March 31, 2011 – Shelley Trinosky v. Peter Johnstone, as Personal Representative of the Estate of Donald L. Trinosky, No. 27,129

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: March 31, 2011

NO. 27,129

SHELLEY TRINOSKY,
Petitioner Appellant,
V.

PETER JOHNSTONE, as Personal Representative
of the estate of DONALD L. 'TRINOSKY, deceased,

Respondent- Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Kennedy & Han, P.C.

Paul J. Kennedy
Dann M. Foster

Albuquerque, NM
for Appellant

Law Office of Peter H. Johnstone, P.C.
Peter H. Johnstone

Albuquerque, NM

for Appellee

OPINION
GARCIA, Judge.
{1} 	This case raises the issue of whether NMSA 1978, Section 40-4-20(B) (1993)
prohibits a district court from exercising its discretion in determining whether to grant
a petitioner’s motion to voluntarily dismiss a legal separation action pursuant to Rule
1-041(A)(2) NMRA following the death of a party to the action. Section 40-4-20(B)
mandates that if a party to a pending legal separation action dies prior to entry of a
final decree, the district court “shall conclude” certain proceedings associated with the
action “as if both parties had survived.” Rule 1-041(A)(2) allows the district court to
exercise its discretion in determining whether to grant a petitioner’s motion to
voluntarily dismiss an action. We determine that a district court may grant a motion
for a voluntary dismissal in a legal separation action and conclude the proceedings
consistent with Section 40-4-20(B). As a result, we reverse the district court’s denial
of Shelley Trinosky’s (Wife’s) motion to voluntarily dismiss the legal separation
action and remand to the district court to exercise its discretion in determining whether
to grant Wife’s motion to dismiss. 	Because we reverse on this ground, we do not
reach the remaining issues raised by Wife on appeal.

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BACKGROUND
{2} 	Wife filed a petition for a legal separation, division of property, spousal
support, and reasonable costs and attorney fees on July 16, 2002. Donald L. Trinosky
(Husband) subsequently filed a response to Wife’s petition and requested discovery,
but Husband did not raise any counter-claims. 	On April 3, 2003, while the legal
separation action was pending and prior to entry of a final decree, Husband died.
{3} 	Husband executed a Last Will and Testament prior to his death, and a separate
probate action is pending that is not the subject of this appeal. On or about June 13,
2003, Husband’s son, Kim S. Trinosky (Son), was originally appointed as the personal
representative of Husband’s estate. 	Peter H. Johnstone (Appellee) subsequently
replaced Son as the personal representative of Husband’s estate.
{4} 	On July 19, 2004, Wife filed a motion to voluntarily dismiss the legal
separation action pursuant to Rule 1-041(A)(2). Wife alleged that prior to Husband’s
death, the parties held themselves out as husband and wife, Wife provided care to
Husband until his death, and that they anticipated a reconciliation. 	Wife further
argued that dismissal of the action would be just and proper, would serve the interests
of judicial economy, and would save the parties substantial litigation costs.
Additionally, Wife contended that since Husband had asserted no counterclaims,
continuation of the legal separation action would serve no purpose but to deplete the

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assets of Husband’s estate. In response, Son denied the majority of Wife’s factual
allegations and argued that “dismissing the action . . . would be contrary to the laws
of the State of New Mexico which require the current proceeding . . . to be concluded
as if [Husband] survived.”
{5} 	At a hearing on September 23, 2004, Wife argued that she filed the petition for
legal separation upon the advice of counsel as a result of other family tensions in order
to preserve her interest in the marital estate. However, Wife testified that the parties
never intended to “divorce,” the parties considered themselves husband and wife
throughout the entire marriage until Husband’s death, and she did not wish to proceed
with the legal separation action. 	Wife further argued that the district court had
discretion to dismiss the action under Rule 1-041(A)(2) and that dismissal would not
prejudice Husband. Wife contended that she was not asking the district court to abate
the proceedings in violation of Section 40-4-20(B), but that as part of the continuing
litigation, Wife was moving to voluntarily dismiss the petition as if Husband were still
alive.
{6} 	In response, Son argued that Section 40-4-20(B) mandated the conclusion of
the proceedings and that the district court had no discretion to grant dismissal of the
action under Rule 1-041(A)(2). Son also disputed Wife’s allegation that the parties
intended to reconcile.

