June 18, 2015 – Utti Atherton, Laura Jaramillo, John Doe 1-99 and Jane Doe 1-99 and State of New Mexico ex rel Hector Balderas, Attorney General v. Michael Gopin, and unlicensed New Mexico attorney d/b/a Law Offices of Michael J. Gopin, NO. 32,958

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ June 18, 2015

NO. 32,958

UTTI ATHERTON, LAURA JARAMILLO,
JOHN DOE 1-99, and J ANE DOE 1-99,

Plaintiffs-A ppellees,
and

STATE OF NEW MEXICO, ex rel.,
HECTOR H. BALDERAS, Attorney General,

Plaintiff-A ppellee,
V.
MICHAEL J. GOPIN, an unlicensed New
Mexioo attormey d/b/a LAW OFFICES
OF MICHAEL J. GOPIN,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
James T. Martin, District Judge

Robert N. (Tito) Meyer
Las Cruces, NM

Kenneth L. Beal
Las Cruces, NM
for Appellees
Hector H. Balderas, Attorney General
Santa Fe, NM
Tonya Noonan Herring, Special Assistant Attorney General
Rebecca C. Branch, Special Assistant Attorney General
Ismael L. Camacho, Special Assistant Attorney General
Albuquerque, NM
for Appellee Attorney General
Caren I. Friedman
Santa Fe, NM
Gorence & Oliveros, P.C.
Robert J. Gorence
Albuquerque, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	After a ne exeat bond is set, may a district court exercise its discretion to
increase the amount of the bond? This is a matter of first impression in New Mexico.
To resolve the issue, we examine the parameters of the writ of ne exeat, a little-used
writ with origins dating as far back as the tenth century. Concluding that the district
court did not abuse its discretion, we affirm.
BACKGROUND
{2} 	The present matter stems from a 2011 judgment against Michael J. Gopin
(Defendant) for violations of the New Mexico Unfair Practices Act (UPA), NMSA
1978, §§ 57-12-1 to -26 (1967, as amended through 2009). “The judgment included
treble damage awards in favor of twelve individual [p]laintiffs totaling $216,222.57,
$757,358.56 in favor of the New Mexico Attorney General as restitution for 110
consumers, and $1,570,000 in civil penalties in favor of the Attorney General.”
Atherton v. Gopin (Atherton I), 2015-NMCA-003, ¶ 2, 340 P.3d 630, cert. granted,
2014-NMCERT-012, 344 P.3d 988. The details leading to the judgment are set out in
this Court’s Opinion in the appeal of that judgment. Id. ¶¶ 5-17. Because those details
are not critical to the issue before us on this appeal, we do not repeat them here. It
suffices to say that after entry of summary judgment in Atherton I, the district court

2
issued a writ of ne exeat, the subsequent alteration of which is the only issue before
us in this appeal.
{3} 	The Attorney General filed an application for writ of ne exeat on January 3,
2012, less than a month after entry of the judgment. The application requested the
district court to enter a writ “without advance notice to Defendant,” barring Defendant
from leaving the State of New Mexico, removing any assets from New Mexico, and
“hiding, spending, or disposing of his personal assets, or the assets of the business,
pending further order of [the district c]ourt.” A hearing was held on January 5, 2012.
At the hearing, the district court stated that “the Attorney General has established
good cause to believe that [Defendant] may be about to remove assets from the
jurisdiction of the [district] court.” It ordered Defendant to post a ne exeat bond in the
amount of $100,000, which was based on the sale price of a building Defendant
owned in New Mexico (the Solano property).
{4} 	Defendant moved for reconsideration of the ne exeat bond order, but failed to
appear at the hearing on the motion. Following the hearing, the district court entered
findings of fact. Specifically, it found that (1) “[t]he evidence before the [c]ourt
establishes that Defendant has engaged in . . . complex financial transaction[s] for the
purpose of preventing collection of this judgment[;]” (2) “Defendant has dissipated
assets during the pendency of this case, including the sale of [the Solano] property
located in Las Cruces, New Mexico[;]” and (3) “[a]t the January 5, 2012[,] hearing,

