a claim for alimony by reason of mistake, inadvertence, excusable neglect, or
other misconduct of the adverse party. It is clear that no alimony was awarded
appellant in the final decree. The petition to amend decree of divorce upon
which Judge Walters ruled, insofar as alimony was concerned, simply asked for
an award until she should remarry "on the grounds that Plaintiff is unable
to support herself and fulfill her higher education, her only support being
earnings from a part-time job as a legal secretary." An affidavit attached
to the petition states, inter alia, additional details concerning appellant's
physical and mental health and economic situation, but no additional grounds.
No grounds cognizable under Rule 60(b), supra, were stated. It is equally clear
that Judge Walters' final order amending the decree of divorce awarded temporary
alimony. However, finding No. 3 by Judge Walters reads as follows:
"3. That the Plaintiff-Petitioner is and has been since
1971, suffering from {*331} physical and
mental illnesses that will not be overcome in the near future, and which will
probably cause her to be hospitalized, and that she does not have the financial
means with which to support herself, complete her education and be cured of her
medical problems."
It is to be noted that Judge Walters specifically found that
the appellant was suffering from mental and physical illnesses since 1971,
which is before the original final decree of divorce was entered. Therefore, we
hold that Judge Riordan did not abuse his discretion in granting a new trial.
{15} Another question to be
determined is whether a final decree which contains no provision for alimony
can be modified to provide for payment of alimony. Our statute, § 22-7-6,
N.M.S.A. 1953, provides in pertinent part as follows:
"* * *; and, on final hearing, may allow the wife such a
reasonable portion of the husband's separate property, or such a reasonable sum
of money to be paid by the husband, either in a single sum, or in installments,
as alimony, as under the circumstances of the case may seem just and proper;
and may modify and change any order in respect to alimony allowed the wife,
whenever circumstances render such change proper; * * *."
{16} Other jurisdictions have
had occasion to interpret similar statutes regarding alimony. In Perry v.
Perry, 202 Va. 849, 853, 120 S.E.2d 385, 388 (1961), the Supreme Court of
Appeals of Virginia said the following:
"The statute here involved, § 20-109, provides only that
the court may 'increase, decrease, or cause to cease' any alimony that may
thereafter accrue; i.e., accrue after the date of the decree, 'whether the same
has been heretofore or hereafter awarded.' Where none has been awarded, then
there is none to 'increase, decrease, or cause to cease.' Plainly this statute
does not allow the reopening of the decree of January 31, 1958, and the
granting now of alimony when none was granted by that decree."
Compare Rodman v. Rodman, 492 P.2d 897 (Colo. App.1972).
{17} We approve the rule
stated in the Perry case, supra, and, therefore, hold that § 22-7-6, supra,
does not authorize an award of alimony subsequent to the entry of the final
decree, when that decree did not initially award any alimony, unless the
claimant is entitled to relief under Rules 59 or 60, supra. We have held that
no cognizable grounds were stated to entertain a hearing on an award of alimony
and that Judge Riordan did not abuse his discretion in granting a new trial.
{18} In view of the
foregoing, the judgment of the trial court below is affirmed, with costs only
to be taxed against appellee in view of the provisions of § 22-7-6, supra.
STEPHENSON and MARTINEZ, JJ., concur.