February 23, 2012 – The Estate of Peter Nauert v. Melissa Morgan-Nauert, Nos. 30,315 and 30,445

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _February 23, 2012

NO. 30,315

Consolidated with

NO. 30,445

THE ESTATE OF PETER NAUERT,
Petitioner Appellant,

V.

MELISSA MORGAN-NAUERT,
Respondent- Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge

Modrall, Sperling, Roehl, Hams & Sisk, P.A.
Marjone A. Rogers

Emil J. Kiehne

Albuquerque, NM

Walther Family Law

David L. Walther

Santa Fe, NM

for Appellant

Gerber & Bateman, P.A.
Paul D. Gerber

Julie S. Rivers

Santa Fe, NM

for Appellee

OPINION
WECHSLER, Judge.
{1} 	This appeal raises the issue of whether the Probate Code’s creditors’ claims
classification provision, NMSA 1978, § 45-3-805(A) (1995), applies to lump-sum
spousal support and attorney fee awards to a surviving spouse in a divorce proceeding
continued after the death of the other spouse under the domestic affairs anti-abatement
statute, NMSA 1978, § 40-4-20(B) (1993). The district court in the divorce action
(the Divorce Court) ordered that the decedent’s estate (the Estate) pay the spousal
support and attorney fee awards immediately, as a priority, before the district court in
the probate proceedings (the Probate Court) assumed jurisdiction over the assets to
address the Estate’s creditors’ claims. The Estate argues that (1) the Divorce Court
did not have jurisdiction to classify the spousal support and attorney fee awards as
Class One claims under Section 45-3-805(A); (2) the Divorce Court improperly
interpreted Section 40-4-20(B) as providing the Divorce Court with authority to order
the immediate payment of the awards before the Probate Court assumed jurisdiction
over the assets; (3) the Divorce Court’s order violated the Federal Insolvency Act, 31
U.S.C. § 3713(a)(1)(B) (1982); and (4) the Divorce Court’s order is barred by res
judicata because of the Probate Court’s earlier classification of the claims. We also
address Appellee’s argument that she is entitled to attorney fees because the Estate

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pursued this litigation in bad faith. 	We hold that the Divorce Court did not err by
ordering the immediate payment of the spousal support and attorney fee awards under
Section 40-4-20(B), the Divorce Court’s action did not violate the Federal Insolvency
Act, and the Estate failed to preserve the res judicata claim which, we nevertheless
conclude, fails. We also deny Appellee attorney fees. Accordingly, we affirm.
BACKGROUND
{2} 	Peter Nauert (Peter) began this case by filing a petition for dissolution of
marriage (the divorce action) from Melissa Morgan-Nauert (Melissa) in the Divorce
Court in March 2006. 	Peter died while the divorce action was pending, and the
Divorce Court continued the proceeding pursuant to the domestic relations anti-
abatement statute, Section 40-4-20(B), with Peter’s Estate as a substitute party. On
September 4, 2007, Michael Owens Jr., as personal representative of the Estate (the
personal representative), initiated an informal probate action in the Probate Court for
the administration of the Estate.
{3} 	On November 14, 2007, Melissa filed a motion for interim spousal support,
attorney fees, and costs in the Divorce Court. At a subsequent status conference held
before the Divorce Court ruled on the motion, the Estate argued that any spousal
support, attorney fees, or costs awarded would be Class Six claims in the probate
proceedings under the Probate Code’s creditors’ claims classification provision,

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Section 45-3-805(A), and informed the Divorce Court that the Estate was not certain
that there would be sufficient assets in the Estate to pay the Class One through Class
Five claims. 	The Divorce Court set a hearing, and the parties submitted briefs,
concerning the amount of spousal support and attorney fees to which Melissa was
entitled and the proper classification of the awards under the Probate Code. At the
hearing, the Divorce Court orally awarded Melissa monthly spousal support beginning
September 1, 2007 and attorney fees, and determined that the attorney fees were a
Class One claim under the Probate Code.
{4} 	Subsequently, on May 21, 2009, the Divorce Court entered an interlocutory
order awarding Melissa monthly spousal support and attorney fees beginning
September 1, 2007, ordering that both awards shall be treated as Class One claims
under the Probate Code, and requiring the Estate to pay the awards immediately. The
Estate did not pay the awards immediately and instead filed a petition for
extraordinary writ in the New Mexico Supreme Court, arguing that the Divorce
Court’s classification of the spousal support and attorney fee awards usurped the
authority of the Probate Court provided by the Probate Code. Our Supreme Court
denied the writ without comment on the merits.
{5} 	After denial of the petition for extraordinary writ, the Estate filed a petition in
the Probate Court for guidance on the classification of the spousal support and

