February 02, 2009 – Mark Corrado Galassi v. Rosalia Guilia Galassi, No. 27,784

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 2, 2009
NO. 27,784
MARK CORRADO GALASSI,
Petitioner-Appellee,
v.
ROSALIA GIULIA GALASSI,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge
Jerome M. Ginsburg
Santa Fe, NM
for Appellee
Mary Jo Snyder
Santa Fe, NM
for Appellant

OPINION
BUSTAMANTE, Judge.
{1} 	Applying the presumption that “[t]he remarriage of a spouse terminates spousal
support,” the district court stopped Rosalia Giulia Galassi’s (Wife) spousal support
because she had remarried and because she did not demonstrate exceptional
circumstances justifying continued support. We reverse and hold that spousal support
designated as nonmodifiable under NMSA 1978, Section 40-4-7(B)(2)(b) (1997) is
not subject to the presumption of termination upon the remarriage of the receiving
spouse.
FACTS AND PROCEDURES
{2} 	Wife and Mark Corrado Galassi (Husband) were married in 1986. 	The
marriage produced one child. In January 2004 the parties filed a marital settlement
agreement (MSA). Both parties were represented by counsel. The MSA was ratified
by the district court in its final decree of dissolution of marriage and was made “an
integral, inseparable part of [the] Decree.”
{3} 	The MSA included the following provisions for spousal support:
In addition to the lump sum alimony distribution set forth in
Section III, Paragraph 3 at page 5, [Husband] shall pay spousal support
in the amount of $2,100 per month for twelve (12) months beginning
January 20, 2004. 	Beginning January 20, 2005, [Husband] shall pay
spousal support in the amount of $2,000 per month for twelve months.
Beginning January 20, 2006, [Husband] shall pay spousal support in the

2
amount of $1,900 per month for twelve months. Beginning January 20,
2007 through December 20, 2008, [Husband] shall pay spousal support
in the amount of $1,500 per month. The spousal support shall be non-
modifiable for five (5) years, after which it shall terminate.
There was no mention made in the MSA or in the final decree as to the effect, if any,
of Wife’s remarriage. The parties apparently did not discuss the potential effect of
remarriage during the negotiations leading up to the final form of the MSA.
{4} 	Wife remarried in October 2005, and in November, Husband moved to
terminate spousal support. In August 2006 the district court heard arguments on the
motion. Interestingly, the parties provided no testimony; the hearing was limited to
counsel’s arguments. 	Following the August hearing, the district court entered an
interim order which included the following conclusions:
3. 	The common law rule and New Mexico case law is that
spousal support may terminate upon the remarriage of the recipient
spouse. The recipient spouse may show extraordinary circumstances as
to why it should not terminate.
4. 	The designation of the spousal support as nonmodifiable as
to amount and duration without reference to remarriage is insufficient to
waive the common law rule concerning the termination of spousal
support upon remarriage.
{5} 	The district court later held an evidentiary hearing “to determine whether
extraordinary circumstances exist for spousal support to continue.” Following that
hearing, the district court entered its final findings of fact and conclusions of law and

3
judgment. The district court found that Wife’s financial circumstances had improved
since the parties’ divorce, and thus there were no exceptional circumstances
necessitating continuation of spousal support. The district court concluded that the
MSA provided for “transitional alimony” allowed under Section 40-4-7(B)(1)(b).
While noting that “transitional alimony can be designated as non-modifiable as to
term and/or amount,” and in accord with its interim order, the district court also
concluded as a matter of law that:
B. 	The remarriage of a spouse terminates spousal support if the
recipient spouse fails to prove that there are exceptional circumstances
justifying continued spousal support.
C. 	Termination and modification are distinct terms with
distinct meanings under the law.
ANALYSIS
{6} 	Husband accurately notes that in Kuert v. Kuert, 60 N.M. 432, 292 P.2d 115
(1956), our Supreme Court held that remarriage creates a prima facie case that
alimony should stop unless the recipient shows exceptional conditions calling for
continued support. Id. at 439-40, 292 P.2d at 120. Husband argued below, and argues
here, this presumption still applies. 	Wife argues that the rule in Kuert has been
displaced by the 1993 and 1997 amendments to the statutes governing spousal
support, specifically Sections 40-4-7(B)(1) and (B)(2). The district court agreed with

