{ "id": 5338119, "name": "Martha Lucille DUNNE, Plaintiff-Appellant, v. Edward DUNNE, Defendant-Appellee", "name_abbreviation": "Dunne v. Dunne", "decision_date": "1972-01-14", "docket_number": "No. 9290", "first_page": "377", "last_page": "379", "citations": [ { "type": "official", "cite": "83 N.M. 377" }, { "type": "parallel", "cite": "492 P.2d 994" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "329 F.2d 107", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 124652 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/f2d/329/0107-01" ] }, { "cite": "58 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587518 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0201-01" ] }, { "cite": "68 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718452 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0215-01" ] }, { "cite": "76 N. M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501205 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0194-01" ] }, { "cite": "62 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2713719 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0330-01" ] }, { "cite": "73 N.M. 405", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322286 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/73/0405-01" ] }, { "cite": "78 N.M. 181", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326397 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0181-01" ] }, { "cite": "60 N.M. 441", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590378 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/60/0441-01" ] }, { "cite": "37 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575406 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0454-01" ] }, { "cite": "71 N.M. 495", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346898 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0495-01" ] }, { "cite": "82 N.M. 316", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333976 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0316-01" ] } ], "analysis": { "cardinality": 488, "char_count": 7076, "ocr_confidence": 0.661, "pagerank": { "raw": 1.4205894322755862e-07, "percentile": 0.6489397644418652 }, "sha256": "8bab4ebb005680c838122bcaaebb0a12507eaae9d95ecde1537d35b9fc223d7b", "simhash": "1:094255a61d8cddb1", "word_count": 1210 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McMANUS and OMAN, JJ., concur." ], "parties": [ "Martha Lucille DUNNE, Plaintiff-Appellant, v. Edward DUNNE, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSTEPHENSON, Justice.\nPlaintiff-appellant (wife) appeals from certain actions of the trial court in this curious divorce case which had three additional counts sounding in tort.\nFollowing the entry of the decree, wife filed a many-splendored pleading captioned \u201cObjection To Adequacy Of Notice And Request For A Record And Request For Additional Attorney\u2019s Fee And Costs And Default Judgment.\u201d This motion, if it tru]y be a motion, \u201cprays,\u201d inter alia, for increased attorney\u2019s fees, allowance as costs of the expense of a transcript of a certain hearing, and judgment by default on the tort counts. The relief sought was denied and wife now seeks review.\nThe key question is whether or not the case was settled. Defendant-appellee (husband) says it was; that the judgment was entered accordingly; and that it was agreed that the tort counts would be dropped.' Wife says the case was not settled, or at least not in respect to the matters of which she now complains.\nThe record is deficient in that it fails to sustain the factual assertions of either party on the subject of the supposed settlement. As wife wends her way through her argument, she points to a setting here, a certificate of mailing there, a postmark somewhere, else, as substantiating some tangential recitation of facts. This is a system of logic or proof comparable to demonstrating that a fish was caught by a subsequent display of a hook. Husband simply recites, de hors the record, his assertions of settlement.\nThe acrimonious bickerings of the parties on the subject of the agreement, if any, seem to be more or less in balance, but the problems arising from the incomplete record are of the wife. It is the duty of the litigant seeking review to see that the record is completed for review of that which he wishes to present. State Ex Rel. State Highway Commission v. Sherman, 82 N.M. 316, 481 P.2d 104 (1971).\nWe will first consider the subject of attorney fees. The decree found that the parties had settled the \u201ccommunity property rights.\u201d In subsequent findings, it deals with specifics which one would suppose were based upon the agreement, including a finding that husband was to pay \u201creasonable attorneys fees.\u201d The decretal portion directs that husband was to pay \u201ctoward Plaintiff\u2019s attorneys fees\u201d a specified sum within a certain time. The parties endorsed their approval on the decree. Wife\u2019s attorney endorsed the decree \u201cobjected to in every respect.