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attorney fee awards under the Probate Code. The Estate also released funds to Melissa
in order to avoid being held in contempt for refusing to pay the spousal support and
attorney fee awards immediately as required by the May 21, 2009 order in the Divorce
Court. 	On August 13, 2009, the Probate Court acted on the Estate’s petition and
entered an order determining that the spousal support and attorney fee awards were
not Class One claims but rather Class Six claims under the Probate Code.
{6} 	Meanwhile, the Divorce Court held the property division hearing in the divorce
action on November 30 through December 4, 2009. Melissa continued to argue that
the Estate was required to pay the spousal support and attorney fees immediately, and
the Estate continued to argue that the awards were Class Six claims. 	The Divorce
Court entered its findings of fact and conclusions of law on February 1, 2010. 	It
required the Estate to pay immediately a lump-sum spousal support award based on
a monthly amount for the period of August 19, 2007 through August 19, 2010 and all
of Melissa’s attorney fees in the divorce action. 	The Divorce Court reasoned that
Section 40-4-20(B) required it to determine all financial issues relating to the divorce
action, including spousal support and attorney fees, before the “remaining assets can
be treated as the probate estate” and that the Divorce Court must “order distribution
and payments as a priority” before the remainder of the Estate’s assets pass to the
jurisdiction of the Probate Court. Therefore, although the Divorce Court’s findings

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of fact stated that the spousal support and attorney fee awards are Class One claims
under the Probate Code, the Divorce Court held that the awards are not part of the
probate estate and therefore out of the jurisdiction of the Probate Court by operation
of Section 40-4-20(B).
{7} 	The Divorce Court entered a final judgment on March 24, 2010. Melissa
subsequently filed a motion detailing the amount of attorney fees in the divorce action.
The Divorce Court awarded Melissa attorney fees on May 10, 2010, and the Estate
filed a timely appeal on May 12, 2010.
ARGUMENTS AND STANDARD OF REVIEW
{8} 	On appeal, the Estate argues that (1) the Divorce Court did not have jurisdiction
to classify the spousal support and attorney fee awards as Class One claims under the
Probate Code’s creditors’ claims classification provision, Section 45-3-805(A); (2) the
Divorce Court improperly interpreted Section 40-4-20(B) as providing the Divorce
Court with authority to order the immediate payment of the awards; (3) the Divorce
Court’s order violated the Federal Insolvency Act, 31 U.S.C. § 3713(a)(1)(B); and (4)
the Divorce Court’s order is barred by res judicata. 	The first three issues require
statutory construction, an issue of law that we review de novo. 	See N.M. Indus.
Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142
N.M. 533, 168 P.3d 105. The application of res judicata is also an issue of law that

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we review de novo. 	Chaara v. Lander, 2002-NMCA-053, ¶ 10, 132 N.M. 175, 45
P.3d 895.
DIVORCE COURT’S CLASSIFICATION OF CLAIMS
{9} 	The Estate first argues that the Divorce Court did not have jurisdiction to
classify the spousal support and attorney fee awards as Class One claims under the
Probate Code’s creditors’ claims classification scheme, Section 45-3-805(A). 	The
Estate argues that in enacting Section 45-3-805(A), the Legislature “committed” the
jurisdiction to classify claims “solely to district courts sitting in probate.”
{10} 	However, the record reveals that the Divorce Court did not order the immediate
payment of the spousal support and attorney fee awards based on classifying the
awards as Class One claims under the Probate Code. Initially, in awarding interim
support and attorney fees on May 21, 2009, the Divorce Court did classify the awards
as Class One claims and ordered the immediate payment of the awards. However, the
Estate did not pay either award and instead filed a petition for an extraordinary writ
in the New Mexico Supreme Court and, after the Supreme Court denied the writ, the
Estate filed a petition in the Probate Court for guidance on the classification of the
awards. Ultimately, in the Divorce Court’s findings of fact and conclusions of law,
the Divorce Court relied exclusively on Section 40-4-20(B) in concluding that it “must
determine all financial issues and order . . . payment of [spousal] support and

