Sharna JAMES, Plaintiff-Appellant, v. Elsa BRUMLOP, M.D., Defendant-Appellee.
No. 3908
Court of Appeals of New Mexico
March 13, 1980
609 P.2d 1247
Writ of Certiorari Denied April 22, 1980.
It is irrelevant whether the entire amount, or only part, of the stepparent‘s income is сonsidered available to the child. Nolan, supra. State community property law cannot be used to subvert federal regulations. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979); accord, Nolan, supra.
To consider the income, or any fraction of it, of any person not under a legаl obligation to the child as automatically available for that child‘s support, contravenes explicit federal regulations concerning the AFDC program. The one half of Mr. Barela‘s income imputed to Mrs. Barеla under the Department‘s regulation can only be used in computing the AFDC eligibility of the stepchild when the money is shown to be actually available for current use on a regular basis for the child‘s support.
The case is reversed and remanded for a determination of the actual availability of one half of the community property income for the support of the AFDC applicant, and for proceedings consistent with this opinion.
IT IS SO ORDERED.
WOOD, C. J., and HENDLEY, J., concur.
William S. Dixon, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for defendant-appellee.
OPINION
ANDREWS, Judge.
At issue in this case is the extent to which trial courts in New Mexico are bound to follow the local rules which they have established pursuant to
Sharna James sued Elsa Brumlop alleging four counts of psychiatric malpractice. On March 8, 1978, Brumlop filed a motiоn for summary judgment and on March 27, 1978, she filed a brief and affidavits which, if uncontradicted, were sufficient to support the granting of the motion. One month later, Brumlop sent the trial court a form for an order granting the summary judgment with a cover letter explaining that James had not responded to the motion for summary judgment and that the time for her to do so under local Rule 131 had expired. The court signed the order and it was entered on May 2, 1978.
On May 4, 1978, James received аn unsigned copy of the order granting the summary judgment, and the next day she responded by filing with the court an affidavit which was sufficient to raise an issue of material fact as to at least some of the allegations of the comрlaint and a request for oral argument. Shortly afterward James filed another affidavit which tended to support the complaint.
According to an affidavit of James’ attorney, James first became aware of the fact that summary judgment had been granted on October 18, 1978. On the same day she filed a motion to reopen the judgment under
Brumlоp contends that this Court is without jurisdiction to hear this case because the judgment which is appealed from was entered more than thirty days before the notice of appeal. See Mabrey v. Mobil Oil Corporatiоn, 84 N.M. 272, 502 P.2d 297 (Ct.App.), cert. denied, 83 N.M. 740, 497 P.2d 742 (1972).
We must agree that it is beyond the power of this Court to review the granting of summary judgment; the failure to file a timely appeal deprives this Court of jurisdiction, and we have no discretion to overlook the defect. Mabrey, supra. Hоwever, the decision of the trial court not to reopen the judgment is a final and appealable judgment in its own right. Welden v. Grace Line, Inc., 404 F.2d 76 (2d Cir. 1968); Bros. Inc. v. W. E. Grace Mfg. Co., 320 F.2d 594 (5th Cir. 1963).
We treat this appeal as being from the denial of James’ motion under
The notice of appeal was not untimely as from the denial of the
An appeal from the denial of a
At issue is the trial court‘s application of its local rule number 13,2 which provides in part:
- Counsel shall submit, with all opposed motions, a concise statement of supporting points and a list of citations or authorities (and written brief, if desired). Where allegations of fact are relied upon, affidavits in support thereof shall be attached.
- Responding counsel shall submit a response and any documеntary evidence in support thereof within ten days after service of movant‘s motion and supporting papers.
Rule 13 establishes a timetable for consideration of motions such as the one filed by Brumlop, a regulation well within the powers granted to district courts under
Thus, ten days after the service of Brumlop‘s motion, plaintiff had nothing to respond to. The motion had not been presented in the manner required by the rule, and was therefore deficient to trigger plaintiff‘s adversary action under the rule. James cannot be faulted for failing tо file counteraffidavits within ten days after the motion alone was served upon her.
Despite the clear language of the rule, which specifies that supporting papers be attached to the motion, the trial сourt permitted Brumlop to submit affidavits nineteen days after the motion was filed. This action is clearly within the power of the court; it has inherent power to relax or modify its own rules where justice so requires, and such an action may be overturned only upon a showing of substantial prejudice to the complaining party. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970).
Brumlop now contends that the action of the trial court in accepting its tardy аffidavits reinstated the ten day deadline for response to the motion by James. This result would be manifestly unjust. It cannot be presumed that a relaxation of the requirements of Rule 13 with respect to Brumlop would not likewise be extended to James. Since the timetable established by Rule 13 had been disrupted by the court‘s
It is nоt the function of a reviewing court to substitute its own interpretation of a local rule for that of the court which promulgated the rule. Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653 (1967). However, the rule, once waived with respect to one party, should be considered waived as to both in the absence of any contrary indication by the court. The court having dispensed with the rule which also permitted it to rule on the motion without оral argument, James’ attorneys were justified in expecting the motion to be scheduled for oral argument until they were otherwise informed.
The due process clause of the constitutions of the United States and New Mexicо requires that no litigant suffer judgment without being given notice and the opportunity to be heard in the matter. See In Re Nelson, 78 N.M. 739, 437 P.2d 1008 (1968). In this case, we find that the trial court did not afford James a reasonable opportunity to be heard on Brumlop‘s motion for summary judgment, and therefore we reverse.
Accordingly, this case is remanded to district court with instructions to establish a new timetable for the submission of documents bearing on Brumlop‘s motion for summary judgment. At the expiration of thаt time, the motion should be decided on its merits, with oral argument being heard only if desired by the trial court.
IT IS SO ORDERED.
WALTERS, J., concurs.
SUTIN, J., dissenting.
SUTIN, Judge (dissenting).
I dissent.
On November 27, 1978, plaintiff‘s notice of appeal was filed. It reads:
Plaintiff, Sharna James, hereby gives notice of Appeal to the Court of Appeals of the State of New Mexico from the Summary Judgment of this Court dismissing the Defendant herein from this cause entered on May 2, 1978.
Plaintiff claims no notice was given that the judgment was entered May 2, 1978, and learned for the first time on October 18, 1978, that said judgment was entered on May 2, 1978. The district judge has no duty to give any notice and
On October 27, 1978, an order was entered that dеnied plaintiff‘s alternative motion for reconsideration of summary judgment or to vacate order granting summary judgment. No notice of appeal was filed with reference to this order. In fact, the notice of appeal filed, even if applicable, was not timely filed on November 27, 1978.