 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 DONNA KAREN IMBODEN,

 8          Petitioner-Appellee/Cross-Appellant,

 9 v.                                                                           NO. 29,677

10 LESLIE EARL IMBODEN,

11          Respondent-Appellant/Cross-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
13 H.R. Quintero, District Judge

14 Lopez & Associates, P.C.
15 William Perkins
16 Silver City, NM

17 for Appellee/Cross-Appellant

18   Jim Foy & Associates
19   Jim Foy
20   Norman R. Wheeler
21   Silver City, NM

22 for Appellant/Cross-Appellee

23                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2        Respondent Leslie Earl Imboden (Husband) appeals, and Petitioner Donna

 3 Karen Imboden (Wife) cross-appeals, from the district court’s division of the parties’

 4 marital property. Our notice proposed to reverse and remand for the district court to

 5 consider the merits of Husband’s motion to reconsider.            Wife filed a timely

 6 memorandum in opposition. We are not persuaded by Wife’s arguments and,

 7 therefore, reverse and remand.

 8        On March 16, 2009, the district court entered its judgment and order regarding

 9 disposition of marital property. [RP 137] On April 15, 2009, Husband filed a “motion

10 to reconsider and stay.” [RP 154] On June 10, 2009, the district court entered an

11 order denying the motion to reconsider (order). [RP 193] The order sets forth the

12 district court’s determination that Husband’s motion to reconsider was filed pursuant

13 to NMSA 1978, Section 39-1-1 (1917) and was deemed denied by operation of law

14 on May 16, 2009. [RP 193] However, the 2006 amendment to Rule 1-054.1 NMRA

15 superseded the portion of Section 39-1-1 that states that post-judgment motions filed

16 under that statute are automatically denied if not granted within thirty days of filing.

17 See Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15, 142

18 N.M. 527, 168 P.3d 99; see also Dickens v. Laurel Healthcare, LLC, 2009-NMCA-


                                              2
 1 122, ¶ 6, ___ N.M. ___, ___ P.3d ___ (No. 29,239, June 18, 2009) (viewing Redi-Mix

 2 as holding that when a post-judgment motion that challenges the district court’s

 3 determination of the parties’ rights is pending in the district court, the judgment or

 4 order entered by the court remains non-final). Because the “deemed denied” provision

 5 of Section 39-1-1 is not applicable, we decline to consider the merits of the parties’

 6 issues and instead reverse and remand with instructions for the district court to

 7 consider the merits of Husband’s motion to reconsider.

 8        In opposition to remand, Wife essentially asserts that this Court is over-reading

 9 Albuquerque Redi-Mix, Inc. In this respect, Wife argues that the Redi-Mix holding is

10 intended to address only the lifting of the automatic denial provision when post-

11 judgment motions are made pursuant to the Rules of Civil Procedure, such as the

12 motion to reconsider filed under Rule 1-059(E) NMRA as in Redi-Mix. [MIO 6]

13 According to Wife’s position, the ability to supersede the “deemed denied” provision

14 is limited to instances of motions made under the rules and when Section 39-1-1 is not

15 invoked. [MIO 6-7] Case law, however, does not support this view. See Grygorwicz

16 v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that, “if

17 a party makes a post-judgment motion directed at the final judgment pursuant to

18 Section 39-1-1, the time for filing an appeal does not begin to run until the district


                                              3
 1 court enters an express disposition on that motion”). Apart from case law, the rules

 2 themselves provide that Section 39-1-1 post-judgment motions are no longer subject

 3 to a “deemed denied” provision. See Rule 12-201(D) NMRA (stating that “[i]f a party

 4 timely files a motion pursuant to Section 39-1-1 . . . , the full time prescribed in this

 5 rule for the filing of the notice of appeal shall commence to run and be computed from

 6 the entry of an order expressly disposing of the motion”); Rule 1-054.1 (2006

 7 amendment as approved by Supreme Court Order 06-8300-17, effective August 21,

 8 2006, superseding the portion of Section 39-1-1 that stated that post-judgment

 9 motions were automatically denied if not granted within thirty days of filing).

10        Based on the foregoing discussion, we reverse and remand with instructions that

11 the district court consider the merits of Husband’s motion to reconsider.

12        IT IS SO ORDERED.



13                                                 _______________________________
14                                                 JAMES J. WECHSLER, Judge

15 WE CONCUR:



16 _______________________________
17 CYNTHIA A. FRY, Chief Judge


                                               4
1 _______________________________
2 MICHAEL E. VIGIL, Judge




                                    5