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attorney[] fees so that the remaining assets can be treated as the probate estate and the
Probate Court can then proceed.” In its final judgment, the Divorce Court echoed this
conclusion and ordered the immediate payment of the awards “before the assets are
returned to the jurisdiction of the Probate Court.” 	The Divorce Court essentially
determined that the assets awarded as spousal support and attorney fees are not part
of the probate estate by operation of Section 40-4-20(B). 	The Divorce Court’s
classification did not contribute to its conclusion requiring the Estate to pay the
spousal support and attorney fee awards immediately, and the classification, if error,
is not grounds for reversal. See Downs v. Garay, 106 N.M. 321, 323, 742 P.2d 533,
535 (Ct. App. 1987) (“[E]rroneous findings of fact not necessary to support the
judgment of the court are not grounds for reversal.”).
SECTION 40-4-20(B)
{11} 	We 	therefore 	turn 	to 	the 	Estate’s 	argument 	that 	the 	Divorce 	Court
misinterpreted Section 40-4-20(B) as providing it with authority to order the
immediate payment of the spousal support and attorney fee awards without forcing
Melissa to comply with the Probate Code’s creditors’ claims classification provision,
Section 45-3-805(A), as a priority before the Probate Court assumed jurisdiction over
the Estate’s assets. On the other hand, Melissa argues that the Divorce Court did not
err because the spousal support and attorney fee awards “were outside the Estate” by

8
operation of Section 40-4-20(B) and, therefore, not subject to Section 45-3-805(A).
This issue requires statutory construction of Section 40-4-20(B), Section 45-3-805(A),
and related provisions in both the domestic affairs statutes and Probate Code. 	{12}
When engaging in statutory construction, our guiding principle is to give effect
to the intent of the Legislature. Att’y Gen. v. N.M. Pub. Regulation Comm’n, 2011-
NMSC-034, ¶ 10, 150 N.M. 174, 258 P.3d 453. In determining legislative intent, we
first look to the “plain language of the statute, giving the words their ordinary
meaning, unless the Legislature indicates a different one was intended.” Id. (internal
quotation marks and citation omitted). Further,
[w]hen construing statutes related to the same subject matter, the
provisions of a statute must be read together with other statutes in pari
materia under the presumption that the [L]egislature acted with full
knowledge of relevant statutory and common law. Thus, two statutes
covering the same subject matter should be harmonized and construed
together when possible, in a way that facilitates their operation and the
achievement of their goals.
Id. (internal quotation marks and citation omitted).
{13} 	We begin by examining the scope of the relevant sections of the Probate Code,
including Section 45-3-805(A). 	Chapter eight of the Probate Code, entitled
“creditors’ claims,” provides the procedures for the payment of creditors’ claims
against an estate. See generally NMSA 1978, §§ 45-3-801 to -816 (1975, as amended
through 2011). Section 45-3-805(A) provides the priority scheme for payments when

9
the assets in an estate are insufficient to pay all of the estate’s creditors’ claims. It
divides creditors’ claims against an estate into six classes and provides the priority for
payment of each class. As Melissa points out, Section 45-3-805(A) only applies “[i]f
the applicable assets of the estate are insufficient to pay all claims in full[.]”
(Emphasis added.) She argues that the spousal support and attorney fee awards are
not paid from Estate assets and therefore Section 45-3-805(A) does not apply.
However, whether the awards are paid from Estate assets depends on whether the
Legislature, when enacting Section 40-4-20(B), intended that the awards be “claims”
under the Probate Code, or whether the Legislature intended the awards to be paid
before the probate proceedings.
{14} 	The Probate Code defines “claims” as “includ[ing] liabilities of the decedent
or protected person, whether arising in contract, in tort or otherwise and liabilities of
the estate that arise at or after the death of the decedent or after the appointment of a
conservator, including funeral expenses and expenses of administration.” 	NMSA
1978, § 45-1-201(A)(7) (2011). 	Generally, a judgment obtained in another court
against a personal representative is considered an allowed claim against an estate, and
the recipient may not execute on the judgment without complying with the Probate
Code’s creditors’ claims provision. 	See § 45-3-806(D); § 45-3-812. We must
therefore determine whether the Legislature intended a judgment for spousal support