4
Husband. We conclude that Wife’s position is closer to the mark.
{7} 	When Kuert was decided in 1956, the statutory provision relating to alimony
provided:
on final hearing, [the court] may allow the wife such a reasonable portion
of the husband’s separate property, or such a reasonable sum of money
to be paid by the husband, either in a single sum, or in instalments [sic],
as alimony, as under the circumstances of the case may seem just and
proper; and may modify and change any order in respect to alimony
allowed the wife, whenever circumstances render such change proper[.]
NMSA 1953, § 22-7-6 (Vol. 5, 1943). This provision, for the most part, remained
unchanged from 1941 to 1973 when it was amended to divide the material into
subsections and to incorporate certain phraseology, punctuation, and style changes.
1973 N.M. Laws, ch. 319, § 7. The substance of the provision did not change except
to allow awards of alimony to either spouse. NMSA 1953, § 22-7-6(B)(1) to (3) (Vol.
5, 1975 Pocket Supp.).
{8} 	In 1993 the Legislature rewrote Subsections (B)(1) and (B)(2) of the statute.
1993 N.M. Laws, ch. 144, § 1. The new statute now provides:
B. 	On final hearing, the court:
(1) 	may allow either party such a reasonable portion of
the spouse’s property or such a reasonable sum of money to be paid by
either spouse either in a single sum or in installments, as spousal support
as under the circumstances of the case may seem just and proper,
including a court award of:

5
(a) 	rehabilitative spousal support that provides the
receiving spouse with education, training, work experience or other
forms of rehabilitation that increases the receiving spouse’s ability to
earn income and become self-supporting. The court may include a
specific rehabilitation plan with its award of rehabilitative spousal
support and may condition continuation of the support upon compliance
with that plan;
(b) 	transitional spousal support to supplement the
income of the receiving spouse for a limited period of time; provided that
the period shall be clearly stated in the court’s final order;
(c) 	spousal support for an indefinite duration;
(d) 	a single sum to be paid in one or more
installments that specifies definite amounts, subject only to the death of
the receiving spouse; or
(e) 	a single sum to be paid in one or more
installments 	that 	specifies 	definite 	amounts, 	not 	subject 	to 	any
contingencies, including the death of the receiving spouse;
(2) 	may:
(a) 	modify and change any order in respect to
spousal support awarded pursuant to the provisions of Subparagraph (a),
(b) or (c) of Paragraph (1) of this subsection whenever the circumstances
render such change proper; or
(b) 	designate spousal support awarded pursuant to
the provisions of Subparagraph (a) or (b) of Paragraph (1) of this
subsection as nonmodifiable with respect to the amount or duration of
the support payments[.]
Section 40-4-7(B).
{9} 	Apart 	from 	changing 	nomenclature 	(“spousal 	support” 	for 	“alimony”)
Subsection (B)(1) remained essentially unchanged. The addition of Subsections (a)
through (e), however, worked a dramatic change in the statute. Whether these changes
had an effect on the rule represented by Kuert is a question of law which we review

6
de novo. See Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5,
124 N.M. 405, 951 P.2d 1066.
{10} 	The new provisions describe five categories or types of spousal support that a
district court may order. Section 40-4-7(B)(1). Of the five, only Subsection (B)(1)(c)
allowing “support for an indefinite duration” can be analogized to the support allowed
under earlier versions of the statute. 	The other four are entirely new. 	The
rehabilitative support allowed under Subsection (a) on its face is designed to aid in
increasing the receiving spouse’s ability to “earn income and become self-supporting”
and may be conditioned on compliance with a rehabilitation plan. 	Transitional
support under Subsection (b) allows an award designed to supplement the receiving
spouse’s income for a stated period. 	The transitional support provision does not
include any condition on receipt of support other than a definite term. Subsections (d)
and (e) allow an award of a single sum payable in one or more installments. Under
Subsection (d) single sum support stops “only” upon the death of the receiving spouse.
Under Subsection (e), even the death of the receiving spouse does not end the
obligation to pay the single sum agreed to.
{11} 	In addition to creating four new categories of spousal support, the Legislature
revised the statute with regard to modifications of spousal support. The prior statute