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{7} 	Although the district court briefly questioned the parties regarding whether
dismissal would prejudice Husband, the district court ultimately denied the motion to
dismiss on grounds that Section 40-4-20(B) controlled and mandated continuation of
the proceedings.
{8} 	At a subsequent hearing, the district court considered whether to grant an
interlocutory appeal regarding the potential conflict between Section 40-4-20(B) and
Rule 1-041(A)(2). 	Ultimately, the district court issued a memorandum order
explaining its denial of Wife’s motion to dismiss and determining that the proceedings
would continue to trial. The district court recognized that the use of the term “shall”
in Section 40-4-20(B) conveyed an express duty on the district court and ultimately
concluded that the court “must proceed pursuant to . . . Section 40-4-20(B) to finalize
the division of the community property pursuant to the requested legal separation.”
{9} 	Following a trial on the merits, the district court ultimately entered a decree
granting a legal separation, awarding spousal support, dividing community property,
and awarding attorney fees on August 30, 2006. The court stayed execution of the
judgment pending this appeal. 	Wife subsequently raised seven issues on appeal,
including whether the district court abused its discretion by denying her motion for
voluntary dismissal pursuant to Rule 1-041(A)(2).
DISCUSSION

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{10} 	Wife argues that the district court abused its discretion in denying her motion
to voluntarily dismiss this action pursuant to Rule 1-041(A)(2). Specifically, Wife
contends that the court erred by interpreting Section 40-4-20(B) to “override” Rule
1-041(A)(2) and mandate the continuance of the proceedings. Wife further contends
that the district court failed to determine whether dismissal of the action would
adversely affect the rights of the opposing party pursuant to Rule 1-041(A)(2), and
that absent such a determination, the district court abused its discretion by denying the
motion to dismiss.
Statutory Interpretation of Section 40-4-20(B)
{11} 	We first determine whether Section 40-4-20(B) precludes voluntary dismissal
under Rule 1-041(A)(2) as a means of concluding the proceedings associated with a
legal separation action after the death of one of the parties. “The meaning of language
used in a statute is a question of law that we review de novo.” United Rentals Nw.,
Inc. v. Yearout Mech., Inc., 2010-NMSC-030, ¶ 7, 148 N.M. 426, 237 P.3d 728
(internal quotation marks and citation omitted). “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.
Pursuant to the Uniform Statute and Rule Construction Act, “[t]he text of a statute or
rule is the primary, essential source of its meaning.” 	NMSA 1978, § 12-2A-19

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(1997). As a result, we first examine “the plain language of the statute, giving the
words their ordinary meaning, unless the Legislature indicates a different [meaning]
was intended.” 	N.M. Indus. Energy Consumers v. N.M. Pub. Reg. Comm’n, 2007-
NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “[W]hen a statute contains language
which is clear and unambiguous, we must give effect to that language and refrain from
further statutory interpretation.” Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 37,
147 N.M. 583, 227 P.3d 73 (internal quotation marks and citation omitted). “Only if
an ambiguity exists will we proceed further in our statutory construction analysis.”
Marbob Energy Corp., 2009-NMSC-013, ¶ 9.
{12} 	Section 40-4-20(B) provides in pertinent part that, upon the filing and service
of a petition for separation, division of property or debt, or spousal support,
if a party to the action dies during the pendency of the action, but prior
to the entry of a decree granting . . . separation, . . . 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.
{13} 	“By enacting Section 40-4-20(B), the Legislature departed from the common
law rule that a pending divorce action abates when a party to the action dies before the
entry of a final divorce decree.” 	Oldham v. Oldham, 2011-NMSC-007, ¶ 13, ___
N.M. ___, ___ P.3d ___. Under the common law rule of abatement, if a party to a
dissolution action died before the entry of a final decree, the proceedings terminated