3
Defendant testified under oath that he would attend all future hearings in this case and
would not flee the jurisdiction.” It also found that “[m]ore than [thirty] days has
passed since the [c]ourt ordered [D]efendant to post a bond with the [c]ourt.” Based
on these and other findings, the district court concluded that “a bond in the amount of
$500,000, which represents approximately 25% of the total judgment entered against
[D]efendant, is appropriate to prevent further dissipation of assets within the
jurisdiction of the [c]ourt and to secure [D]efendant’s appearance at all future
proceedings.”
{5} 	On March 20, 2012, the district court issued a temporary restraining order
enjoining Defendant from, among other things, removing any assets owned by him
personally or owned by the law offices of Michael J. Gopin from New Mexico.
Defendant then failed to appear for a March 27, 2012, hearing and the district court
issued an order to show cause why he should not be held in contempt for failure to
appear. The show cause hearing was scheduled for May 16, 2012. Meanwhile, the ne
exeat bond order for a bond of $500,000 was issued on April 24, 2012. Defendant
failed to post the bond and failed to appear at the May 16, 2012, hearing. The district
court then entered a bench warrant for his arrest and increased the bond to $1,000,000
($500,000 for the ne exeat bond and $500,000 for failure to appear at the May 16,
2012, hearing). Defendant was arrested and put in jail. Pursuant to Defendant’s

4
emergency motion, the district court quashed the bench warrant and reduced the ne
exeat bond to $250,000. Defendant paid that sum into the court registry.
{6} 	Defendant does not appeal any of the foregoing rulings or orders. Rather,
Defendant only appeals an order increasing the amount of the ne exeat bond. This
order followed a February 27, 2013, motion for increase by the Attorney General in
which the Attorney General alleged that Defendant “continue[d] to dissipate his assets
from New Mexico.” Defendant filed responsive pleadings, and a hearing on the
motion was held on April 30, 2013. The district court found that “Defendant’s [r]eal
[e]state [c]ontract [for sale of the Solano property] is an asset that Defendant continues
to dissipate from the [S]tate of New Mexico” and ordered Defendant to post an
additional $120,000 as part of the ne exeat bond.
DISCUSSION
The Writ of Ne Exeat
{7} 	Section 57-12-17 of the UPA permits the attorney general to move for a writ
of ne exeat “[w]henever the attorney general has reasonable belief that any . . . person
[violating the UPA] is about to remove himself from the [S]tate of New Mexico, or
is about to remove his property or assets from the [S]tate of New Mexico.” Using the
writ, “the court may forbid any such person from leaving the [S]tate of New Mexico,
or removing his property or assets from the [S]tate of New Mexico until a
determination of the issues [alleged under the UPA] has been made.” Id. There are no

5
cases in New Mexico construing the ne exeat provisions in the UPA. See §§ 57-12-17
to -20. Thus the questions presented here are matters of first impression.
{8} 	Although the parties appear to agree that the district court’s authority to issue
the writ arises from the UPA, “the writ of ne exeat was not created, nor are its
functions defined by statute.” Nixon v. Nixon, 158 N.W.2d 919, 922 (Wis. 1968).
Hence, “[a]s to the general functions of the writ and the grounds upon which it may
issue, resort must be had to principles of the common law.” Id.
{9} 	The writ of ne exeat has ancient origins. “The forerunner of this writ in ancient
common law appears to have been a writ de securitatem invenienda which was
designed to prevent members of the clergy in England from departing the realm to
visit the Papal See. It was thus limited in use to ecclesiastics only.” Nat’l Auto. & Cas.
Ins. Co. v. Queck, 405 P.2d 905, 909 (Ariz. Ct. App. 1965). “Sometime between the
reign of John (1199-1216), and Edward I (1272-1307), . . . the writ of ne exeat regno
was first used as a high prerogative writ . . . applied to subjects and foreigners alike,
to prevent them from leaving the kingdom.” Id. By the seventeenth century, use of the
writ of ne exeat had evolved to encompass enforcement of private rights. Id. at 910;
see also Beveridge v. Beveridge, 507 A.2d 502, 504 (Conn. App. Ct. 1986).
{10} 	As used today, “[t]he writ of ne exeat is an equitable remedy in the nature of
bail at common law. It is directed to the sheriff, commanding him to commit the party
to prison until he gives security not to leave the jurisdiction without permission of the