\u201d Husband\u2019s attorney did not endorse it, but does not attack it, doubtless because he prepared it..\nWife concedes discretion in the trial court, but says, or more precisely her attorney says, that the court apparently believed the amount of attorney\u2019s fees had been agreed to and that he had not so agreed.\nThe trial court\u2019s power regarding attorney\u2019s fees is grounded on \u00a7 22-7-6, N.M.S.A., 1953. The court\u2019s discretion is implicit in the statute, and has been recognized by this court. Moore v. Moore, 71 N.M. 495, 379 P.2d 784 (1963); Lord v. Lord, 37 N.M. 454, 24 P.2d 292 (1933).\nWife\u2019s attorney\u2019s concern about the trial court\u2019s possible misunderstanding that the amount had been agreed upon is not borne out by the record. The decree indicates that if there was an agreement concerning fees, it was that a reasonable amount would be paid, and the court then fixed the amount. No sensible distinction occurs to ns between reasonable fees grounded on the statute or reasonable fees based on an agreement. No distinction is suggested.\nFrom the record, we cannot tell whether wife\u2019s attorney agreed to an amount or not, and the assertions of counsel are factually irreconcilable. Whether the wife\u2019s attorney agreed to the amount or not is, however, of no interest to us. He overlooks whose lawsuit it was. It was the wife\u2019s as far as he was concerned, and wife approved the decree. Awards of attorney fees in divorce actions are to the wife, not the attorney. Lloyd v. Lloyd, 60 N.M. 441, 292 P.2d 121 (1956).\nNothing before us impels us, or even inclines us, to disturb the court\u2019s award. If wife\u2019s attorney was not adequately compensated, he is free to take the matter up with her. Lloyd v. Lloyd, supra.\nWife next complains that the court erred in failing to tax as costs in her favor the expense of a transcript of a hearing. Assuming, without deciding, that this expense was a cost, the trial court had discretion as to who should bear it. Rule 54(d) [\u00a7 21-1-1(54) (d), N.M.S.A., 1953], This discretion of the trial court is not to be tampered with absent an abuse. Hales v. Van Cleave, 78 N.M. 181, 429 P.2d 379 (Ct.App.1967); Farmers Gin Company v. Ward, 73 N.M. 405, 389 P.2d 9 (1964). See also Campbell v. Campbell, 62 N.M. 330, 310 P.2d 266 (1957) in which this court upheld trial court\u2019s discretion in directing parties to bear their own costs in a divorce action. Nothing before us would justify our saying that the trial court abused its discretion.\nWe finally consider the court\u2019s denial of the request for judgment by default on the tort counts. Wife asserts that well-pleaded allegations are admitted, and that she was entitled to judgment as a matter of law. Husband says that abandonment of the tort counts was part of the settlement. The court\u2019s decree and the findings therein do not deal with the tort counts.\nThe following observations and queries occur to us:\nA. Husband had \u201cappeared\u201d but there was no compliance by wife with the notice requirements of Rule 55(b) [\u00a7 21-1-1(55) (b), N.M.S.A., 1953],\nB. The damages sought were unliquidated, but no evidence was offered concerning damages. Rules 8(d), 55(b) and 55(e) [\u00a7\u00a7 21-1-1(8) (d), 21-1-1(55) (b) and 21-1-1(55) (e), N.M.S.A., 1953] ; 6 Moore\u2019s Federal Practice, Par. 55.07.\nC. Does not a trial court have a certain discretion as to whether default judgment should be entered, both generally (6 Moore\u2019s Federal Practice, Par. 55.05(2)) and in New Mexico (Wagner v. Hunton, 76 N. M. 194, 413 P.2d 474 (1966)) ?\nD. Can a wife sue a husband in tort? Rodgers v. Galindo, 68 N.M. 215, 360 P.2d 400 (1961); Romero v. Romero, 58 N.M. 201, 269 P.2d 748 (1954).\nE.The court merely denied a motion for' default on the tort counts. It did not' dismiss them. Was the court\u2019s order appealable? Supreme Court Rule 5(1), (2) [\u00a7 21-2-1(5) (1)', (2), N.M.S.A., 1953]; McNutt v. Cardox Corp., 329 F.2d 107 (6th Cir. 1964).\nIn any case, we see nothing which persuades us that the court erred in declining to enter judgment by default.\nOther propositions of law, both substantive and procedural, readily come to mind. From our failure to mention them, it should not be assumed we have overlooked them. Somewhere, the court must draw a line in performing counsel\u2019s function. Even now, no authority mentioned in this opinion was cited to us.\nThe trial court\u2019s actions are affirmed. It is so ordered.\nMcMANUS and OMAN, JJ., concur.", "type": "majority", "author": "STEPHENSON, Justice." } ], "attorneys": [ "Thomas D. Schall, Jr., Albuquerque, for appellant.", "Pat Chowning, Albuquerque, for appellee." ], "corrections": "", "head_matter": "492 P.2d 994\nMartha Lucille DUNNE, Plaintiff-Appellant, v. Edward DUNNE, Defendant-Appellee.\nNo. 9290.\nSupreme Court of New Mexico.\nJan. 14, 1972.\nThomas D. Schall, Jr., Albuquerque, for appellant.\nPat Chowning, Albuquerque, for appellee." }, "file_name": "0377-01", "first_page_order": 503, "last_page_order": 505 }