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as a matter of law and the court was divested of jurisdiction over the matter, including
jurisdiction over any property rights. Karpien v. Karpien, 2009-NMCA-043, ¶ 6, 146
N.M. 188, 207 P.3d 1165. Similarly, under the common law rule of abatement, if a
party to a legal separation action died prior to entry of a final decree, the court was
divested of jurisdiction over the matter. See, e.g., Cregan v. Clark, 658 S.W.2d 924,
927 (Mo. App. 1983) (reasoning that either an action for dissolution of marriage or
legal separation abates upon the death of one of the parties prior to final judgment).
{14} 	Section 40-4-20(B) departs from the common law rule of abatement by
expressly providing that “if a party to [a divorce or separation] action dies during the
pendency of the action, . . . the proceedings for the determination, division and
distribution of marital property rights and debt, distribution of espousal or child
support or determination of paternity shall not abate.” 	(Emphasis added.) 	“If” is
defined as “[i]n the event that[,]” “[g]rant[ed] that[,]” or “[o]n the condition that[.]”
American Heritage Dictionary of the English Language 	872 (4th ed. 2000).
Moreover, as defined by the Uniform Statute and Rule Construction Act, the words
“‘shall not’ prohibit the exercise of a power, authority, privilege or right.” NMSA
1978, § 12-2A-4(C) (1997). 	Finally, “abatement” is defined as (1) “[t]he act of
eliminating or nullifying” and (2) “[t]he suspension or defeat of a pending action for
a reason unrelated to the merits of the claim.” 	Black’s Law Dictionary 3 (9th ed.

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2009).
{15} 	We interpret Section 40-4-20(B) to prohibit the abatement of the specific types
of proceedings listed in Subsection (B) as a result of the death of one of the parties.
In contrast to the common law rule, Section 40-4-20(B) provides that the death of one
of the parties to a divorce or separation action does not divest a domestic relations
court of jurisdiction over proceedings for the division of marital property, distribution
of support, and determination of paternity. 	See Oldham, 2011-NMSC-007, ¶ 25
(reasoning that the domestic relations court retains jurisdiction to conclude the three
specific tasks of dividing and distributing marital property and debts, distributing
espousal and child support, and determining paternity after the death of one of the
parties).
{16} 	Section 40-4-20(B) further provides that the domestic relations court “shall
conclude the proceedings as if both parties had survived.” (Emphasis added.) The use
of the word “shall” mandates conclusion of the proceedings for the division of
property, distribution of support, and determination of paternity. See Oldham, 2011-
NMSC-007, ¶ 32 (determining that “[c]oncluding a Section 40-4-20(B) property
division is mandatory”); see also Marbob Energy Corp., 2009-NMSC-013, ¶ 22
(explaining that the word “‘shall’ indicates that [a] provision is mandatory”).
{17} 	If both parties had survived, a conclusion of the proceedings associated with the

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legal separation action could have been effected through a variety of different means,
including but not limited to a judgment following a trial on the merits, a decree
incorporating a marital settlement agreement, or a voluntary dismissal of the action.
See, e.g., Karpien, 2009-NMCA-043, ¶¶ 1-3 (reviewing a judgment regarding the
division of property following a trial on the merits in a divorce action); Edens v.
Edens, 2005-NMCA-033, ¶¶ 1, 14, 137 N.M. 207, 109 P.3d 295 (reviewing a
judgment reached through the district court’s incorporation of a marital settlement
agreement into a final divorce decree); Becenti v. Becenti, 2004-NMCA-091, ¶¶ 9, 14,
136 N.M. 124, 94 P.3d 867 (reasoning that a petitioner’s voluntary dismissal of a
divorce action terminates a court’s jurisdiction over the matter and precludes
reinstatement of the action).
{18} 	Furthermore, voluntary dismissal under Rule 1-041(A)(2) would have been one
permissible means of concluding the proceedings associated with the legal separation
action if both parties had survived. Pursuant to Rule 1-041(A)(2), a district court may
in its discretion grant a petitioner’s motion to voluntarily dismiss an action after an
answer or other responsive pleading has been filed. See Rule 1-041(A)(2) (providing
that after an answer or other responsive pleading has been filed, a district court may
on motion of the plaintiff order voluntary dismissal “upon such terms and conditions
as the court deems proper”); see also Rule 1-041(F) (stating that Rule 1-041 is