6
court.” The Writ of Ne Exeat, 29 Harv. L. Rev. 206, 206 (1915) (footnotes omitted).
“The purposes of the writ are to insure compliance with orders and decrees of court
and to enable the court to retain jurisdiction of the party against whom it is issued.”
65 C.J.S. Ne Exeat § 2 (2015); Tedards v. Auty, 557 A.2d 1030, 1034 (N.J. Super. Ct.
App. Div. 1989) (“The purpose of a writ of ne exeat is to compel a defendant’s
physical appearance in court when required.”). There are “two requirements for the
issuance of the writ: (1) a threatened departure of the defendant [or removal of
property] from the jurisdiction; and (2) a resulting defeat of the court’s power to give
effective in personam relief due to its loss of control over the defendant’s person [or
property].” United States v. Robbins, 235 F. Supp. 353, 356 (E.D. Ark. 1964); see §
57-12-17; 57 Am. Jur. 2d Ne Exeat § 9 (2015) (“[W]here the removal of property
would defeat the purpose of a ne exeat writ, the order in the writ may detain property,
as well as the person.”).
{11} 	These requirements circumscribe the use of a writ of ne exeat: “In the absence
of [a threat to abscond], the writ may not be used as a form[] of coercing payment of
a debt, no matter how just, nor as a form[] of punishment, no matter how deserved.”
Tedards, 557 A.2d at 1034. Moreover, because “[t]he writ of ne exeat operates in
restraint of personal liberty[, i]t is to be granted with caution [and] continued in force
with caution.” Cohen v. Cohen, 64 N.E.2d 689, 693 (Mass. 1946); Elkay Steel Co. v.
Collins, 141 A.2d 212, 218 (Pa. 1958) (stating that “use and employment [of the writ]

7
must be carefully circumscribed within appropriate limits and its issuance exercised
with great caution and only in such instances where it clearly and unmistakably
applies”). “As an adjunct to the trial court’s equitable jurisdiction, the issuance, terms,
and implementation of writs of ne exeat lie within the court’s sound discretion.”
Gredone v. Gredone, 361 A.2d 176, 180 (D.C. 1976).
{12} 	Once the purpose of the writ and conditions of the bond have been fulfilled, the
writ and the bond are discharged. May v. May, 91 S.E. 687, 688 (Ga. 1917) (stating
that when the defendant did all that he was “obligated to do in his bond; and, the bond
having discharged all the offices for which it was intended, [the bond] should have
been canceled as functus officio, and the sureties discharged”); 27A C.J.S. Divorce
§ 198 (2015) (“Upon the fulfillment of the purpose of the writ and the conditions of
the bond, . . . the writ and the bond are functus officio.” (footnotes omitted)); Black’s
Law Dictionary 787 (10th ed. 2014) (defining “functus officio” as “without further
authority or legal competence because the duties and functions of the original
commission have been fully accomplished”). On the other hand, failure to comply
with the conditions of a ne exeat bond results in forfeiture of the bond. See 27A C.J.S.
Divorce § 198 (“A failure to meet the conditions of a ne exeat bond forfeit[s] the
entire bond.”); Queck, 405 P.2d at 912 (stating that where the defendant failed to stay
within the jurisdiction, the bond was forfeited). As with the issuance of a writ of ne

8
exeat, “the matter of discharge . . . on a [n]e exeat bond rests in the sound discretion
of the court.” Coursen v. Coursen, 252 A.2d 738, 739 (N.J. Super. Ct. App. Div.
1969).
Defendant’s Arguments
{13} 	Defendant makes four arguments. First, he argues that the district court lacked
jurisdiction to order an increase in the ne exeat bond. Second, he maintains that the
ne exeat bond violated the UPA. Third, Defendant contends that there was insufficient
evidence to support increasing the bond. Finally, he argues that he was deprived of his
right to due process of law when the district court ordered the ne exeat bond increased.
We address these arguments in turn.
1. 	Jurisdiction to Increase the Bond
{14} 	Defendant argues first that the district court did not have jurisdiction to increase
the amount of the bond because an appeal was pending in the underlying matter
(Atherton I). We review such jurisdictional questions de novo. Smith v. City of Santa
Fe, 2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. Defendant relies on the
general rule “that the filing of a proper notice of appeal divests the district court of
jurisdiction and transfers jurisdiction to the appellate court.” Murken v. Solv-Ex Corp.,
2006-NMCA-064, ¶ 9, 139 N.M. 625, 136 P.3d 1035. Recognizing that “the rule is
not absolute, as it does not prevent the district court from taking actions to carry out
or enforce the judgment[,]” id. (internal quotation marks and citation omitted),