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and attorney fees in a divorce action continued after the death of a party pursuant to
Section 40-4-20(B) to follow this general scheme or whether Section 40-4-20(B)
requires payment before the subsequent probate proceedings.
{15} 	Under the common law rule of abatement, the death of either party during the
pendency of a marriage dissolution proceeding before the entry of a final decree
divested the court of jurisdiction. Trinosky v. Johnstone, 2011-NMCA-045, ¶ 13, 149
N.M. 605, 252 P.3d 829. By enacting Section 40-4-20(B), the Legislature departed
from the common law rule of abatement. 	Trinosky, 2011-NMCA-045, ¶ 13. 	The
relevant portions of Section 40-4-20(B) provide that:
Upon the filing and service of a petition for dissolution of
marriage, separation, annulment, division of property or debts, spousal
support, child support or determination of paternity . . . if a party to the
action dies during the pendency of the action, but prior to the entry of a
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, 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.
{16} 	We first address Section 40-4-20(B) as applied to the spousal support award
and conclude that, by the plain language of Section 40-4-20(B), the Legislature
intended spousal support awards against an estate to be paid before the probate
proceedings. First, Section 40-4-20(B) expressly provides that upon the filing of a
petition for spousal support, the “distribution of spousal . . . support . . . shall not

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abate.” 	(Emphasis added.) 	“Distribute” is defined as “to divide among several or
many: deal out: apportion” or to “dispense, administer.” Webster’s Third New Int’l
Dictionary 660 (Unabridged 1993). 	Based on this definition, by using the term
“distribution,” the Legislature intended that a district court in a domestic relations
proceeding have more authority than simply awarding a judgment for spousal support.
The Legislature intended that the court may issue the judgment and conclude the
enforcement, or actual dispensing, of the award.
{17} 	Second, Section 40-4-20(B) directs the court to “conclude the proceedings as
if both parties had survived.” Although a final judgment with an award of spousal
support may “conclude” a proceeding in some cases, a district court maintains
jurisdiction to enforce the final judgment. See Trinosky, 2011-NMCA-045, ¶ 17; Hall
v. Hall, 114 N.M. 378, 388, 838 P.2d 995, 1005 (Ct. App. 1992) (noting that a court
has jurisdiction post-judgment to enforce a judgment). By ordering the immediate
payment of the spousal support award, the Divorce Court’s order can properly be
characterized as enforcing the award to ensure that the award be paid, especially
considering that the Divorce Court was aware that the Estate’s assets may be
insufficient to pay all creditors’ claims. See Hall, 114 N.M. at 388, 838 P.2d at 1005
(defining “[e]nforce” as “to compel obedience to, or to cause the provisions to be
executed”). This action to enforce the final judgment is part of the “proceedings” that

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Section 40-4-20(B) mandates a court to “conclude.”
{18} 	Our reading is consistent with the goals of the statutory provisions governing
spousal support. See Att’y Gen., 2011-NMSC-034, ¶ 10 (“[T]wo statutes covering the
same subject matter should be harmonized and construed together when possible, in
a way that facilitates their operation and the achievement of their goals.” (internal
quotation marks and citation omitted)). Spousal support is statutorily authorized by
NMSA 1978, Section 40-4-7(B) (1997). It is characterized as “a continuation of the
right to support.” 	Ellsworth v. Ellsworth, 97 N.M. 133, 135, 637 P.2d 564, 566
(1981). It is “based on need, ability to self-support, and the equities of the particular
situation.” 	Talley v. Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App. 1993)
(internal quotation marks and citation omitted). Considering that spousal support is
based on the recipient’s need and that, by enacting Section 40-4-20(B), the Legislature
clearly intended the recipient to receive spousal support regardless of the death of a
spouse, it would frustrate the legislative purpose to require a recipient to wait, in some
cases years, while probate proceedings take place in order to receive spousal support.
Further, requiring the recipient to comply with the creditors’ claims provision may
lead to the recipient of the spousal support not receiving any support, if the debts to
creditors exceed the estate’s assets. These concerns are especially troublesome when
considered in light of child support. 	Section 40-4-20(B) does not differentiate

