{ "id": 4248938, "name": "Shelley TRINOSKY, Petitioner-Appellant, v. Peter JOHNSTONE, as Personal Representative of the estate of Donald L. Trinosky, deceased, Respondent-Appellee", "name_abbreviation": "Trinosky v. Johnstone", "decision_date": "2011-03-31", "docket_number": "No. 27,129", "first_page": "605", "last_page": "612", "citations": [ { "type": "official", "cite": "149 N.M. 605" }, { "type": "parallel", "cite": "252 P.3d 829" }, { "type": "parallel", "cite": "2011-NMCA-045" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2010-NMCA-013", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4244980 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 53" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0625-01" ] }, { "cite": "114 F.3d 1531", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 405155 ], "weight": 4, "pin_cites": [ { "page": "1537" }, { "page": "1537" }, { "page": "1537" }, { "page": "1537-38", "parenthetical": "reasoning that a district court's failure to consider the applicable legal standard under the federal counterpart to Rule 1-041(A)(2) constitutes an abuse of discretion and may serve as a basis for remanding to the district court to apply the correct legal standard" } ], "opinion_index": 0, "case_paths": [ "/f3d/114/1531-01" ] }, { "cite": "413 F.3d 1121", "category": "reporters:federal", 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"cite": "17 N.M. 615", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 208913 ], "year": 1913, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nm/17/0615-01" ] }, { "cite": "1998-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827330 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0413-01" ] }, { "cite": "2009-NMCA-070", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243086 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 12-14, 17" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0643-01" ] }, { "cite": "2004-NMCA-091", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224608 ], "weight": 12, "pin_cites": [ { "page": "\u00b6\u00b6 9, 14" }, { "page": "\u00b6\u00b67, 12" }, { "page": "\u00b6 10" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0124-01" ] }, { "cite": 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"ocr_confidence": 0.683, "pagerank": { "raw": 8.154939842325209e-08, "percentile": 0.4746485219794668 }, "sha256": "ece385d8cdea62a921e0cadd4a505bab3b67ad167304368800fa5f48e3f67670", "simhash": "1:9b66a524e20b02e7", "word_count": 3865 }, "last_updated": "2023-07-14T18:48:34.747020+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and MICHAEL E. VIGIL, Judges." ], "parties": [ "Shelley TRINOSKY, Petitioner-Appellant, v. Peter JOHNSTONE, as Personal Representative of the estate of Donald L. Trinosky, deceased, Respondent-Appellee." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\n{1} This case raises the issue of whether NMSA 1978, Section 4(M-20(B) (1993) prohibits a district court from exercising its discretion in determining whether to grant a petitioner\u2019s motion to voluntarily dismiss a legal separation action pursuant to Rule 1-041(A)(2) NMRA following the death of a party to the action. Section 40-4-20(B) mandates that if a party to a pending legal separation action dies prior to entry of a final decree, the district court \u201cshall conclude\u201d certain proceedings associated with the action \u201cas if both parties had survived.\u201d Rule 1-041(A)(2) allows the district court to exercise its discretion in determining whether to grant a petitioner\u2019s motion to voluntarily dismiss an action. We determine that a district court may grant a motion for a voluntary dismissal in a legal separation action and conclude the proceedings consistent with Section 40-4-20(B). As a result, we reverse the district court\u2019s denial of Shelley Trinosky\u2019s (Wife\u2019s) motion to voluntarily dismiss the legal separation action and remand to the district court to exercise its discretion in determining whether to grant Wife\u2019s motion to dismiss. Because we reverse on this ground, we do not reach the remaining issues raised by Wife on appeal.\nBACKGROUND\n{2} Wife filed a petition for a legal separation, division of property, spousal support, and reasonable costs and attorney fees on July 16, 2002. Donald L. Trinosky (Husband) subsequently filed a response to Wife\u2019s petition and requested discovery, but Husband did not raise any counter-claims. On April 3, 2003, while the legal separation action was pending and prior to entry of a final decree, Husband died.