7
generally allowed the district court to “modify and change any order in respect to
alimony allowed either spouse, whenever circumstances render such change proper[.]”
Section 22-7-6(B)(2) (1975 Pocket Supp.). 	The new statute includes a similar
modification provision covering rehabilitative, transitional, and indefinite spousal
support. Section 40-4-7(B)(2)(a). However, and most pertinent to this case, the new
provision also allows the district court to designate an award of rehabilitative or
transitional support “as nonmodifiable with respect to the amount or duration of the
support payments[.]” Section 40-4-7(B)(2)(b).
{12} 	The district court determined that the spousal support agreed to by the parties
in the MSA constituted “transitional alimony.” The MSA provides that the spousal
support shall be “non-modifiable for five (5) years, after which it shall terminate.” The
narrow question for us is whether the new statutory authority to declare transitional
spousal support nonmodifiable overrides the presumption represented by Kuert. We
hold that it does.
{13} 	“In interpreting statutes, we seek to give effect to the Legislature’s intent, and
in determining intent we look to the language used and consider the statute’s history
and background.” Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764,
768-69, 918 P.2d 350, 354-55 (1996). The 1993 amendments we detail above were

8
not mere adjustments at the margins of New Mexico spousal support law and practice.
The Legislature substantially reworked the field. 	It created—or recognized and
allowed—three new types of support: rehabilitative, transitional, and two types of
single sum support payable in installments. Section 40-4-7(B)(1)(a), (b), (d), (e). And
as to the three new types of support, the Legislature recognized and provided
mechanisms that the district courts can use at the time the support is ordered to help
assure the stability and continuity of the award.
{14} 	Under 	the 	superceded 	statute, 	and 	under 	Kuert, 	spousal 	support 	was
presumptively subject to revision and modification at any time as circumstances
warranted. 	Section 40-4-7(B)(2)(a) allows that approach to continue. 	In contrast
under the new statute, the district court can opt to limit the parties and its own future
discretion 	at 	inception 	by 	declaring 	rehabilitative 	and 	transitional 	support
“nonmodifiable.” Section 40-4-7(B)(2)(b). Limiting at the outset the circumstances
under which awards of spousal support may be changed is new in the statute.
{15} 	Courts normally assume that the Legislature is informed as to existing statutory
and common law when it acts. 	See generally Benavidez v. Sierra Blanca Motors,
1996-NMSC-045, 122 N.M. 209, 213, 922 P.2d 1205, 1209 (holding that amendment
to the Workers’ Compensation Act effectively overruled prior case law concerning the

9
eligibility of state prisoners for workers’ compensation benefits); Bettini v. City of Las
Cruces, 82 N.M. 633, 635, 485 P.2d 967, 969 (1971) (holding that Legislature did not
allow municipalities to withhold utility service to subsequent owners of property
thereby abrogating a prior Supreme Court opinion). In addition, courts assume that
when the Legislature enacts a new statute “it intended to establish new law or to
change law as it previously existed.” Leyba v. Renger, 114 N.M. 686, 688, 845 P.2d
780, 782 (1992) (holding that enactment of the Review Organization Immunity Act
abrogated the absolute immunity accorded peer review proceedings in prior case law).
Paraphrasing our Supreme Court in Leyba, the Legislature must have intended its
provision for nonmodifiability of transitional spousal support to mean something. Id.
{16} 	Taking into account the innovations introduced by the 1993 amendments
including the power of the district court to choose to retain or to restrain its power to
modify and change spousal support orders, we conclude that the approach represented
by Kuert must yield to an order entered pursuant to Section 40-4-7(B)(2)(b).
{17} 	Our opinion in Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295,
provides a readily adaptable model for how courts should analyze a request for a
change in nonmodifiable spousal support. In Edens the husband moved to set aside
the explicitly nonmodifiable spousal support provisions of his divorce judgment

10
pursuant to the provisions of Rule 1-060 (B)(1), (3), (5), and (6) NMRA. 	Edens,
2005-NMCA-033, ¶ 14. Consistent with Rule 1-060(B) practice, the court in Edens
placed the burden of persuasion on the party seeking a change, emphasizing: (1) the
provision of the parties’ MSA unambiguously declaring support to be “nonmodifiable
. . . pursuant to Sections 40-4-7(B)(1)(d) and 40-4-7(B)(2)(b) NMSA 1995.”
(Emphasis omitted). 	Edens, 2005-NMCA-033, ¶¶ 15, 16; (2) husband’s “free and
conscious choice” to agree to nonmodifiable support. Id. ¶ 22; (3) the importance of
enforcing stipulated agreements in the face of perhaps “unwise or unfortunate” later
developments. Id.; (4) that MSAs providing for nonmodifiable lump sum support are
not unconscionable. Id. ¶ 25; and (5) the importance of the finality judgments. Id. ¶
23. In short, a request to change nonmodifiable support should follow Rule 1-060(B)
practice with emphasis on the enforcibility of MSAs entered into pursuant to Section
40-4-7(B).
{18} 	We are aware that Edens involved a lump or single sum award under Section
40-4-7(B)(1)(d), but the marriage settlement agreement in Edens also referred to
Section 40-4-7(B)(2)(b). Edens, 2005-NMCA-033, ¶ 15. In addition, as is the case
here and the normal practice in these cases, the parties’ settlement agreement was
incorporated into the decree of divorce as a final judgment. Id. ¶ 8. In any event, we

