April 13, 2020- Shani L. Madden v. Douglas M. Smith, No. A-1-CA-37131

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
SHANI L. MADDEN,	2
Petitioner-Appellant,	3
v. 	No. A-1-CA-37131	4
DOUGLAS M. SMITH,	5
Respondent-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Victor S. Lopez, District Judge	8
Stalter Law LLC	9
Kenneth H. Stalter	10
Albuquerque, NM	11
for Appellant	12
Sutin, Thayer & Browne	13
A Professional Corporation	14
Mariposa Padilla Sivage	15
Lynn E. Mostoller	16
Christina M. Looney	17
Albuquerque, NM	18
for Appellee	19
MEMORANDUM OPINION	20
BOGARDUS, Judge.	21
{1} 	Shani L. Madden appeals the district court’s judgment entering a final decree	22
dissolving her marriage to Douglas M. Smith. We consider whether the court erred	23
Court of Appeals of New Mexico
Filed 4/13/2020 10:51 AM

2
by (1) refusing to order the production of confidential records by two non-party	1
companies—records 	containing 	data 	underlying 	the 	court-appointed 	expert’s	2
opinion; (2) denying Madden spousal support; (3) denying Madden attorney fees	3
under NMSA 1978, Section 40-4-7 (1997); and (4) failing to disclose what Madden	4
alleges is a conflict of interest. We affirm.	5
BACKGROUND	6
{2} 	Madden and Smith were married for nearly five years before Madden	7
petitioned for divorce. During the marriage, Madden was voluntarily unemployed or	8
underemployed. Smith had been paying her $4,000 per month plus the cost of health	9
insurance for herself and her children and her car insurance. These payments, in that	10
or an increased amount, continued throughout the litigation.	11
{3} 	There were no children from the marriage, so the matters litigated pertained	12
to the division of assets and debts and the award of interim support, spousal support,	13
and attorney fees. The case went to trial almost four years after it began. Several of	14
the district court’s pre-trial procedural rulings are the subject of this appeal. More	15
detail on those rulings and on this appeal’s other issues is provided below as	16
appropriate.	17
DISCUSSION	18
{4} 	Before we address the issues, we set forth some of the overarching principles	19
guiding our review. First, we presume the district court’s rulings are correct. See	20

3
Firstenberg v. Monribot, 2015-NMCA-062, ¶ 57, 350 P.3d 1205. Madden, as the	1
appellant, bears the burden to clearly demonstrate that the district court erred. See	2
id. Second, the district court abuses its discretion “when a ruling is clearly contrary	3
to the logical conclusions demanded by the facts and circumstances of the case.”	4
Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153.	5
I. 	Discovery of Confidential Third-Party Records Used by the Court-	6
Appointed Expert	7
{5} 	Smith entered the marriage with ownership interests in several companies,	8
including 	NanoCool, 	NanoPore, 	and 	NanoGroup 	(collectively, 	the 	Nano	9
Companies). Smith acknowledged he was the “operating individual” for the	10
companies.	11
{6} 	In her divorce petition, Madden alleged she was entitled to a share of the	12
community property from the marriage, including a portion of Smith’s interests in	13
the Nano Companies. Madden contends the district court erred when it refused to	14
allow her access to the QuickBooks files that NanoCool and NanoPore1 provided to	15
a court-appointed expert.	16
A. 	Procedural Background	17
{7} 	Recognizing that the disclosure of certain information about the Nano	18
Companies could harm the companies’ interests by, among other things, violating	19
1 NanoGroup was not party to this particular dispute because it did not possess
the QuickBooks files at issue.

