September 11, 2009 – Dustin Oldham v. Glenda Oldham, No. 28,493

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: September 11, 2009
NO. 28,493
DUSTIN OLDHAM,

Petitioner Appellant,
V.
GLENDA OLDHAM,

Respondent- Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District J udge

Geer, Wissel & Levy P. A.
Maria Garcia Geer

Robert D. Levy
Albuquerque, NM

for Appellant

Luebben, Johnson & Bamhouse LLP
Samuel D. Hough
Karl E. Johnson

Kelli J. Keegan
Los Ranchos de Albuquerque, NM

for Appellee

OPINION
GARCIA, Judge.
{1} 	Dustin Oldham (Son) appeals from the final order appointing his mother,
Glenda Oldham (Wife), as personal representative of the estate of his father, David
Oldham (Husband). 	At the time of Husband’s death, Husband and Wife were
involved in ongoing divorce proceedings. Prior to the divorce proceedings, Husband
had designated Wife as his named personal representative and the beneficiary of his
estate. NMSA 1978, Section 40-4-20(B) (1993) provides that when one party to a
pending divorce proceeding dies prior to the entry of a final decree, the proceedings
are to continue to conclusion as if both parties had survived. As a result, a personal
representative must be substituted to represent the interests of Husband’s estate and
the divorce proceedings are to continue.
{2} 	In this case, we must determine whether the district court erred by granting
Wife’s motion for partial summary judgment and by appointing Wife as personal
representative of Husband’s estate. 	In light of the divorce proceedings instituted
before Husband’s death, we hold that an inherent conflict of interest was created when
the district court appointed Wife to represent Husband’s estate against herself in the
pending divorce proceedings. 	Accordingly, we reverse and remand for the
appointment of someone other than Wife as a substitute personal representative or

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administrator to complete the pending divorce proceedings pursuant to Section 40-
4-20(B) before continuing the probate proceedings. We further reverse the summary
judgment determination in favor of Wife regarding the controlling effect of Husband’s
will and trust (the Will and Trust) and remand for further proceedings.
BACKGROUND
{3} 	Husband and Wife were married for twenty-three years and had one child
together. In 2003, Husband was diagnosed with brain cancer. In early 2007, Husband
became upset regarding his marital relationship and expressed his desire to initiate
divorce proceedings against Wife. Husband then signed a letter of acknowledgment
stating his desire to have Son, acting as attorney-in-fact, assist him in initiating
divorce proceedings against Wife. On February 7, 2007, Husband filed a petition for
divorce. 	Shortly thereafter, Wife filed a motion to dismiss Husband’s petition for
dissolution of marriage stating that Husband lacked the competency to file for divorce.
Husband died in May 2007 before any rulings were issued in the pending divorce
proceedings.
{4} 	In the probate proceeding following Husband’s death, Son filed an application
for informal appointment as personal representative of Husband’s estate. 	Wife
subsequently 	filed 	a 	counter 	application 	for 	formal 	appointment 	as 	personal
representative. She also filed a joint motion for summary judgment and motion to

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dismiss the petition for dissolution of marriage. In her motions, Wife asserted that the
district court was required to appoint her as personal representative to administer
Husband’s estate pursuant to Husband’s Will and Trust. 	Son then filed a counter
motion for summary judgment requesting that the district court appoint him, as a
matter of law, as personal representative to complete the divorce proceedings pursuant
to Section 40-4-20(B). 	The district court issued an order that appointed Wife as
personal representative of Husband’s estate, admitted the Will to probate, validated
the Trust, and found that Section 40-4-20(B) did not revoke, invalidate, or affect the
Will and Trust in the probate proceedings. This appeal followed.
DISCUSSION
Appointment of Personal Representative
{5} 	We must address whether Wife was properly appointed to serve as the personal
representative of Husband’s estate. 	We review the district court’s statutory
interpretation and conclusions of law de novo. 	See Bell v. Estate of Bell, 2008-
NMCA-045, ¶ 11, 143 N.M. 716, 181 P.3d 708 (reviewing statutory interpretation de
novo); Alverson v. Harris, 1997-NMCA-024, ¶ 6, 123 N.M. 153, 935 P.2d 1165 (filed
1996) (reviewing de novo whether the district court correctly applied the law to the
facts).
{6} 	We look to our recent decision in Karpien for guidance regarding how to

