De-Grimaldi v. Eaton

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 JEAN-CLAUDE DE-GRIMALDI, 3 Petitioner-Appellee, 4 v. No. 35,733 5 LEITH EATON, 6 Respondent-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Sylvia F. LaMar, District Judge 9 Jean-Claude De-Grimaldi 10 Corona Del Mar, CA 11 Pro Se Appellee 12 Sitterly Law Firm, L.L.C. 13 Nicholas Sitterly 14 Albuquerque, NM 15 L. Helen Bennett 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 ZAMORA, Judge. 1 {1} Respondent appeals from an annulment decree of marriage and permanent 2 injunction. We issued a calendar notice proposing to affirm. Respondent has filed a 3 memorandum in opposition. We affirm the district court. 4 {2} Issue 1: Respondent continues to challenge the district court’s decision to 5 invalidate the marriage, as opposed to dissolution. [MIO 5] As our Supreme Court has 6 observed, “[f]or a marriage to be valid, it must be formally entered into by contract 7 and solemnized before an appropriate official.” Merrill v. Davis, 1983-NMSC-070 , 8 ¶ 8, 100 N.M. 552 , 673 P.2d 1285 ; see NMSA 1978, § 40-1-1 (1862-1863) (stating 9 that marriage is a civil contract, requiring consent of the contracting parties). In this 10 case, Petitioner’s claim of fear was essentially an argument that there was never a 11 “meeting of the minds,” which “goes to the question of whether a contract was formed 12 in the first place.” B & W Constr. Co. v. N.C. Ribble Co., 1987-NMSC-019 , ¶ 22, 105 13 N.M. 448 , 734 P.2d 226 (internal quotation marks omitted). Under the circumstances 14 here, the “meeting of the minds” issue needed to be resolved on the basis of whether 15 Petitioner’s testimony was believable. Given that this Court lacks any opportunity to 16 observe demeanor, we cannot weigh the credibility of live witnesses. See Tallman v. 17 ABF (Arkansas Best Freight), 1988-NMCA-091 , ¶ 3, 108 N.M. 124 , 767 P.2d 363 , 18 holding modified on other grounds by Delgado v. Phelps Dodge Chino, Inc., 2001- 19 NMSC-034, 131 N.M. 272 , 34 P.3d 1148 . As such, under out standard of review this [2] 1 Court must defer to the district court, sitting as fact-finder and its decision to believe 2 Petitioner’s testimony and that the marriage contract was never formed because there 3 was no “meeting of the minds.” 4 {3} To the extent that Respondent is challenging [MIO 9-10] the district court’s 5 reliance on Petitioner’s mental state at the time in question, we believe that the 6 complaint did not need to be amended because this was simply a part of Petitioner’s 7 contract argument that was an inherent part of his annulment complaint. In addition, 8 there was no need for expert evidence, because the district court could rely on 9 Petitioner’s own testimony with respect to his general mental state at the time the 10 marriage contract was formed. 11 {4} Issue 2: Respondent continues to argue that the district court lacked personal 12 jurisdiction in this case. [MIO 15] We conclude that Respondent waived the personal 13 jurisdiction challenge. Although Respondent moved to dismiss for lack of personal 14 jurisdiction on the same day her attorney filed an entry of appearance [RP 47, 48], she 15 subsequently engaged in the merits of the action prior to the court’s ruling on the 16 issue. In fact, one of her complaints in the motion for reconsideration [RP 439] was 17 that the court failed to rule on the personal jurisdiction issue until late in the litigation. 18 Because she chose to engage in the litigation beyond her initial objection, we hold that 19 she waived personal jurisdiction. See Barreras v. N.m. Motor Vehicle Div., [1] 2005-NMCA-055, ¶ 7 , 137 N.M. 435 , 112 P.3d 296 (stating that general appearance 2 waives challenge to personal jurisdiction); Guthrie v. Threlkeld Co., 1948-NMSC- 3 017, ¶ 8, 52 N.M. 93 , 192 P.2d 307 (stating that “any action on the part of the 4 defendant, except to object to the jurisdiction, which recognizes the case as in court, 5 will amount to a general appearance” (internal quotation marks and citation omitted)). 6 {5} Issue 3: Respondent challenges the district court’s ruling that she be 7 permanently enjoined “from using in connection with her name, any part of 8 Petitioner’s name, titles, or references associated to the Principality of Monaco.” [RP 9 436; MIO 17] An injunction is an equitable remedy, left to the sound discretion of the 10 district court. See Cafeteria Operators, L.P. v. Coronado-Santa Fe Assocs., L.P., [11] 1998-NMCA-005, ¶ 19 , 124 N.M. 440 , 952 P.2d 435 . Here, under the unique 12 circumstances of this case, we do not believe that the district court abused its 13 discretion, because Petitioner’s claim was essentially that Respondent had taken 14 advantage of him, and was continuing this abuse by appropriating his name and 15 alleged titles. Cf. In re Mokiligon, 2005-NMCA-021, ¶ 8 , 137 N.M. 22 , 106 P.3d 584 16 (observing that name changes may be denied where there is attempted fraud on the 17 public). With respect to Respondent’s claim that she did no harm, we note that harm 18 is one of many factors to be considered. See Wilcox v. Timberon Protective Ass'n, [19] 1990-NMCA-137 , ¶ 29, 111 N.M. 478 , 806 P.2d 1068 , abrogated on other grounds [4] 1 by Agua Fria v. Rowe, 2011-NMCA-054 , 149 N.M. 812 , 255 P.3d 390 . In light of the 2 district court’s finding of misconduct on Respondent’s part, we believe that the district 3 court could craft a remedy that was specifically directed to the nature of the 4 misconduct and any alleged fruits that it bore. 5 {6} For the reasons set forth above, we affirm. 6 {7} IT IS SO ORDERED. [7] 8 M. MONICA ZAMORA, Judge 9 WE CONCUR: [10] 11 LINDA M. VANZI, Chief Judge [12] 13 JONATHAN B. SUTIN, Judge