9
Defendant argues that “increasing the amount of the ne exeat bond by $120,000 does
not enable the [district] court to carry out or enforce the judgment.” Rather, he argues,
the increase in the bond amount was a modification of the judgment, an act not within
the district court’s jurisdiction once the judgment is appealed. See Hall v. Hall, 1992-
NMCA-097, ¶ 38, 114 N.M. 378, 838 P.2d 995 (“As a general rule, while a court has
jurisdiction after the judgment to enforce that judgment, it lacks jurisdiction to modify
the judgment except under limited circumstances.”).
{15} 	Defendant’s argument ignores the basic nature of the writ. A ne exeat bond
order “is not in itself a remedy. It is a means to effectuate a remedy by keeping a party
within the jurisdiction of the court.” 57 Am. Jur. 2d Ne Exeat § 2 (2015). The writ is
not part of the judgment. Id. It follows that modification of a bond amount is not akin
to modification of a judgment.
{16} 	To the extent that Defendant argues that the ne exeat bond order is not collateral
to the underlying judgment because “[t]here can be no issuance of a writ of ne exeat
if there is no violation of the [UPA,]” we disagree. 	Issuance of the writ does not
depend on an actual violation of the UPA. Section 57-12-17 permits the issuance of
a writ of ne exeat when the “attorney general has reasonable belief that any person is
using or is about to use any method, act or practice which is declared by the [UPA]
to be unlawful” and “reasonable belief that any such person is about to remove
himself from the [S]tate of New Mexico, or is about to remove his property or assets

10
from the [S]tate of New Mexico.” Id. (emphasis added). This language indicates that
the Legislature contemplated issuance of the writ even before entry of judgment on
the UPA claims. The writ is thus an aid to effecting a remedy for UPA violations, but
it is not itself a remedy. It is necessarily collateral to any UPA judgment that may be
entered.
{17} 	Finally, Defendant argues that the district court lost jurisdiction to enter the writ
once judgment was entered because Section 57-12-17 provides for issuance of the writ
“until a determination of the issues has been made.” We do not agree. Given the
purposes of the writ of ne exeat, it does not make sense to construe the statute as
depriving the district court of jurisdiction over this collateral matter while a judgment
is on appeal. Instead, we interpret this language to permit continuation of the writ until
the issues are completely determined, meaning that judgment is either paid or
dismissed. See Tafoya v. Garcia, 1871-NMSC-003, ¶ 5, 1 N.M. 480 (“The spirit, as
well as the letter of the statute, must be respected; and where the whole context of a
law demonstrates a particular intent in the [L]egislature to effect a certain object, some
degree of implication may be called in to aid that intent[.]” (internal quotation marks
and citation omitted)). We conclude that the modification of the ne exeat bond order
here was within the district court’s jurisdiction to enforce its judgment in Atherton I
notwithstanding the appeal of that judgment.
2. 	The Bond Conforms to the Statute

11
{18} 	Defendant next argues that issuance of a bond order conditioned on refraining
from dissipating assets is contrary to the terms of the UPA. He distinguishes a writ of
ne exeat from a ne exeat bond and argues that whereas Section 57-12-17 permits entry
of a writ to prevent dissipation, Section 57-12-18 limits ne exeat bonds to those
conditioned on the defendant’s appearance in court. Section 57-12-18 states that “[t]he
court may require any . . . person [alleged to violate the UPA] to post a ne exeat bond
conditioned on such persons [person’s] appearance at all hearings on the matter at
issue.” (Third alteration in original). Defendant’s argument presents a question of
statutory construction which we review de novo. Hovet v. Allstate Ins. Co., 2004-
NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69.
{19} 	“In construing a statute, our charge is to determine and give effect to the
Legislature’s intent.” Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-
NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. Where a statute touches an issue in the
common law, we interpret the statute’s language in the context of that law. Sims v.
Sims, 1996-NMSC-078, ¶ 23, 122 N.M. 618, 930 P.2d 153. We assume that the
Legislature was “informed about the existing common law before the statute was
enacted,” id. ¶ 24, and interpret a statute “as supplanting the common law only if there
is an explicit indication that the [L]egislature so intended.” Id. ¶ 22. “This rule of
construction is a recognition that any law is passed against the background of all the