\n{3} Husband executed a Last Will and Testament prior to his death, and a separate probate action is pending that is not the subject of this appeal. On or about June 13, 2003, Husband\u2019s son, Kim S. Trinosky (Son), was originally appointed as the personal representative of Husband\u2019s estate. Peter H. Johnstone (Appellee) subsequently replaced Son as the personal representative of Husband\u2019s estate.\n{4} On July 19, 2004, Wife filed a motion to voluntarily dismiss the legal separation action pursuant to Rule 1-041(A)(2). Wife alleged that prior to Husband\u2019s death, the parties held themselves out as husband and wife, Wife provided care to Husband until his death, and that they anticipated a reconciliation. Wife further argued that dismissal of the action would be just and proper, would serve the interests of judicial economy, and would save the parties substantial litigation costs. Additionally, Wife contended that since Husband had asserted no counterclaims, continuation of the legal separation action would serve no purpose but to deplete the assets of Husband\u2019s estate. In response, Son denied the majority of Wife\u2019s factual allegations and argued that \u201cdismissing the action ... would be contrary to the laws of the State of New Mexico which require the current proceeding ... to be concluded as if [Husband] survived.\u201d\n{5} At a hearing on September 23, 2004, Wife argued that she filed the petition for legal separation upon the advice of counsel as a result of other family tensions in order to preserve her interest in the marital estate. However, Wife testified that the parties never intended to \u201cdivorce,\u201d the parties considered themselves husband and wife throughout the entire marriage until Husband\u2019s death, and she did not wish to proceed with the legal separation action. Wife further argued that the district court had discretion to dismiss the action under Rule 1-041(A)(2) and that dismissal would not prejudice Husband, Wife contended that she was not asking the district court to abate the proceedings in violation of Section 40-4-20(B), but that as part of the continuing litigation, Wife was moving to voluntarily dismiss the petition as if Husband were still alive.\n{6} In response, Son argued that Section 40-4-20(B) mandated the conclusion of the proceedings and that the district court had no discretion to grant dismissal of the action under Rule 1-041(A)(2). Son also disputed Wife\u2019s allegation that the parties intended to reconcile.\n{7} Although the district court briefly questioned the parties regarding whether dismissal would prejudice Husband, the district court ultimately denied the motion to dismiss on grounds that Section 40-4-20(B) controlled and mandated continuation of the proceedings.\n{8} At a subsequent hearing, the district court considered whether to grant an interlocutory appeal regarding the potential conflict between Section 40-4-20(B) and Rule 1-041(A)(2). Ultimately, the district court issued a memorandum order explaining its denial of Wife\u2019s motion to dismiss and determining that the proceedings would continue to trial. The district court recognized that the use of the term \u201cshall\u201d in Section 40-4-20(B) conveyed an express duty on the district court and ultimately concluded that the court \u201cmust proceed pursuant to ... Section 40-4-20(B) to finalize the division of the community property pursuant to the requested legal separation.\u201d\n{9} Following a trial on the merits, the district court ultimately entered a decree granting a legal separation, awarding spousal support, dividing community property, and awarding attorney fees on August 30, 2006. The court stayed execution of the judgment pending this appeal. Wife subsequently raised seven issues on appeal, including whether the district court abused its discretion by denying her motion for voluntary dismissal pursuant to Rule 1-041(A)(2).\nDISCUSSION\n{10} Wife argues that the district court abused its discretion in denying her motion to voluntarily dismiss this action pursuant to Rule 1 \u2014 041(A)(2). Specifically, Wife contends that the court erred by interpreting Section 40-4-20(B) to \u201coverride\u201d Rule 1-041(A)(2) and mandate the continuance of the proceedings. Wife further contends that the district court failed to determine whether dismissal of the action would adversely affect the rights of the opposing party pursuant to Rule 1-041(A)(2), and that absent such a determination, the district court abused its discretion by denying the motion to dismiss.