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proceed under Section 40-4-20(B) when one party to a pending divorce proceeding
dies prior to the entry of a final decree. Karpien v. Karpien, 2009-NMCA-043, 146
N.M. 188, 207 P.3d 1165. In Karpien, the husband and wife were involved in divorce
proceedings when the wife died intestate. 	Id. ¶ 1. Following the wife’s death, the
district court appointed the wife’s parents as personal representatives of her estate.
Id. ¶ 2. On appeal, the husband asserted that when one party to a pending divorce
proceeding dies, the Uniform Probate Code (Probate Code) prevails over Section 40-
4-20(B), effectively abating the divorce proceedings so that the surviving spouse is
not prevented from receiving an inheritance. Karpien, 2009-NMCA-043, ¶¶ 8, 10-11.
Relying on Section 40-4-20(B), we rejected this argument. Karpien, 2009-NMCA-
043, ¶¶ 8-11. Section 40-4-20(B) provides:
[I]f a party to the action dies during the pendency of the action, but prior
to the entry of a [final] decree granting dissolution of marriage,
separation, annulment or determination of paternity, the proceedings for
the determination, division and distribution of marital property rights and
debts . . . shall not abate. The court shall conclude the proceedings as
if both parties had survived.
(Emphasis added.) Therefore, we held that in order to give effect to both Section 40-
4-20(B) and the Probate Code, the divorce proceedings must continue until conclusion
before the district court could address any limitations imposed by the Probate Code.
Karpien, 2009-NMCA-043, ¶¶ 8-11.
{7} 	In the present case, in order for the divorce proceedings to continue in

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accordance with Section 40-4-20(B), a proper personal representative must be
appointed to represent Husband’s estate in the continuation of the proceedings.
NMSA 1978, § 45-3-703(E) (1975) (“[A] personal representative . . . has the same
standing to sue and be sued . . . as his decedent had immediately prior to death.”);
Rule 1-025(A) NMRA (“If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties.”). It is clear there is an inherent
conflict of interest in having Wife serve as personal representative of Husband’s
estate. As personal representative, Wife would be obligated to represent Husband,
who is the opposing party in their divorce proceedings. 	Wife cannot adequately
represent the adverse interests of Husband while contemporaneously protecting her
own interests. 	Moreover, Wife’s repeated efforts to dismiss the pending divorce
proceedings filed by Husband exemplify the inherent conflict in this case. To ignore
this inherent conflict would result in an absurdity. Therefore, the district court erred
by appointing Wife as personal representative of Husband’s estate since the pending
divorce proceedings must continue.
{8} 	Wife counters that regardless of the pending divorce proceedings, the district
court was correct in appointing her as personal representative of Husband’s estate
pursuant to NMSA 1978, Section 45-3-203(A)(1) (1975). Section 45-3-203(A)(1)
provides that “a person nominated by a power conferred in a will” has priority for

