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

 2 YVONNE GARDEA, n/k/a
 3 YVONNE GALLEGOS,

 4        Petitioner-Appellee,

 5 v.                                                                        NO. 29,275

 6 ROBERT GARDEA,

 7        Respondent-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Elizabeth E. Whitefield, District Judge

10 Law Offices of Lynda Latta, LLC
11 Lynda Latta
12 Albuquerque, NM

13 for Appellee

14 Robert Gardea
15 Albuquerque, NM

16 Pro Se Appellant

17                             MEMORANDUM OPINION

18 KENNEDY, Judge.

19        Robert Gardea (Respondent) appeals from the memorandum order denying his

20 motion to amend the judgment and final decree of marriage and clarifying the division

21 of military retirement pay. [RP273] The district court denied the motion on the

22 basis that it lacked jurisdiction to review the matter on the merits. [Id.] The calendar
 1 notice proposed summary reversal.          Yvonne Gardea, n/k/a Yvonne Gallegos

 2 (Petitioner) has filed a memorandum in opposition. Unpersuaded, we reverse and

 3 remand for a hearing on the merits of Respondent’s motion.

 4 DISCUSSION

 5        “A voluntary marital settlement agreement entered into by both spouses is

 6 sacrosanct and will not be upset by the court ‘absent fraud, duress, mistake, breach of

 7 fiduciary duty, or other similar equitable grounds for invalidating an agreement.’”

 8 Herrera v. Herrera, 1999-NMCA-034, ¶ 18, 126 N.M. 705, 974 P.2d 675 (quoting

 9 Ruggles v. Ruggles, 116 N.M. 52, 70, 860 P.2d 182, 200 (1993) (emphasis added)).

10 Rule 1-060(B) NMRA provides that, “[o]n motion and upon such terms as are just, the

11 court may relieve a party or his legal representative from a final judgment, order or

12 proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable

13 neglect; . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic),

14 misrepresentation or other misconduct of an adverse party; . . . or (6) any other reason

15 justifying relief from the operation of the judgment.” Rule 1-060(B)(6) provides that

16 the “motion shall be made within a reasonable time, and for reasons (1), (2) and (3)

17 not more than one-year after the judgment, order or proceeding was entered or taken.”

18 (Emphasis added.)

19         Respondent’s motion asserts that the MSA [RP 125 ¶ G, RP 126 ¶ C, RP 129


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 1 ¶ k] and the final judgment [RP 135 ¶ F] contain inconsistencies. The MSA and the

 2 final judgment state that Petitioner was awarded 11.6 percent in Respondent’s military

 3 retirement payout, which is the entire community interest in the military retirement

 4 fund, rather than one-half of the community interest in the fund, or 5.8 percent. [RP

 5 125]    According to Respondent, the parties agreed, based on an agreed-upon

 6 economist’s evaluation, that the community share of the military pension was 11.6

 7 percent. [RP 264] As such, Petitioner was entitled to one-half of the community

 8 interest or 5.8 percent of the military retirement monthly payout. As Respondent

 9 points out, the MSA contemplates that the payout amount would be approximately

10 $125.00 per month, which, he asserts, is approximately equal to 5.8 percent or one-

11 half interest in the community share of the retirement payout, but then the MSA and

12 the final judgment also state that Petitioner is entitled to 11.6 percent of the payout.

13 [RP 125 ¶ G, RP 126 ¶ C, RP 129 ¶ k, RP 135 ¶ F].

14        In the memorandum, Petitioner continues to argue that Respondent’s motion is

15 an untimely Rule 1-059(E) NMRA motion to amend the judgment, filed more than ten

16 days after entry of the judgment. [MIO 3] In addition, Petitioner argues that if the

17 motion is a Rule 1-060(B)(6) motion that it was not filed within a reasonable time

18 following the entry of the judgment.           [Id.]   Finally, Petitioner contends that

19 Respondent has not established the existence of exceptional circumstances required


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 1 to invoke Rule 1-060(B)(6). [MIO 3-4] We are not persuaded.

 2        First, in our view, Respondent’s motion is not governed by Rule 1-059(E)

 3 NMRA, but by Rule 1-060(B)(6). See, e.g., Martinez v. Friede, 2004-NMSC-006,

 4 ¶ 20, 135 N.M. 171, 86 P.3d 596 (stating that “Rule 1-060(B)(6) provides that the

 5 court may relieve a party from a final judgment for any other reason justifying relief

 6 from the operation of the judgment. We have stated that Rule 1-060(B)(6) is designed

 7 to apply only to exceptional circumstances, which, in the sound discretion of the

 8 [district] judge, require an exercise of a reservoir of equitable power to assure that

 9 justice is done”) (internal quotation marks and citation omitted). Second, it appears

10 that Respondent, and possibly Petitioner, may not have realized the alleged

11 inconsistencies in the MSA and final judgment until Respondent filed the motion on

12 January 20, 2009, approximately three years after the payments to Petitioner

13 apparently began in December 2006. [RP 265 ¶ F] According to Respondent,

14 overpayments to Petitioner may have been made since that time in the amount of

15 $3,696.25. [RP 265 ¶ 2] Thus, although the motion was filed in January 2009, long

16 after the judgment was filed in December 2006, we hold that Respondent has made

17 a prima facie showing that he filed the motion within a reasonable time of discovering

18 the alleged inconsistencies such that relief pursuant to Rule 1-060(B)(6) may be

19 appropriate. In addition, Respondent has made a prima facie showing that the MSA


                                             4
 1 and the final judgment contain inconsistencies as to the proper percentage and dollar

 2 amount that was intended to be Petitioner’s share of Respondent’s military retirement

 3 payout.

 4        As Petitioner points out, the district court ruled that it lacked jurisdiction to

 5 review the merits of Respondent’s motion prior to the date Petitioner’s response

 6 would have been due. [MIO 5] As a result, Petitioner’s positions on when the alleged

 7 inconsistencies were discovered and whether there indeed are any inconsistencies,

 8 have not been addressed.

 9 CONCLUSION

10        For the foregoing reasons, we reverse the January 29, 2009, order and remand

11 to the district court so that Petitioner may file a response to Respondent’s motion.

12 Thereafter, the district court shall hold a hearing on the circumstances surrounding the

13 discovery of the inconsistencies, if any, in order to consider whether relief pursuant

14 to Rule 1-060(B)(6) is appropriate and whether the MSA and final judgment require

15 adjustment.

16        IT IS SO ORDERED.


17                                          ___________________________________
18                                          RODERICK T. KENNEDY, Judge

19 WE CONCUR:


                                              5
1 ___________________________
2 MICHAEL E. VIGIL, Judge



3 ___________________________
4 TIMOTHY L. GARCIA, Judge




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