\nStatutory Interpretation of Section 40-4-20(B)\n{11} We first determine whether Section 40^4-20(B) precludes voluntary dismissal under Rule 1-041(A)(2) as a means of concluding the proceedings associated with a legal separation action after the death of one of the parties. \u201cThe meaning of language used in a statute is a question of law that we review de novo.\u201d United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030, \u00b6 7, 148 N.M. 426, 237 P.3d 728 (internal quotation marks and citation omitted). \u201cIn construing a statute, our charge is to determine and give effect to the Legislature\u2019s intent.\u201d Marbob Energy Corp. v. N.M. Oil Conservation Comm\u2019n, 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135. Pursuant to the Uniform Statute and Rule Construction Act, \u201c[t]he text of a statute or rule is the primary, essential source of its meaning.\u201d NMSA 1978, \u00a7 12-2A-19 (1997). As a result, we first examine \u201cthe plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different [meaning] was intended.\u201d N.M. Indus. Energy Consumers v. N.M. Pub. Reg. Comm\u2019n, 2007-NMSC-053, \u00b6 20, 142 N.M. 533, 168 P.3d 105. \u201c[W]hen a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.\u201d Truong v. Allstate Ins. Co., 2010-NMSC-009, \u00b6 37, 147 N.M. 583, 227 P.3d 73 (internal quotation marks and citation omitted). \u201cOnly if an ambiguity exists will we proceed further in our statutory construction analysis.\u201d Marbob Energy Corp., 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135.\n{12} Section 40-4-20(B) provides in pertinent part that, upon the filing and service of a petition for separation, division of property or debt, or spousal support,\nif a party to the action dies during the pendency of the action, but prior to the entry of a decree granting ... separation, ... the proceedings for the determination, division and distribution of marital property rights and debts, distribution of spousal or child support or determination of paternity shall not abate. The court shall conclude the proceedings as if both parties had survived.\n{13} \u201cBy enacting Section 4(M-20(B), the Legislature departed from the common law rule that a pending divorce action abates when a party to the action dies before the entry of a final divorce decree.\u201d Oldham v. Oldham, 2011-NMSC-007, \u00b6 13, 149 N.M. 215, 247 P.3d 736. Under the common law rule of abatement, if a party to a dissolution action died before the entry of a final decree, the proceedings terminated as a matter of law and the court was divested of jurisdiction over the matter, including jurisdiction over any property rights. Karpien v. Karpien, 2009-NMCA-043, \u00b6 6, 146 N.M. 188, 207 P.3d 1165. Similarly, under the common law rule of abatement, if a party to a legal separation action died prior to entry of a final decree, the court was divested of jurisdiction over the matter. See, e.g., Cregan v. Clark, 658 S.W.2d 924, 927 (Mo.App.1983) (reasoning that either an action for dissolution of marriage or legal separation abates upon the death of one of the parties prior to final judgment).\n{14} Section 40-4-20(B) departs from the common law rule of abatement by expressly providing that \u201cif a party to [a divorce or separation] action dies during the pendency of the action, ... the proceedings for the determination, division and distribution of marital property rights and debt, distribution of espousal or child support or determination of paternity shall not abate.\u201d (Emphasis added.) \u201cIf\u2019 is defined as \u201c[i]n the event that[,]\u201d \u201c[g]rant[ed] that[,]\u201d or \u201c[o]n the condition that[.]\u201d American Heritage Dictionary of the English Language 872 (4th ed. 2000). Moreover, as defined by the Uniform Statute and Rule Construction Act, the words \u201c \u2018shall not\u2019 prohibit the exercise of a power, authority, privilege or right.\u201d NMSA 1978, \u00a7 12-2A-4(C) (1997). Finally, \u201cabatement\u201d is defined as (1) \u201c[t]he act of eliminating or nullifying\u201d and (2) \u201c[t]he suspension or defeat of a pending action for a reason unrelated to the merits of the claim.\u201d Black\u2019s Law Dictionary 3 (9th ed. 2009).\n{15} We interpret Section 40-4-20(B) to prohibit the abatement of the specific types of proceedings listed in Subsection (B) as a result of the death of one of the parties. In contrast to the common law rule, Section 40-4-20(B) provides that the death of one of the parties to a divorce or separation action does not divest a domestic relations court of jurisdiction over proceedings for the division of marital property, distribution of support, and determination of paternity. See Oldham, 2011-NMSC-007, \u00b6 25, 149 N.M. 215, 247 P.3d 736 (reasoning that the domestic relations court retains jurisdiction to conclude the three specific tasks of dividing and distributing marital property and debts, distributing espousal and child support, and determining paternity after the death of one of the parties).