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between spousal support and child support, treating them the same under the anti-
abatement provision. 	If we were to hold that a spousal support award is simply a
judgment or claim and that a district court in a domestic affairs proceeding cannot
enforce the judgment against an estate, a child support award would require the same
treatment and a decedent’s child would be forced to wait in line with other creditors.
{19} 	Further, 	our 	reading 	is 	consistent 	with 	our 	Supreme 	Court’s 	recent
interpretation of Section 40-4-20(B) and case law regarding the nature of lump-sum
spousal support awards. In Oldham v. Oldham, 2011-NMSC-007, ¶ 31, 149 N.M.
215, 247 P.3d 736, our Supreme Court “clarif[ied] the procedural sequence that must
be followed in cases where one party to a pending divorce action dies before the entry
of a final divorce decree.” 	The Court held that “distributing the decedent’s estate
under the decedent’s estate plan and the [Probate Code] without first establishing the
decedent’s share of the marital property and debts would be unworkable and contrary
to legislative intent.” 	Id. 	It additionally stated that the decedent’s “estate must be
defined through the entry of a Section 40-4-20(B) marital property judgment before
that estate can be distributed in probate.” 	Oldham, 2011-NMSC-007, ¶ 31.
Underlying this holding is that “the domestic relations court must determine the extent
of the decedent’s separate property and share of the community property in order to
determine what property will pass by intestacy.” Id. ¶ 34. In other words, once the

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surviving spouse receives property in the domestic relations proceeding from a
property division, the property immediately becomes the property of the recipient
spouse and therefore defines the assets in the estate. This holding applies to a spousal
support award to the extent that a spousal support award creates an immediate
property right in the assets of the estate that are awarded as spousal support.
{20} 	The spousal support award in this case was a lump-sum spousal support award
even though the district court based the award on accrued monthly sums over a
specific period of time. See Deeds v. Deeds, 115 N.M. 192, 194, 848 P.2d 1119, 1121
(Ct. App. 1993) (“Lump-sum alimony has been defined as the award of a definite sum
of money[.]” (internal quotation marks and citation omitted)); see also Michaluk v.
Burke, 105 N.M. 670, 675, 735 P.2d 1176, 1181 (Ct. App. 1987) (“[L]ump sum
alimony [is] akin to accrued periodic alimony.”). This Court has held that “[l]ump-
sum alimony becomes a vested property right from the day of judgment.” Deeds, 115
N.M. at 194, 848 P.2d at 1121; see also NMSA 1978, § 40-4-12 (1973) (“[T]he court
may make an allowance to either spouse of the other spouse’s separate property as
alimony and the decree making the allowance shall have the force and effect of
vesting the title of the property so allowed in the recipient.”). Because it becomes a
vested property right, the “sum must be paid in full, regardless of future events.”
Deeds, 115 N.M. at 194, 848 P.2d at 1121. Applying these principles to this case, the

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spousal support award became a vested property interest in Melissa when the Divorce
Court issued its final order, and, therefore, the sum needed to pay the award was no
longer part of the property of the Estate subject to the creditors’ claims provision. See
Oldham, 2011-NMSC-007, ¶ 34. 	Therefore, the spousal support award was not a
claim under the Probate Code to which the creditors’ claims provision would apply.
The Divorce Court did not err by ordering that the Estate pay the spousal support
award immediately before the probate proceedings.
{21} 	Regarding the attorney fee award, we first note that Section 40-4-20(B) does
not specifically mention attorney fees. Further, some of the rationale we relied upon
in determining that the Legislature did not intend spousal support awards to be
considered “claims” under the Probate Code do not readily apply to the attorney fee
award, including the plain language meaning of “distribution” and the immediate
vesting of lump-sum spousal support awards as a property interest in the recipient.
{22} 	However, Section 40-4-20(B) states that “the proceedings . . . shall not abate”
and that the “court shall conclude the proceedings as if both parties had survived.”
(Emphasis added.) Attorney fees in domestic relations cases are authorized by Section
40-4-7(A), which states that “[i]n any proceeding for the dissolution of marriage,
division of property, disposition of children or spousal support . . . [t]he court may
make an order, relative to the expenses of the proceeding, as will ensure either party