12
law in effect at the time. If no aspect of the background of law is clearly abrogated,
it is presumed to be consistent with, if not incorporated into, new legislation.” Id. ¶ 24.
{20} 	As discussed above, at common law, a bond is an inherent part of a writ of ne
exeat. Put another way, the writ itself contemplates—if not requires—a bond. 57 Am.
Jur. 2d Ne Exeat § 2 (“A writ of ne exeat may be issued to secure to the plaintiff the
presence of the defendant within the limits of the court’s jurisdiction until the
satisfaction of the plaintiff’s equitable claim or until a bond, or equitable bail, is given
for that purpose.” (emphasis added) (footnote omitted)). Defendant’s distinction
between a writ of ne exeat and a ne exeat bond is, therefore, specious. In addition,
“[h]istorically, where the removal of property would defeat the purpose of a ne exeat
writ, the order in the writ may detain property, as well as the person.” 57 Am. Jur. 2d
Ne Exeat § 9. Hence, at common law, a ne exeat writ, including a bond, may be
conditioned on preservation of assets. Although Section 57-12-18 provides for an
instance in which a bond may be required, it does not prohibit bonds related to assets
or property. Therefore, since the statute is silent as to these bonds, the statute does not
abrogate the common law. Issuance of the bond order conditioned on preservation of
assets was not contrary to the UPA.
3. 	Sufficiency of the Evidence
{21} 	Next, Defendant argues that the district court’s decision to increase the bond
amount was not supported by sufficient evidence. He alleges three ways in which the

13
district court’s order was error. First, he argues that because the district court’s first
ne exeat bond order of $100,000 was based on the value of the Solano property, the
subsequent increase of the bond order based on a real estate contract related to the
same property was improper. Second, he contends that there was no evidence that he
had an ownership interest in the Solano property. Third, he maintains that there was
no evidence that he had or would dissipate assets in New Mexico. We address these
arguments in turn.
{22} 	The fundamental premise of Defendant’s first argument is that the amount of
the bond order must be based on the value of the property he is allegedly dissipating
and that, therefore, the same property cannot serve twice as the basis for a bond order.
It appears that the parties and the district court shared this understanding of the limits
on the amount of a ne exeat bond. But the parties do not cite and we have found no
authority supporting this premise. Rather, some authorities state that the amount of a
ne exeat bond is related to the amount of the plaintiff’s interests or the judgment. See,
e.g., Polly J. Price, Full Faith & Credit & the Equity Conflict, 84 Va. L. Rev. 747, 801
(1998) (“The writ was commonly directed to a sheriff to require the defendant to post
sufficient security that he would not depart the territory without leave of the court, in
an amount sufficient to satisfy the plaintiff’s interest, or be imprisoned.”); 57 Am. Jur.
2d Ne Exeat § 26 (2015) (“The sum assessed must be sufficient to cover not only the
existing debt but also costs and a reasonable amount of future interest having regard

14
to the probable duration of the suit.”); McNamara v. Dwyer, 7 Paige Ch. 239, 245
(N.Y. Ch. 1838) (holding that “[t]he amount in which the defendant is held to bail
upon the [n]e exeat should therefore be reduced to $9000; as that will be sufficient to
cover what will probably be found due to the complainants, with interest and costs”).
Other authorities appear to endorse a bond based on an assessment of the amount
necessary to provide the defendant a material incentive to remain within the
jurisdiction and/or refrain from dissipating assets without regard to the amount at issue
in the underlying action. See, e.g., Elkay Steel Co., 141 A.2d at 214 n.3 (ordering bond
of $25,000 each from two defendants where the amount in issue was $60,165);
Gredone, 361 A.2d at 179 (ordering bond of $1,000 where trial ultimately resulted in
money judgments against the defendant totaling over $13,000). Thus, to the extent
that Defendant argues that the increase of the bond was improper because it was based
on the same property used as a basis for the initial bond, we disagree because the
amount of the bond need not necessarily be tied to the value of the property.
{23} 	Defendant directs us to Siravo v. Siravo, 670 So. 2d 983, 985 (Fla. Dist. Ct.
App. 1996), in which the court stated that a writ is not “a substitute for a contempt,
injunction, or other enforcement order, where its purpose is not to prevent a party
from fleeing or removing assets but, rather, to force the party to post security, or
produce assets, that would be used to satisfy a judgment.” But in that case, the court
also expressly stated that a ne exeat bond is “a valuable resource in the arsenal of