\n{16} Section 4(M-20(B) further provides that the domestic relations court \u201cshall conclude the proceedings as if both parties had survived.\u201d (Emphasis added.) The use of the word \u201cshall\u201d mandates conclusion of the proceedings for the division of property, distribution of support, and determination of paternity. See Oldham, 2011-NMSC-007, \u00b6 32, 149 N.M. 215, 247 P.3d 736 (determining that \u201c[c]oncluding a Section 40-4-20(B) property division is mandatory\u201d); see also Marbob Energy Corp., 2009-NMSC-013, \u00b6 22, 146 N.M. 24, 206 P.3d 135 (explaining that the word \u201c \u2018shall\u2019 indicates that [a] provision is mandatory\u201d).\n{17} If both parties had survived, a conclusion of the proceedings associated with the legal separation action could have been effected through a variety of different means, including but not limited to a judgment following a trial on the merits, a decree incorporating a marital settlement agreement, or a voluntary dismissal of the action. See, e.g., Karpien, 2009-NMCA-043, \u00b6\u00b6 1-3, 146 N.M. 188, 207 P.3d 1165 (reviewing a judgment regarding the division of property following a trial on the merits in a divorce action); Edens v. Edens, 2005-NMCA-033, \u00b6\u00b6 1, 14, 137 N.M. 207, 109 P.3d 295 (reviewing a judgment reached through the district court\u2019s incorporation of a marital settlement agreement into a final divorce decree); Becenti v. Becenti, 2004-NMCA-091, \u00b6\u00b6 9, 14, 136 N.M. 124, 94 P.3d 867 (reasoning that a petitioner\u2019s voluntary dismissal of a divorce action terminates a court\u2019s jurisdiction over the matter and precludes reinstatement of the action).\n{18} Furthermore, voluntary dismissal under Rule 1-041(A)(2) would have been one permissible means of concluding the proceedings associated with the legal separation action if both parties had survived. Pursuant to Rule 1-041 (A)(2), a district court may in its discretion grant a petitioner\u2019s motion to voluntarily dismiss an action after an answer or other responsive pleading has been filed. See Rule 1-041(A)(2) (providing that after an answer or other responsive pleading has been filed, a district court may on motion of the plaintiff order voluntary dismissal \u201cupon such terms and conditions as the court deems proper\u201d); see also Rule 1-041(F) (stating that Rule 1-041 is applicable to all civil cases filed in district court with several inapplicable exceptions); see also Pacheco v. Cohen, 2009-NMCA-070, \u00b6\u00b6 12-14, 17, 146 N.M. 643, 213 P.3d 793 (reasoning that the district court had the discretion to grant a voluntary motion to dismiss a civil action under Rule 1-041(A)(2) and subsequently reinstate that action pursuant to the conditions for the voluntary dismissal).\n{19} Section 40-4-20(B) does not limit any of the subsequent means of con-eluding the proceedings beyond its prohibition of abatement of the proceedings based upon the death of one of the parties. We \u201cwill not read into a statute or ordinance language which is not there, particularly if it makes sense as written.\u201d High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, \u00b6 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks and citation omitted). As a result, we determine that Section 40-4-20(B) does not preclude voluntary dismissal under Rule 1-041(A)(2) as a means of concluding the proceedings associated with a legal separation action after the death of one of the parties.\nDenial of Motion for Voluntary Dismissal Under Rule 1-041(A)(2)\n{20} We next examine whether the district court abused its discretion in denying Wife\u2019s motion for voluntary dismissal pursuant to Rule 1-041(A)(2). Wife argues that absent sufficient evidence or findings that dismissal would prejudice the opposing party, the district court abused its discretion by denying her motion to dismiss. Wife further contends that the district court abused its discretion by misapprehending Section 40-4-20(B) to mandate continuance of the proceedings and \u201coverride\u201d Rule 1-041(A)(2).\n{21} Rule 1-041(A)(2) provides that after service of an answer or other responsive pleading by the opposing party, \u201can action shall not be dismissed on motion of the plaintiff except upon order of the court and upon such terms and conditions as the court deems proper.