4
their nondisclosure agreements with third parties, the parties agreed to the entry of a	1
stipulated order (the Confidentiality Order) early in the litigation, sealing the record	2
insofar as it revealed the Nano Companies’ confidential information. Subsequent to	3
its entry of the Confidentiality Order, the district court appointed an accountant,	4
Henry South, to serve as a Rule 11-706 NMRA expert to determine the value of the	5
community property interest in the Nano Companies. Meanwhile, Madden hired her	6
own accountant, Margi Palmer, as an expert to value the companies.	7
{8} 	Madden served subpoenas on NanoCool and NanoPore to produce records	8
relevant to Ms. Palmer’s determinations. In response, Smith filed a motion to quash	9
Madden’s subpoenas and for a protective order. Following a hearing, the district	10
court concluded that the information Madden sought was relevant to the case and	11
denied Smith’s motion to quash the subpoenas. The denial order instructed Madden	12
to re-issue her subpoenas to narrow the evidence sought and to add her request for	13
the companies’ QuickBooks files. NanoCool and NanoPore moved to quash the re-	14
issued subpoenas, arguing that the requested material—general ledger detail in	15
QuickBooks format—was “protected and confidential” and that disclosing it would	16
cause it to violate its nondisclosure agreements. NanoCool attached an affidavit to	17
support its claims, while NanoPore did not. Madden responded that production was	18
appropriate because the Confidentiality Order protected NanoCool and NanoPore by	19

5
preventing any party from disclosing any of the requested information. NanoCool	1
and NanoPore took exception to that contention in their respective replies.	2
{9} 	The district court amended its previous order regarding the production of	3
documents related to the Nano Companies, ordering NanoCool and NanoPore to turn	4
over certain records (1) to the court for in camera review; and (2) unless the	5
companies objected, to Mr. South and Madden. The companies complied with the	6
first part of the order, but objected to producing the documents to Mr. South or	7
Madden, arguing that Rule 1-045(C) NMRA protected against production. Madden	8
then requested hearings to determine how Mr. South and the court could review, and	9
she could see a summary of, the records. The companies renewed their objections to	10
the court order.	11
{10} 	Without a ruling on the matter, resolution of the discovery dispute stalled. To	12
overcome this predicament, the parties, NanoCool, and NanoPore agreed to a	13
stipulated order (the Stipulated Production Order) providing that the companies	14
would give the records, including the QuickBooks files, to Mr. South only for his	15
review. The Stipulated Production Order further directed that Mr. South was not to	16
disclose the records “to either [Madden] or [Smith] or their counsel” except by court	17
order. Mr. South completed his valuation and determined that the Nano Companies’	18
collective value decreased during the marriage.	19

6
{11} 	Despite agreeing that Mr. South was not to disclose the records absent a court	1
order, Madden tried to access them by deposing Mr. South, instructing that “Mr.	2
South is requested to bring all documents used to produce his valuation of companies	3
. . ., 	including 	those 	documents 	produced 	In 	Camera 	under 	the 	Stipulated	4
[Production] Order.” The Nano Companies moved to quash the deposition notice.	5
Madden responded, again arguing that the Confidentiality Order made production	6
proper. Less than three weeks before trial, the district court heard argument on the	7
motion to quash. Notwithstanding Madden’s repeated requests that the court order	8
production of the QuickBooks files to her, the court granted the motion and ordered	9
that “Mr. South shall continue to be bound by the . . . [S]tipulated [Production	10
O]rder, and shall not disclose the materials he received . . . to the parties or their	11
counsel.”	12
B. 	Analysis	13
{12} 	Madden argues generally that the district court’s ruling was error. We begin	14
by noting that we review the ruling for an abuse of discretion, see Vanderlugt v.	15
Vanderlugt, 2018-NMCA-073, ¶ 30, 429 P.3d 1269, and that “[a]lthough the rules	16
favor allowance of liberal pretrial discovery,” a district court may limit discovery.	17
Id. (internal quotation marks and citation omitted). Before turning to the central	18
question of whether the court erred in limiting discovery, we address some of the	19
points Madden makes in support of her allegation.	20