15
remedies available to a trial court in order to secure alimony and support.” Id. The
Siravo court found that a ne exeat bond was improper in that case because there was
no evidence of the defendant’s intent to flee the jurisdiction and other remedies, such
as contempt, were available to enforce the court’s judgment. Id. We interpret the
court’s statements to indicate that a ne exeat bond is inappropriate where its only
purpose is to secure assets, rather than to prevent the defendant from fleeing or
dissipating assets. We decline Defendant’s invitation to interpret the holding in Siravo
as a blanket prohibition against a ne exeat bond as used in this case.
{24} 	In any case, the authorities agree on two points related to the bond: that the
amount of the bond is within the district court’s discretion and that the bond amount
may not be excessive or oppressive. Gredone, 361 A.2d at 180 (“As an adjunct to the
trial court’s equitable jurisdiction, the issuance, terms, and implementation of writs
of ne exeat lie within the court’s sound discretion.”); State v. Browne, 142 So. 247,
250 (Fla. 1932) (“Excessive or unreasonable bail should never be required; as the writ
is a purely civil writ, it should not be allowed to be used oppressively or in
unnecessary violation of the defendant’s constitutional right to personal freedom to
go and come as he may please.”). The total bond amount including the increase was
$370,000, well under the total amount of the judgment of approximately $2.5 million.
Further, Defendant does not argue on appeal that the bond amount is excessive or
oppressive. We discern no abuse of discretion in the bond amount.

16
{25} 	This conclusion leads us to Defendant’s second and third arguments having to
do with whether there was substantial evidence that he has an ownership interest in
the Solano property or that he was dissipating assets from New Mexico. The district
court abuses its discretion if it enters findings of fact that are not supported by
substantial evidence. Perkins v. Dep’t of Human Servs., 1987-NMCA-148, ¶ 19, 106
N.M. 651, 748 P.2d 24 (“An abuse of discretion is established if the . . . lower court
has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence.”). When
reviewing for substantial evidence, we adhere to the following principles:
If substantial evidence supports a trial court’s conclusion it will not be
disturbed on appeal. Substantial evidence is such relevant evidence that
a reasonable mind would find adequate to support a conclusion.
Evidence is substantial even if it barely tips the scales in favor of the
party bearing the burden of proof.
Landavazo v. Sanchez, 1990-NMSC-114, ¶ 7, 111 N.M. 137, 802 P.2d 1283 (citations
omitted).
{26} 	In addition, “in deciding whether the finding has substantial support, the court
must view evidence in the light most favorable to support the finding[.]” Duke City
Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMSC-042, ¶ 12, 101 N.M. 291,
681 P.2d 717. We do not review “any evidence unfavorable to the finding” and do
“not weigh conflicting evidence or determine credibility of witnesses.” Id.
{27} 	Defendant does not dispute that he owned the Solano property in December,

17
2011 and that he entered into a real estate contract for sale of the property and
transferred his interest in the property to his wife on December 9, 2011, just days
before judgment was entered in Atherton I. The Attorney General attached a copy of
the real estate contract to its motion to increase the bond and copies of a
“memorandum of real estate contract” and the transfer document were entered into
evidence at the hearing on the motion to increase.
{28} 	As we understand it, Defendant’s argument is that he could not be dissipating
funds from the sale of the Solano property because he does not currently have an
interest in it. This argument is unavailing. Based on the undisputed facts, viewed in
the light most favorable to the district court’s decision, we conclude that the district
court could reasonably find that the sale and transfer of the property themselves
constituted dissipation of that asset. Since the real estate contract indicated that
payments from the sale were continuing at the time of the hearing on the motion to
increase, the district court’s finding that “assets are continuing to be dissipated from
the jurisdiction of this [c]ourt” is also supported by the evidence.
{29} 	Defendant also appears to rely on the fact that the property was sold before
entry of judgment in Atherton I as evidence that the ne exeat order and bond were
improper. But under Section 57-12-17, entry of a judgment is not a prerequisite to
issuance of the writ. Hence, it was not an abuse of discretion for the district court to
consider the sale of the property even though it occurred before the entry of the