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an efficient preparation and presentation of his case.” (Emphasis added.) Construing
Section 40-4-7(A) and Section 40-4-20(B) together, the Divorce Court awarded the
attorney fees as part of the “proceedings” covered by Section 40-4-20(B) that the
Divorce Court is mandated to “conclude . . . as if both parties had survived.” As we
have determined, a district court maintains jurisdiction to enforce the final judgment.
See Hall, 114 N.M. at 388, 838 P.2d at 1005 (noting that a court has jurisdiction post-
judgment to enforce a judgment). 	We construe the Divorce Court’s order that the
Estate pay the attorney fee award immediately to Melissa as enforcing the judgment.
See id. (defining “[e]nforce” as “to compel obedience to, or to cause the provisions to
be executed”). 	The Divorce Court therefore did not err in ordering the immediate
payment of the attorney fee award in concluding the divorce proceedings.
{23} 	The Estate argues that Section 40-4-20(B) is simply a “survivorship statute” and
that a judgment in an action continued pursuant to Section 40-4-20(B) should be
treated the same as a judgment pursuant to other survivorship statutes, which is that
the judgment is an allowed claim under the Probate Code. 	For support, the Estate
cites NMSA 1978, Section 37-2-1 (1941), the survivorship statute for wrongful death
and personal injury cases. However, the statutes are distinguishable. Section 37-2-1
only provides that “[t]he cause of action for wrongful death and the cause of action
for personal injuries, shall survive the death of the party responsible therefor.”

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Section 40-4-20(B) is more specific and states that the court must conclude the
proceedings as if both parties survived as opposed to simply providing that the cause
of action survives the responsible party’s death.
{24} 	The Estate also makes several other arguments: (1) that when the Legislature
intended that a payment for a claim be made against other creditors of an estate, it has
expressly done so, (2) that the Divorce Court ordering the immediate payment injures
other claimants and deprives them of due process, and (3) that by ordering the
immediate payment of the awards, the Divorce Court potentially subjects the personal
representative to personal liability or conflicting obligations. 	However, these
arguments presume that the spousal support and attorney fee awards are claims against
the Estate that will be paid from Estate assets. As we have determined, the awards are
not claims against the Estate.
FEDERAL INSOLVENCY ACT
{25} 	The Estate next argues that the Divorce Court’s order requiring the Estate
immediately pay the spousal support and attorney fee awards to Melissa violates the
Federal Insolvency Act, particularly 31 U.S.C. § 3713(a)(1)(B). Further, the Estate
argues that immediate payment of the awards subjects the personal representative to
personal liability under 31 U.S.C. § 3713(b). 	These arguments require statutory
construction of 31 U.S.C. § 3713(a)(1)(B), and (b).

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{26} 	31 U.S.C. § 3713(a)(1)(B) provides that “[a] claim of the United States
Government shall be paid first when . . . the estate of a deceased debtor, in the custody
of the executor or administrator, is not enough to pay all debts of the debtor.”
(Emphasis added.) 31 U.S.C. § 3713(b) provides that “representative of . . . an estate
. . . paying any part of a debt of the . . . estate before paying a claim of the
Government is liable to the extent of the payment for unpaid claims of the
Government.” 	Again, the Estate premises its argument on the assumption that the
spousal support and attorney fee awards is an allowed claim and therefore payable
from Estate assets. 	As we have determined, the awards are not claims against the
Estate, and, therefore, the Federal Insolvency Act does not apply.
RES JUDICATA
{27} 	The Estate also argues that the Probate Court’s August 13, 2009 order declaring
that the spousal support and attorney fee awards are Class Six claims under the
Probate Code was a final order for purposes of appeal, and, therefore, the Divorce
Court erred by failing to give res judicata effect to the order. However, the Estate
failed to show that it preserved the issue in the Divorce Court.
{28} 	“To preserve a question for review it must appear that a ruling or decision by
the district court was fairly invoked[.]” 	Rule 12-216(A) NMRA. 	In order “[t]o
preserve error for review, a party must fairly invoke a ruling of the district court on