\u201d If, however, a counterclaim, cross-claim, or third-party claim was filed prior to service of the motion to dismiss, \u201cthe action shall not be dismissed against the party\u2019s objection unless the counterclaim, cross-claim or third-party claim can remain pending for independent adjudication by the court.\u201d Id. Because no counterclaim, cross-claim, or third-party claim was filed in this case, the portion of the rule relating to objections of another party is inapplicable.\n{22} Initially, we note the limited precedent interpreting Rule 1-041(A)(2). Wife relies on Andrews v. French, 17 N.M. 615, 615, 131 P. 996, 996 (1913), which states the common law rule that \u201c[a] party usually has the right to discontinue any action or proceeding instituted by him, unless substantial rights of other parties have accrued and injustice will be done them by permitting the discontinuance.\u201d In contrast, Husband relies on Becenti, 2004-NMCA-091, \u00b6\u00b67, 12, 136 N.M. 124, 94 P.3d 867, which interprets Rule 1-041(A)(1)(a) as a bright-line rule that allows a plaintiff to unilaterally dismiss a case before an answer or responsive pleading has been filed. In light of our limited precedent specifically interpreting Rule 1-041(A)(2), we look to interpretation of the federal counterpart of the rule for guidance. See Becenti, 2004-NMCA-091, \u00b6 10, 136 N.M. 124, 94 P.3d 867 (looking to federal law for guidance in interpreting Rule l-041(A)(l)(a) after recognizing that this Court may look to federal law for guidance in interpreting rules of civil procedure identical to their federal counterparts); see also Ped.R.Civ.P. 41(a)(2) (providing that after service of an answer or motion for summary judgment, \u201can action may be dismissed at the plaintiffs request only by court order, on terms that the court [deems] proper\u201d).\n{23} We review the district court\u2019s denial of Wife\u2019s motion to dismiss for an abuse of discretion. See Rule 1-041 (A)(2) (granting the district court discretion to order a dismissal of an action upon motion of the plaintiff \u201cupon such terms and conditions as the court deems proper\u201d); see also County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1047 (10th Cir.2002) (stating that federal courts \u201creview a district court\u2019s grant of a Rule 41(a)(2) motion for abuse of discretion\u201d). \u201cAn abuse of discretion will be found when the [district] court\u2019s decision is clearly untenable or contrary to logic and reason.\u201d Pacheco, 2009-NMCA-070, \u00b6 13, 146 N.M. 643, 213 P.3d 793 (alteration in original) (internal quotation marks and citation omitted). \u201cA [district] court abuses its discretion when it exercises its discretion based on a misunderstanding of the law.\u201d Chavez v. Lovelace Sandia Health System, Inc., 2008-NMCA-104, \u00b6 25, 144 N.M. 578, 189 P.3d 711. Consequently, \u201c[e]ven when we review for an abuse of discretion, our review of the application of the law to the facts is conducted de novo. Accordingly, we may characterize as an abuse of discretion a discretionary decision that is premised on a misapprehension of the law.\u201d Id. (internal quotation marks and citation omitted). Finally, we apply a de novo standard of review to the extent that we are required to interpret the rules of civil procedure. Becenti, 2004-NMCA-091, \u00b6 6, 136 N.M. 124, 94 P.3d 867.\n{24} The federal counterpart to Rule 1-041(A)(2) \u201cis designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.\u201d Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir.2005) (internal quotation marks and citation omitted). \u201cAbsent legal prejudice to the defendant, the district court normally should grant such a dismissal.\u201d Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) (internal quotation marks and citation omitted).\n{25} Legal \u201c[prejudice does not arise simply because a second action has been or may be filed against the defendant.\u201d Brown, 413 F.3d at 1124. Instead, \u201cprejudice is a function of other, practical factors including: [T]he opposing party\u2019s effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation.\u201d Id. (internal quotation marks and citation omitted). \u201cThese factors are neither exhaustive nor conelusive[,]\u201d and the district \u201ccourt should be sensitive to other considerations unique to the circumstances of each case.\u201d Id. Moreover, \u201c[ejach factor need not be resolved in favor of the moving party for dismissal to be appropriate, nor need each factor be resolved in favor of the opposing party for denial of the motion to be proper.