1Defendant directs our attention to an affidavit filed with this Court, which is
not part of the record proper. We do not consider evidence not reviewed in the first
instance by the district court. State v. Romero, 1975-NMCA-017, ¶ 2, 87 N.M. 279,
532 P.2d 208 (“Matters outside the record present no issue for review.”). We also
decline to consider documents cited by the Attorney General that were not part of the
record below. See id.
18
judgment and before the application for writ of ne exeat.1
4. 	Due Process
{30} 	Finally, Defendant makes a brief argument that he was denied the due process
of law accorded him by the New Mexico and federal constitutions because he had no
opportunity to be heard before the ne exeat bond was increased. See U.S. Const.
amend. V; N.M. Const. art. II, § 18. Defendant relies on Jacobsen v. Jacobsen, 126
F.2d 13, 14-15 (D.C. Cir. 1942), for the proposition that “since he had denied the
allegations of the [motion for increase], he was further entitled to a full hearing
[including] a full opportunity to introduce oral testimony.” There, the court held that
where “[the defendant] was given no such opportunity, continuing the writ [ne exeat]
in force deprived him of his liberty without due process of law, in violation of the
Fifth Amendment.” Id. at 15. Due process is provided when a defendant has “timely
notice . . . ; a reasonable opportunity to [be heard]; a reasonable opportunity to
confront 	and 	cross-examine 	adverse 	witnesses 	and 	present 	evidence 	. 	. 	. 	;
representation by counsel . . . ; and a hearing before an impartial decisionmaker.” In
re Pamela A.G., 2006-NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746 (internal

19
quotation marks and citation omitted).
{31} 	Defendant acknowledges that this argument was not raised in the district court
and, therefore, was not preserved for appeal. Generally, “[d]ue process claims will not
be addressed when raised for the first time on appeal.” State v. Martinez, 2007-
NMCA-160, ¶ 4, 143 N.M. 96, 173 P.3d 18. Defendant argues that nevertheless we
should review this issue because “it involves the public interest and the fundamental
right[s] of Defendant.” See Rule 12-216(B) NMRA. But, other than asserting that “a
writ of ne exeat is an infringement on a party’s liberty interest[,]” Defendant provides
no reason why this particular due process challenge should be exempt from the
general preservation rule. Similarly, although he asserts that “this case implicates the
public interest because enforcement of the [UPA] is entrusted to the Attorney General
on behalf of the people of New Mexico,” he gives no reason why this fact
distinguishes this matter from any other pursued by a state agency. Thus, we need not
address this argument any further. Cf. Doe v. State, 1975-NMCA-108, ¶ 18, 88 N.M.
347, 540 P.2d 827 (declining to address the respondents’ arguments because they did
not provide “some showing on appeal of the suggested fundamental or jurisdictional
nature of the error”). However, to foreclose any further argument on the issue, we
will address it on its merits.
{32} 	Defendant’s assertion that he was provided no opportunity to be heard on the
motion for increase is flatly contradicted by the record, as is his contention that the

20
Attorney General presented “nothing but innuendo” at the hearing and that the district
court considered “no evidence whatsoever.” Defendant filed a response in opposition
to the motion in which he disputed that he was dissipating assets from New Mexico
and contested the Attorney General’s interpretation of the real estate contract
documenting sale of the Solano property. Moreover, Defendant had notice of and was
present and represented by counsel at the hearing on the motion. There is no indication
in the record that Defendant was denied the opportunity to present witnesses at the
hearing. Finally, the Attorney General submitted a memorandum of the real estate
contract as an exhibit, and Defendant himself submitted an exhibit for the district
court’s review. Defendant’s right to due process of law was not violated.
CONCLUSION
{33} 	For the foregoing reasons, we affirm the district court’s order increasing the
amount of the writ of ne exeat bond.
{34} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
__________________________________
RODERICK T. KENNEDY, Judge

LINDA M. VANZI, Judge
21