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appointment as personal representative. Wife contends that the Will was not revoked
when Husband filed the petition for divorce and thus the district court was required,
as a matter of law, to appoint her as personal representative of Husband’s estate. It
is premature at this stage of the probate proceedings to address Wife’s argument
regarding the validity of Husband’s Will. 	The outcome of the pending divorce
proceedings will determine whether the Husband’s Will is valid and whether Wife is
eligible for appointment as personal representative of Husband’s estate. Once Wife’s
status as a surviving spouse has been determined in the divorce proceedings, the
district court will then apply the Probate Code to administer Husband’s estate. The
following summary judgment analysis will clarify this issue in more detail.
Summary Judgment
{9} 	We must address whether the district court erred when it granted Wife’s motion
for partial summary judgment, admitted the Will to probate, and validated the Trust.
Our recent decision in Karpien highlighted the interrelationship between Section 40-4-
20(B) and the Probate Code. We must now review these additional issues of statutory
construction de novo. See Karpien, 2009-NMCA-043, ¶ 3. This case is procedurally
unique from Karpien. Based on Wife’s motion to dismiss, it remains unclear whether
the divorce proceeding will ultimately continue to conclusion. Consistent with the
district court’s rulings, we will analyze the Probate Code issues under the assumption

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that the divorce proceedings will continue pursuant to Section 40-4-20(B).
{10} 	In Karpien, we evaluated the relationship between Section 40-4-20(B) and the
Probate Code, and we were able to harmonize the statutes so that each provision was
given effect. Karpien, 2009-NMCA-043, ¶¶ 4-12, 18 (“We have an obligation to read
and construe ‘statutes [that] appear to conflict, . . . if possible, to give effect to each.’”
(alterations in original) (quoting NMSA 1978, § 12-2A-10(A) (1997))). Section 40-4-
20(B) requires that “marital property rights and debts shall not abate and shall be
concluded as if both parties had survived.” Karpien, 2009-NMCA-043, ¶ 9 (internal
quotation marks omitted). As a result of the conclusion of the divorce proceedings
and the entry of a judgment or decree terminating all property rights pursuant to
Section 40-4-20(B), we determined that the husband was “precluded from being
considered a ‘surviving spouse’ for purposes of inheritance or allowances under
probate law.” 	Karpien, 2009-NMCA-043, ¶ 10 (construing the definition of a
surviving spouse under NMSA 1978, Section 45-2-802(B)(3) (1995)). As a result, the
husband was not a surviving spouse and could not inherit from the wife under the
Probate Code. This Court refused to “interpret the relevant [provisions of the Probate
Code] to effectively repeal the provisions of Section 40-4-20(B).” 	Karpien, 2009-
NMCA-043, ¶ 11.
{11} 	The present case requires us to expand upon the analysis set forth in Karpien

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and to address how previously executed governing instruments, specifically the Will
and Trust, are affected by the entry of a judgment or decree terminating all property
rights pursuant to Section 40-4-20(B). See N.M. Mining Ass’n v. N.M. Water Quality
Control Comm’n, 2007-NMCA-010, ¶ 12, 141 N.M. 41, 150 P.3d 991(filed 2006),
(stating that statutes must be read in pari materia so as to “facilitate[] the operation of
the statute[s] and the achievement of [their] goals”). In determining how to proceed
when a party to a pending divorce dies testate, we must analyze NMSA 1978, Section
45-2-804 (1995), which controls the effect of a divorce upon any previously executed
governing instruments. See § 45-2-804(A)(4) (defining a governing instrument as an
“instrument executed by the divorced individual before the divorce or annulment of
his marriage to his former spouse”). 	In addition, NMSA 1978, Section 45-2-508
(1993) recognizes that the change of circumstances set forth in Section 45-2-804 are
sufficient to revoke a will or any part of it. 	The district court accepted Wife’s
argument that only a final decree of divorce meets the required definition to revoke
a governing instrument under the Probate Code. 	The district court concluded that
because a judgment or decree dividing marital property and debts entered pursuant to
Section 40-4-20(B) did not amount to a “decree of divorce” it did not affect the
surviving party’s right to property pursuant to a probated will. We disagree with this
interpretation of the Probate Code. 	A judgment or decree terminating all property

