Joyce NORRIS, formerly Joyce Saueressig, Petitioner-Appellee, and Cross Appellant, v. Joe Stanley SAUERESSIG, Respondent-Appellant, and Cross Appellee
No. 16204
Supreme Court of New Mexico
April 8, 1986
717 P.2d 52
II. Impartiality of Trial Judge at Sentencing Hearing.
The same judge who conducted defendant‘s trial conducted his sentencing hearing. At the sentencing heаring it was determined that this was defendant‘s second conviction for armed robbery. Defendant accordingly received an еighteen-year sentence on the armed robbery conviction, rather than nine years as would have been imposed for a first offense armed robbery conviction. See
This argument is without merit. Defendant‘s prior conviction was established by his own аdmission at trial and by uncontroverted fingerprint and record evidence at the sentencing hearing. Neither the trial judge, nor any judgе who might have re-placed him, was free to disregard this evidence. See State v. Doe, 93 N.M. 481, 601 P.2d 451 (Ct.App.1979). The judge‘s failure to recuse therefore was not error.
III. Other Issues.
Appellate counsel for defendant lists, at dеfendant‘s request, seven additional issues for review. See State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1957). We have examined these issues and find them to be without merit.
The judgment and sentence of the trial court are affirmed.
IT IS SO ORDERED.
STOWERS, J., concurs.
WALTERS, J., concurs in result.
Susan M. Conway, Robert D. Levy, Conway & Levy, P.A., Albuquerque, for petitioner-appellee, and cross-appellant.
Ann Steinmetz, Albuquerque, for respondent-appellant, and сross-appellee.
OPINION
FEDERICI, Justice.
This case is before us pursuant to a writ of certiorari granted to review the opinion of the Cоurt of Appeals.
The facts, law and result reached by the Court of Appeals are set forth in its opinion of Decembеr 12, 1985, 104 N.M. 85, 717 P.2d 61, and we direct that the Court of Appeals opinion be published with this opinion.
In its opinion, the Court of Appeals held that thе rule established in LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969) has been reinstated. We agree with the Court of Appeals but we write this opinion to clarify the application of LeClert.
In 1982, Congress enacted the Uniformed Services Former Spousеs’ Protection Act.
The Court of Appeals concluded that LeClert, which was decided in 1969, does not apply to this case because petitioner‘s decree of dissolution of marriage was entered in 1965. This result is correct. The Court of Appeals further concluded that reinstating LeClert must have the effect of preserving the final judgments entered pursuant to the rule established in LeClert. This result is also correct.
We affirm the opinion of the Court of Appeals.
IT IS SO ORDERED.
RIORDAN, C.J., SOSA, Senior Justice, and STOWERS, J., concur.
WALTERS, J., dissents.
WALTERS, Justice, (dissenting).
I do not agree with the opinion of the Court of Appeals or this Court‘s clarification of it and must, therefore, respectfully dissent.
The underlying opinion holds that “in 1965, the military retirement benefits did not constitute a community asset, and, therefore, were not subject to division.” (104 N.M. at 86, 717 P.2d at 62.) Clearly, that is an incorrect statement. LeClert, to which the opinions of both courts refer, was indeed decided in 1969, just as was Otto v. Otto, 80 N.M. 331, 455 P.2d 642 (1969), but LeClert and Otto dеalt with military retirement benefits earned for periods of more than 20 and 30 years, respectively, before those cases were decided. Just because appellate decisions on the subject had not been written earlier, that fact сould not, did not, and does not change the character of community property in existence prior to the decisions. They merely declared the already existing classification of such property.
The majority states that the McCarty opinion “effectively overruled LeClert,” but that Walentowski then “reinstated ‘the law as it was under LeClert.‘” If that is so, it doesn‘t matter that the partiеs here were divorced in 1965 and LeClert was decided in 1969, because their 1965 Property Settlement Agreement specifically provided, and the trial court found, that if there was community property not disposed of by that Agreement, the parties would own such property as tenants in common—which, by definition, means undivided ownership and possession (1 Bouvier‘s Law Dictionary, 3d rev.), of which an owner may demand partition. The 1969 cases (LeClert and Otto) recognized that retirement benefits accruing prior to those decisions were community assets. The retirement benefit here, a recognized community asset, had not been divided in the 1965 Agreement. Our divorce statutеs declare how community property shall be divided; thus, how community property, by agreement held “in common” after divorce, may and should be converted to separate property of the parties.
The Uniformed Services Former Spouses’ Protection Act may properly be held to apply retroactively to judgments final after the McCarty decision of June 26, 1981, but that has nothing to do, in my mind, with the status or character of community property in 1965, nor with the Court‘s obligation to enforce the division of community property not disposed of at the time of divorce under the principles of community property law. LeClert, “reinstated” as good law by this Court, would mandate that “retirement pay which was earned during coverture [in LeClert, from 1949 to 1968] became property оf the community,” and thus divisible between husband and wife.
I would reverse the trial court‘s limitation of the wife‘s share of those benefits from the date of her claim and direct a division of all retirement benefits paid to the husband from the date he began to receive them.