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applicable to all civil cases filed in district court with several inapplicable exceptions);
see also Pacheco v. Cohen, 2009-NMCA-070, ¶¶ 12-14, 17, 146 N.M. 643, 213 P.3d
793 (reasoning that the district court had the discretion to grant a voluntary motion to
dismiss a civil action under Rule 1-041(A)(2) and subsequently reinstate that action
pursuant to the conditions for the voluntary dismissal).
{19} 	Section 40-4-20(B) does not limit any of the subsequent means of concluding
the proceedings beyond its prohibition of abatement of the proceedings based upon
the death of one of the parties. We “will not read into a statute or ordinance language
which is not there, particularly if it makes sense as written.” High Ridge Hinkle Joint
Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599
(internal quotation marks and citation omitted). As a result, we determine that Section
40-4-20(B) does not preclude voluntary dismissal under Rule 1-041(A)(2) as a means
of concluding the proceedings associated with a legal separation action after the death
of one of the parties.
Denial of Motion for Voluntary Dismissal Under Rule 1-041(A)(2)
{20} 	We next examine whether the district court abused its discretion in denying
Wife’s motion for voluntary dismissal pursuant to Rule 1-041(A)(2). Wife argues that
absent sufficient evidence or findings that dismissal would prejudice the opposing
party, the district court abused its discretion by denying her motion to dismiss. Wife

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further contends that the district court abused its discretion by misapprehending
Section 40-4-20(B) to mandate continuance of the proceedings and “override” Rule
1-041(A)(2).
{21} 	Rule 1-041(A)(2) provides that after service of an answer or other responsive
pleading by the opposing party, “an action shall not be dismissed on motion of the
plaintiff except upon order of the court and upon such terms and conditions as the
court deems proper.” If, however, a counterclaim, cross-claim, or third-party claim
was filed prior to service of the motion to dismiss, “the action shall not be dismissed
against the party’s objection unless the counterclaim, cross-claim or third-party claim
can remain pending for independent adjudication by the court.” 	Id. 	Because no
counterclaim, cross-claim, or third-party claim was filed in this case, the portion of the
rule relating to objections of another party is inapplicable.
{22} 	Initially, we note the limited precedent interpreting Rule 1-041(A)(2). Wife
relies on Andrews v. French, 17 N.M. 615, 615, 131 P. 996, 996 (1913), which states
the common law rule that “[a] party usually has the right to discontinue any action or
proceeding instituted by him, unless substantial rights of other parties have accrued
and injustice will be done them by permitting the discontinuance.” 	In contrast,
Husband relies on Becenti, 2004-NMCA-091, ¶¶ 7, 12, which interprets Rule 1-
041(A)(1)(a) as a bright-line rule that allows a plaintiff to unilaterally dismiss a case

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before an answer or responsive pleading has been filed. 	In light of our limited
precedent specifically interpreting Rule 1-041(A)(2), we look to interpretation of the
federal counterpart of the rule for guidance. 	See Becenti, 2004-NMCA-091, ¶ 10
(looking to federal law for guidance in interpreting Rule 1-041(A)(1)(a) after
recognizing that this Court may look to federal law for guidance in interpreting rules
of civil procedure identical to their federal counterparts); see also Fed. R. Civ. P.
41(a)(2) (providing that after service of an answer or motion for summary judgment,
“an action may be dismissed at the plaintiff’s request only by court order, on terms
that the court [deems] proper”).
{23} 	We review the district court’s denial of Wife’s motion to dismiss for an abuse
of discretion. See Rule 1-041(A)(2) (granting the district court discretion to order a
dismissal of an action upon motion of the plaintiff “upon such terms and conditions
as the court deems proper”); see also County of Santa Fe v. Pub. Serv. Co. of N.M.,
311 F.3d 1031, 1047 (10th Cir. 2002) (stating that federal courts “review a district
court’s grant of a Rule 41(a)(2) motion for abuse of discretion”). 	“An abuse of
discretion will be found when the [district] court’s decision is clearly untenable or
contrary to logic and reason.” 	Pacheco, 2009-NMCA-070, ¶ 13 (alteration in
original) (internal quotation marks and citation omitted). “A [district] court abuses
its discretion when it exercises its discretion based on a misunderstanding of the law.”

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Chavez v. Lovelace Sandia Health System, Inc., 2008-NMCA-104, ¶ 25, 144 N.M.
578, 189 P.3d 711. Consequently, “[e]ven when we review for an abuse of discretion,
our review of the application of the law to the facts is conducted de novo.
Accordingly, we may characterize as an abuse of discretion a discretionary decision
that is premised on a misapprehension of the law.” Id. (internal quotation marks and
citation omitted). Finally, we apply a de novo standard of review to the extent that we
are required to interpret the rules of civil procedure. Becenti, 2004-NMCA-091, ¶ 6.
{24} 	The federal counterpart to Rule 1-041(A)(2) “is designed primarily to prevent
voluntary dismissals which unfairly affect the other side, and to permit the imposition
of curative conditions.” 	Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005)
(internal quotation marks and citation omitted). 	“Absent legal prejudice to the
defendant, the district court normally should grant such a dismissal.” 	Ohlander v.
Larson, 114 F.3d 1531, 1537 (10th Cir. 1997) (internal quotation marks and citation
omitted).
{25} 	Legal “[p]rejudice does not arise simply because a second action has been or
may be filed against the defendant.” Brown, 413 F.3d at 1124. Instead, “prejudice is
a function of other, practical factors including: 	[T]he opposing party’s effort and
expense in preparing for trial; excessive delay and lack of diligence on the part of the
movant; insufficient explanation of the need for a dismissal; and the present stage of