\u201d Ohlander, 114 F.3d at 1537. Rather, \u201c[i]n reaching its conclusion, [t]he district court should endeavor to insure substantial justice is accorded to both parties, and therefore the court must consider the equities not only facing the defendant, but also those facing the plaintiff.\u201d County of Santa Fe, 311 F.3d at 1048 (second alteration in original) (internal quotation marks and citation omitted). Finally, we note that \u201cthe important factors in determining legal prejudice are those involving the parties, not the court\u2019s time or effort spent on the case.\u201d Ohlander, 114 F.3d at 1537.\n{26} Here, it is unclear whether the district court exercised its discretion to determine whether dismissal would prejudice Husband and to consider the equities facing both parties. In response to Wife\u2019s argument that dismissal would not prejudice Husband and that no evidence of prejudice to Husband had been presented, the district court briefly questioned the parties regarding whether dismissal would prejudice Husband. However, Son argued that the district court had no discretion to determine whether to grant Wife\u2019s motion to dismiss because Section 40-4-20(B) mandated continuance of the proceedings. Moreover, neither the district court\u2019s verbal nor written findings and conclusions include any determination regarding whether dismissal would prejudice Husband or how granting or denying dismissal would affect the equities facing both parties. Instead, the district court\u2019s verbal and written findings indicate that the district court ultimately denied the motion to dismiss on grounds that Section 40-4-20(B) controlled and mandated that the court proceed to trial in order to finalize division of the community property.\n{27} Based on the record, it appears that the district court misapprehended Section 40-4-20(B) to prohibit the court from exercising any discretion in considering whether to grant Wife\u2019s motion for voluntary dismissal under Rule 1-041(A)(2). As a result, we reverse and remand to the district court to consider the above-listed factors and exercise its discretion in determining whether granting Wife\u2019s motion for voluntary dismissal would prejudice Husband. See Ohlander, 114 F.3d at 1537-38 (reasoning that a district court\u2019s failure to consider the applicable legal standard under the federal counterpart to Rule 1-041(A)(2) constitutes an abuse of discretion and may serve as a basis for remanding to the district court to apply the correct legal standard); see also Gilmore v. Gilmore, 2010-NMCA-013, \u00b6 53, 147 N.M. 625, 227 P.3d 115 (remanding to the district court to reconsider its method of calculating a wife\u2019s interest in a husband\u2019s retirement benefits where the district court felt bound by what it believed was a statutory mandate and did not appear to exercise its discretion)\u2019. Additionally, the district court should take into consideration the unique circumstances of this case, including recent guidance in Oldham regarding the interrelationship between domestic relations proceedings that continue under Section 40-4-20(B) and Husband\u2019s probate proceedings following his death. See Oldham, 2011-NMSC-007, \u00b6\u00b6 12-30, 149 N.M. 215, 247 P.3d 736. Finally, the district court should endeavor to accord substantial justice to both parties, considering the equities not only facing Husband, but also those facing Wife. See County of Santa Fe, 311 F.3d at 1048.\nCONCLUSION\n{28} For the foregoing reasons, we reverse the district court\u2019s denial of Wife\u2019s motion for voluntary dismissal pursuant to Rule 1-041(A)(2) and remand to the district court for further proceedings consistent with this opinion.\n{29} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and MICHAEL E. VIGIL, Judges.", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Kennedy & Han, P.C., Paul J. Kennedy, Darin M. Foster, Albuquerque, NM, for Appellant.", "Law Office of Peter H. Johnstone, P.C., Peter H. Johnstone, Albuquerque, NM, for Appellee." ], "corrections": "", "head_matter": "2011-NMCA-045\n252 P.3d 829\nShelley TRINOSKY, Petitioner-Appellant, v. Peter JOHNSTONE, as Personal Representative of the estate of Donald L. Trinosky, deceased, Respondent-Appellee.\nNo. 27,129.\nCourt of Appeals of New Mexico.\nMarch 31, 2011.\nKennedy & Han, P.C., Paul J. Kennedy, Darin M. Foster, Albuquerque, NM, for Appellant.\nLaw Office of Peter H. Johnstone, P.C., Peter H. Johnstone, Albuquerque, NM, for Appellee." }, "file_name": "0605-01", "first_page_order": 631, "last_page_order": 638 }