11
perceive no reason arising from the structure or language of the statute or any reason
based on any policy consideration that would drive us to treat Section 40-4-7(B)(2)(b)
nonmodifiable support differently from Section 40-4-7(B)(1)(d) or (e) nonmodifiable
single sum support.
{19} 	We are also aware that Edens appears to indicate that support ordered under
Section 40-4-7(B)(1)(a), (b), and (c) may be subject to modification under Section 40-
4-7(F). Edens, 2005-NMCA-033, ¶ 27. This observation was dicta in the context of
Edens, and we are not bound by it. Edens simply did not address—because the issue
was not before the court—the effect that designating support to be nonmodifiable
under Section 40-4-7(B)(2)(b) would have on its comment. In addition, Section 40-4-
7(F) would not apply to this case because we are not dealing with a marriage that
lasted twenty years or more.
{20} 	Husband draws a distinction between modification and termination of support,
essentially arguing that if the statute was intended to affect the common law approach
of Kuert, it would have said so more directly. We disagree with this latter argument
based on our analysis above. 	The same argument could be directed at single sum
support awarded under Sections 40-4-7(B)(1)(d) or (e). 	They too do not mention
remarriage and yet it would be impossible to hold that they do not abrogate Kuert

12
without bending their language beyond recognition.
{21} 	The out-of-state authority Husband relies on to support his position is
distinguishable. 	Some cases primarily deal with statutes that themselves draw a
distinction between modification and termination. See In re Marriage of Glasser, 226
Cal. Rptr. 229, 231 (Ct. App. 1986) (holding that modification and termination for
remarriage are controlled by different statutory provisions and a provision in a marital
settlement agreement that does not specifically refer to the termination section is not
sufficient to overcome the specific statutory mandate that remarriage terminates
support). New Mexico’s statutes simply are not drafted the same way.
{22} 	Other authority Husband cites actually support Wife’s position. For example,
in Diefenbach v. Holmberg, 26 P.3d 1186, 1187 (Ariz. Ct. App. 2001), the court ruled
that a spousal support order which was “non-modifiable in amount or duration for any
reason by either party” did not survive the death of the receiving spouse. (Internal
quotation marks omitted.) Husband cites Diefenbach as a case that draws a distinction
between modification and termination. The outcome in Diefenbach was compelled
by a specific statutory provision not at issue here. Perhaps more important, in a later
case the Arizona Supreme Court made clear that the concept of modification could
and does include termination under another section of Arizona’s statutes dealing with

13
spousal support. In re Marriage of Waldren, 171 P.3d 1214, 1217 (Ariz. 2007) (en
banc). The Arizona statutory provision at issue in Waldren, —Ariz. Rev. Stat. Ann.
§ 25-317(G) (2001)—is similar to, though not identical with, New Mexico’s Section
40-4-7(B)(2)(b).
{23} 	Finally, Husband asserts that Wife’s failure to include a provision concerning
remarriage in the MSA results in the continuing application of Kuert to the MSA and
the final decree that incorporated it. Husband’s argument ignores the statute’s effect
on the meaning of terms used in MSA’s. The statute sets a standard of meaning for
MSAs using statutory terminology or relying on statutory provisions such as Section
40-4-7(B)(2)(b). 	Parties are free to contract around the statutory standard, but the
burden of suggesting limitations on such things as the concept of nonmodifiability
should fall on the party who desires the limitation. In this case, it would be Husband.
Husband admits he and his attorney thought about the issue of remarriage and that
they decided not to broach it during negotiations. 	The statutory standard of
nonmodifiability thus controls.
CONCLUSION
{24} 	The district court order terminating transitional spousal support is reversed.
The matter is remanded for further proceedings consistent with this opinion.

14
{25} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
MICHAEL E. VIGIL, Judge