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the litigation.” Id. (internal quotation marks and citation omitted). “These factors are
neither exhaustive nor conclusive[,]” and the district “court should be sensitive to
other considerations unique to the circumstances of each case.” Id. Moreover, “[e]ach
factor need not be resolved in favor of the moving party for dismissal to be
appropriate, nor need each factor be resolved in favor of the opposing party for denial
of the motion to be proper.” Ohlander, 114 F.3d at 1537. Rather, “[i]n reaching its
conclusion, [t]he district court should endeavor to insure substantial justice is
accorded to both parties, and therefore the court must consider the equities not only
facing the defendant, but also those facing the plaintiff.” 	County of Santa Fe, 311
F.3d at 1048 (second alteration in original) (internal quotation marks and citation
omitted). Finally, we note that “the important factors in determining legal prejudice
are those involving the parties, not the court’s time or effort spent on the case.”
Ohlander, 114 F.3d at 1537.
{26} 	Here, it is unclear whether the district court exercised its discretion to determine
whether dismissal would prejudice Husband and to consider the equities facing both
parties. In response to Wife’s argument that dismissal would not prejudice Husband
and that no evidence of prejudice to Husband had been presented, the district court
briefly questioned the parties regarding whether dismissal would prejudice Husband.
However, Son argued that the district court had no discretion to determine whether to

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grant Wife’s motion to dismiss because Section 40-4-20(B) mandated continuance of
the proceedings. Moreover, neither the district court’s verbal or written findings and
conclusions include any determination regarding whether dismissal would prejudice
Husband or how granting or denying dismissal would affect the equities facing both
parties. 	Instead, the district court’s verbal and written findings indicate that the
district court ultimately denied the motion to dismiss on grounds that Section 40-4-
20(B) controlled and mandated that the court proceed to trial in order to finalize
division of the community property.
{27} 	Based on the record, it appears that the district court misapprehended Section
40-4-20(B) to prohibit the court from exercising any discretion in considering whether
to grant Wife’s motion for voluntary dismissal under Rule 1-041(A)(2). As a result,
we reverse and remand to the district court to consider the above-listed factors and
exercise its discretion in determining whether granting Wife’s motion for voluntary
dismissal would prejudice Husband. See Ohlander, 114 F.3d at 1537-38 (reasoning
that a district court’s failure to consider the applicable legal standard under the federal
counterpart to Rule 1-041(A)(2) constitutes an abuse of discretion and may serve as
a basis for remanding to the district court to apply the correct legal standard); see also
Gilmore v. Gilmore, 2010-NMCA-013, ¶ 53, 147 N.M. 625, 227 P.3d 115 (remanding
to the district court to reconsider its method of calculating a wife’s interest in a

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husband’s retirement benefits where the district court felt bound by what it believed
was a statutory mandate and did not appear to exercise its discretion). Additionally,
the district court should take into consideration the unique circumstances of this case,
including recent guidance in Oldham regarding the interrelationship between domestic
relations proceedings that continue under Section 40-4-20(B) and Husband’s probate
proceedings following his death. See Oldham, 2011-NMSC-007, ¶¶ 12-30. Finally,
the district court should endeavor to accord substantial justice to both parties,
considering the equities not only facing Husband, but also those facing Wife. 	See
County of Santa Fe, 311 F.3d at 1048.
CONCLUSION
{28} 	For the foregoing reasons, we reverse the district court’s denial of Wife’s
motion for voluntary dismissal pursuant to Rule 1-041(A)(2) and remand to the
district court for further proceedings consistent with this opinion.
{29} 	IT IS SO ORDERED.
___________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

MICHAEL E. VIGIL, Judge

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