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rights pursuant to Section 40-4-20(B) meets the definition of a divorce pursuant to
Section 45-2-804(A)(2) and is sufficient to revoke governing estate planning
instruments pursuant to Section 45-2-804(B)(1)(a).
{12} 	Divorce or annulment under Section 45-2-804(A)(2) is defined as “any divorce
or annulment or any dissolution or declaration of invalidity of a marriage that would
exclude the spouse as a surviving spouse [under] Section 45-2-802[.]” (Emphasis
added.) Pursuant to Section 45-2-802(B)(3), “an individual who was a party to a valid
proceeding concluded by an order purporting to terminate all marital property rights,
including a property division judgment entered pursuant to the provisions of Section
40-4-20” 	does not constitute a surviving spouse. 	(Emphasis added.) 	Thus, a
judgment or decree issued pursuant to Section 40-4-20(B) excludes the surviving
party from being defined as a surviving spouse under Section 45-2-802. See Karpien,
2009-NMCA-043, ¶ 10. The determination that a party is not a surviving spouse is
then applied pursuant to Section 45-2-804(A)(2) to define the term “divorce.” The
Section 40-4-20(B) proceeding ultimately determines whether the parties are defined
to be divorced under Section 45-2-804. Consequently, a surviving wife in a divorce
proceeding would be precluded from receiving any distribution as a surviving spouse
under the deceased husband’s governing instruments.
{13} 	Under Section 45-2-802(B)(3), Wife will be precluded as a surviving spouse

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if there is a judgment or decree entered that terminates all marital property rights
pursuant to Section 40-4-20(B). In addition, such a judgment or decree would serve
to revoke all governing instruments pursuant to Section 45-2-804(B)(1)(a). 	If
Husband’s Will and Trust are revoked, Wife will have no interest in Husband’s estate
as a surviving spouse. 	Based on the facts of this case, the district court erred by
prematurely adjudicating the validity of the Will and Trust and by prematurely
admitting the Will to probate prior to the completion of the pending divorce
proceedings.
{14} 	Wife presents other arguments as to why we should affirm the district court’s
decision to admit the Will to probate and to appoint her as personal representative of
Husband’s estate. Relying on our Supreme Court’s decision in Romine v. Romine,
100 N.M. 403, 671 P.2d 651 (1983), Wife argues that the pending divorce proceedings
should be dismissed because Husband’s death dissolved the marital relationship and
stripped the district court of jurisdiction to terminate the marriage. Wife’s reliance on
Romine is misplaced. In Romine, our Supreme Court held that “the [husband’s] death
dissolved the marital relationship, rendering the questions presented in [the wife’s]
suit moot[,] . . . leaving the court without jurisdiction.” Id. at 404, 671 P.2d at 652.
The determination in Romine was consistent with the recognized common-law rule
that death effectuated an abatement of the divorce proceedings. In 1993, “[t]he New

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Mexico Legislature . . . made a clear break from the majority of jurisdictions by
enacting Section 40-4-20(B).” Karpien, 2009-NMCA-043, ¶ 7. Therefore, Romine
has been superceded by the Legislature’s enactment of Section 40-4-20(B), which
now requires that the divorce proceedings continue to conclusion “as if both parties
had survived.” 	See Karpien, 2009-NMCA-043, ¶ 5. 	We further reject Wife’s
remaining arguments because they are contrary to the legislative intent that divorce
proceedings continue to their conclusion under Section 40-4-20(B) and contradict our
holding in Karpien.
CONCLUSION
{15} 	Based 	on 	the 	inherent 	conflict 	that 	exists 	if 	Wife 	serves 	as 	personal
representative of Husband’s estate, we reverse the appointment of Wife as personal
representative of Husband’s estate and remand to the district court to appoint a
substitute personal representative or other administrator to complete the pending
divorce proceedings. 	We further reverse the district court’s premature decision to
grant Wife’s motion for partial summary judgment, to admit the Will to probate, and
to validate the Trust.
{16} 	IT IS SO ORDERED.

TIMOTHY L. GARCIA, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

RODERICK T. KENNEDY, J udge

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