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the same grounds argued in this Court.” 	Crutchfield v. N.M. Dep’t of Taxation &
Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273. The primary purposes
of the preservation requirements are (1) to specifically alert the district court 	to a
claim of error so that the error may be corrected at that time, (2) to allow the opposing
party adequate opportunity to respond to a claim of error, and (3) to create a sufficient
record to allow this Court to make an informed decision regarding the contested issue.
Gerke v. Romero, 2010-NMCA-060, ¶ 18, 148 N.M. 367, 237 P.3d 111, cert. denied,
2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.
{29} 	The Estate argues that it preserved the issue (1) by “inform[ing]” the Divorce
Court of the Probate Court’s order at a hearing on August 17, 2009, (2) in its response
to Melissa’s motion to release separate funds and request for expedited treatment, and
(3) in its proposed findings of fact and conclusions of law. 	Yet, in none of these
instances did the Estate argue that res judicata applied to the August 13, 2009 order,
and the Divorce Court did not make a determination regarding the issue. In the cited
proposed conclusion of law, the Estate states only that the August 13, 2009 order “was
a final [o]rder and the time for appealing that [o]rder has run.” 	At the August 17,
2009 hearing and in the response to Melissa’s motion to release separate funds and
request for expedited treatment, the Estate mentioned the Probate Court’s August 13,
2009 order as a reason for not complying with the earlier order of the Divorce Court

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ordering the Estate to pay the interim spousal support and attorney fee awards
immediately. The Estate did not “fairly invoke” a ruling as to the August 13, 2009
order’s preclusive effect in the Divorce Court.
{30} 	Even if we were to address the merits of the issue, however, principles of res
judicata do not apply. Res judicata requires that (1) the parties are the same; (2) the
cause of action is the same; (3) there has been a final decision in the first suit; and (4)
the first decision was on the merits. 	Kirby v. Guardian Life Ins. Co. of Am., 2010-
NMSC-014, ¶ 61, 148 N.M. 106, 231 P.3d 87. As we have discussed, the spousal
support award was not a claim under the Probate Code to which the creditors’ claims
provision would apply. Further, we have construed the Divorce Court’s order that the
Estate pay the attorney fee award as enforcing the judgment. 	Thus, although the
parties in these cases were the same, the cause of action in the Probate Court and the
Divorce Court were not. Principles of claim preclusion do not apply.
ATTORNEY FEES ON APPEAL
{31} 	Melissa argues that she is entitled to attorney fees and costs for this appeal
because the Estate’s “quest in this litigation was not in good faith.” In arguing bad
faith, Melissa relies on findings from the district court that the Estate “undertook an
over-vigorous attack” during the district court proceedings. Further, Melissa appears
to argue that she is entitled to attorney fees because the Estate’s position in this case

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is unsupported by law.
{32} 	New Mexico recognizes “a bad-faith exception to the American [r]ule under
which parties typically pay their own fees.” 	ERICA, Inc. v. N.M. Regulation &
Licensing Dep’t, 2008-NMCA-065, ¶ 54, 144 N.M. 132, 184 P.3d 444 (internal
quotation marks and citation omitted). 	“[A] court may award attorney fees to
vindicate its judicial authority and compensate the prevailing party for expenses
incurred as a result of frivolous or vexatious litigation.” Id. (internal quotation marks
and citation omitted). However, this Court does not have the inherent authority to
award attorney fees on appeal for proceedings in the district court. Id. Further, we
do not determine that the Estate engaged in bad faith during this appeal. We therefore
deny Melissa’s request for attorney fees.
CONCLUSION
{33} 	In a divorce proceeding continued after the death of a party pursuant to Section
40-4-20(B) in which the court awards lump-sum spousal support and attorney fees,
the final judgment is not a “claim” against an estate for purposes of the Probate
Code’s creditors’ claims provision. Therefore, in this case, the Divorce Court did not
err in ordering that the Estate pay the spousal support and attorney fee awards
immediately, before the probate proceedings. As a result, we affirm.
{34} 	IT IS SO ORDERED.

JAMES J. WECHSLER, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

LINDA M. VANZI, Judge

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