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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 MICHELLE E. GARCIA,

 3          Petitioner-Appellant,

 4 v.                                                                                   NO. 32,741

 5 DANIEL S. GARCIA,

 6          Respondent-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
 8 James L. Sanchez, District Judge


 9 Meintzer Law Firm
10 Ed Meintzer
11 Los Lunas, NM

12 for Appellant

13 Law Office of David C. Chavez
14 David C. Chavez
15 Los Lunas, NM

16 for Appellee
 1                             MEMORANDUM OPINION

 2 WECHSLER, Judge.

 3   {1}   Petitioner appeals from a district court order denying her motion to reconsider

 4 an order dismissing her attempt to re-open divorce proceedings three years after the

 5 entry of the final decree. We issued a calendar notice proposing to affirm. Petitioner

 6 has responded with a memorandum in opposition. We affirm.

 7 ISSUE A

 8   {2}   Petitioner continues to claim that the district court erred in refusing to re-open

 9 the parties’ divorce proceedings, either under Rule 1-060(B) NMRA or NMSA 1978,

10 Section 40-4-20 (1993). [MIO 1] Rule 1-060(B) states:

11                On motion and upon such terms as are just, the court may relieve
12         a party or his legal representative from a final judgment, order or
13         proceeding for the following reasons:
14                (1) mistake, inadvertence, surprise or excusable neglect;
15                (2) newly discovered evidence which by due diligence could
16         not have been discovered in time to move for a new trial under Rule
17         1-059 NMRA;
18                (3) fraud (whether heretofore denominated intrinsic or
19         extrinsic), misrepresentation or other misconduct of an adverse party;
20                (4) the judgment is void;
21                (5) the judgment has been satisfied, released or discharged, or
22         a prior judgment upon which it is based has been reversed or otherwise
23         vacated, or it is no longer equitable that the judgment should have
24         prospective application; or
25                (6) any other reason justifying relief from the operation of the
26         judgment. The motion shall be made within a reasonable time, and for
 1         reasons (1), (2) and (3) not more than one-year after the judgment, order
 2         or proceeding was entered or taken. . . .

 3   {3}   Petitioner’s May 2012 motion sought to set aside a September 2009 divorce

 4 decree and also appears to have sought to set aside the property division that occurred

 5 in two prior divorces between the parties. [RP 1] Petitioner’s claim that Respondent

 6 committed fraud implicates reason (3) under Rule 1-060(B). [RP 8, ¶ 45] However,

 7 Petitioner’s motion was filed well beyond the one-year time limit for invoking that

 8 provision.    To the extent that Petitioner believed that there were exceptional

 9 circumstances permitting relief under Rule 1-060(B)(6), we note that this provision

10 may not be used to circumvent time limits when a party’s claims fall within the other

11 provisions of the rule. See Marinchek v. Paige, 108 N.M. 349, 351, 772 P.2d 879, 881

12 (1989); Thompson v. Thompson, 99 N.M. 473, 475, 660 P.2d 115, 117 (1983). We do

13 not believe that the district court abused its discretion in determining that Rule 1-

14 060(B)(3) applied to Petitioner’s arguments. [RP 171-72] See Martinez v. Friede,

15 2004-NMSC-006, ¶ 19, 135 N.M. 171, 86 P.3d 596 (observing that we review ruling

16 for abuse of discretion), superseded by rule on other grounds as stated in State v.

17 Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. As such, Petitioner could

18 not rely on Rule 1-060(B)(6) to circumvent the time limit. We reject Petitioner’s

19 claim [MIO 1, 6] that she is raising a subject matter challenge, because to equate a

20 fraud claim with a subject matter challenge would render meaningless the time limit

                                              2
 1 applicable to Rule 1-060(B)(3). See State v. Garcia, 2002-NMCA-050, ¶ 12, 132

 2 N.M. 180, 45 P.3d 900 (rejecting an interpretation of a rule that would render part of

 3 the rule meaningless).

 4   {4}   With respect to Section 40-4-20, that statute permits the re-opening of a divorce

 5 case where there remains undivided community property. Here, the district court

 6 determined that there was no undivided community property, but that Petitioner

 7 simply wanted a re-division because she received a “bum deal.” [RP 170] The

 8 language of the 2009 marital settlement agreement [MSA] supports the district court’s

 9 determination. [RP 53] To the extent that Petitioner claimed that some property was

10 undivided, the district court could construe the broad language of the MSA to have

11 resolved the issue, and to the extent that Petitioner’s division arguments had merit,

12 they concern the execution of the prior agreements. [RP 141-142]

13 ISSUE B

14   {5}   Petitioner continues to claim that the district court erred in denying her motion

15 to reconsider and attempt to amend her motion. [MIO 7-8] As we interpret

16 Petitioner’s arguments, she was essentially re-stating the claims of fraud and lack of

17 execution that were the subject of her initial motion. [RP 66] As such, we affirm for

18 the reasons set forth above.




                                               3
 1 ISSUE C

 2   {6}   Petitioner continues to claim that the district court should have recused at the

 3 motion to reconsider stage because Petitioner believed that the court was improperly

 4 impeding her attempts to satisfy the requirements of Section 40-4-20 and her attempts

 5 to get the judge to change his mind. [MIO 8] As we interpret Petitioner’s arguments,

 6 they essentially claim that the district court was committing errors in its rulings. These

 7 rulings are subject to appellate review and do not form the basis of recusal. See In the

 8 Matter of Schwartz, 2011-NMSC-019, ¶ 21, 149 N.M. 721, 255 P.3d 299 (noting that

 9 improper rulings are not grounds for recusal).

10 ISSUE D

11   {7}   Petitioner argues that the district court erred in refusing to disqualify

12 Respondent’s counsel because he was a witness to the alleged fraudulent conduct that

13 occurred during the divorce proceedings. [MIO 10] Petitioner states that counsel was

14 involved in the party’s two previous divorces and therefore was a witness to

15 inequitable treatment and a possible co-conspirator.          Even if we assume that

16 Respondent’s counsel was a witness to fraud or inequity, this argument is only

17 relevant to the Rule 1-060(B)(3) claim, which was not timely, and therefore it was

18 never necessary to consider him as a witness.




                                               4
1   {8}   For the reasons set forth above, we affirm.

2   {9}   IT IS SO ORDERED.


3                                                ________________________________
4                                                JAMES J. WECHSLER, Judge


5 WE CONCUR:


6 ________________________________
7 RODERICK T. KENNEDY, Chief Judge


8 ________________________________
9 CYNTHIA A. FRY, Judge




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