7
{13} 	Madden first argues that the district court erred by finding that production to	1
her “would jeopardize [NanoCool’s and NanoPore’s] business interests.” She	2
specifically claims there is insufficient evidence of the “text, terms, scope, and	3
timing” of what she refers to as the “alleged” nondisclosure agreements for the court	4
to have determined that disclosure of the data she requested would violate the	5
nondisclosure agreements or harm the companies’ interests. She points out that only	6
NanoCool, and not NanoPore, supplied an affidavit supporting that conclusion.	7
{14} 	There are two related problems with this argument. First, Madden failed to	8
argue below that some of the underlying facts and data she requested were beyond	9
the scope of the agreements, despite having had ample opportunity—in her	10
responses to the companies’ objections, for instance—to do so. This is problematic	11
because “we review the case litigated below, not the case that is fleshed out for the	12
first time on appeal.” In re T.B., 1996-NMCA-035, ¶ 13, 121 N.M. 465, 913 P.2d	13
272. Madden’s argument to the district court was that production of the QuickBooks	14
files to her was proper because the Confidentiality Order prevented her from	15
revealing information in them, not that such production was proper because the files	16
did not contain information made confidential by the nondisclosure agreements.	17
{15} 	Second, Madden’s actions below undermine her present insinuation that the	18
agreements did not exist. She repeatedly affirmed the agreements’ existence, first by	19
entering into the agreement memorialized by the Confidentiality Order recognizing	20

8
them. She then acknowledged them in a motion stating, “There is nothing that []	1
Smith has done for the marital community’s income and assets that . . . does not	2
involve nondisclosure agreements with vendors and customers.” By affirming the	3
agreements’ existence, Madden contributed to what she now perceives as a	4
shortcoming in the district court’s ruling; she “should hardly be heard to complain	5
about [that] shortcoming[] on appeal.” Cordova v. Taos Ski Valley, Inc., 1996-	6
NMCA-009, ¶ 13, 121 N.M. 258, 910 P.2d 334. For these reasons, we disregard	7
Madden’s complaint of insufficient evidence.	8
{16} 	Referring to the district court’s finding that the QuickBooks files contained	9
“confidential 	and 	privileged” 	information, 	Madden 	next 	disputes 	that 	the	10
information was privileged. Yet even if it was not, this point is immaterial. The	11
companies did not claim an evidentiary privilege, see Rule 11-501 NMRA, but rather	12
argued protection under the subpoena-related Rule 1-045 NMRA.	13
{17} 	Rule 	1-045(C)(3)(b)(i) 	allows 	a 	court 	to 	shield 	“confidential 	research,	14
development 	or 	commercial 	information” 	from 	discovery. 	Such 	confidential	15
information was the basis for the companies’ objections. It was also a basis for the	16
district court’s ruling, and we see no reason to deem it an improper one. That the	17
court also described the information as “privileged” matters not, as only one proper	18
basis for a ruling is needed. See Gonzales v. Lopez, 2002-NMCA-086, ¶ 17, 132	19
N.M. 558, 52 P.3d 418. We thus disregard the privilege question Madden raises.	20

9
{18} 	We next address the series of assertions Madden makes about the prejudice	1
she suffered as a result of the district court’s denial of access to the QuickBooks	2
files. These arguments generally focus on the consequences of the district court’s	3
refusal and the rule, as she puts it, that “reversal is required if Madden was prejudiced	4
by the district court’s rulings.” In support of this proposition Madden relies on Doe	5
v. Roman Catholic Diocese Boise, Inc., 1996-NMCA-057, ¶ 21, 121 N.M. 738, 918	6
P.2d 17. We read Doe to more accurately stand for the proposition that a district	7
court may reasonably limit discovery, and when it does, there is no abuse of	8
discretion where the complaining party does not show resulting prejudice. See id.	9
¶¶ 21-22 (citing DeTevis v. Aragon, 1986-NMCA-105, ¶¶ 3-11, 104 N.M. 793, 727	10
P.2d 	558 	(affirming 	the 	district 	court’s 	order 	denying 	discovery 	of 	items	11
supplemental to what was “sufficient,” where the requesting party failed to point out	12
how the denial prejudiced her)); accord Blake v. Blake, 1985-NMCA-009, ¶ 27, 102	13
N.M. 354, 695 P.2d 838 (“Absent a showing of prejudice, we will not find abuse of	14
discretion.”). Doe does not demand that we deem the district court’s decision error;	15
rather, it calls on us to consider whether that decision was contrary to logic and	16
reason. See 1996-NMCA-057, ¶¶ 21-22.	17
{19} 	We turn now to that key question: whether the district court’s refusal to order	18
disclosure of the QuickBooks files to Madden was an abuse of discretion. We agree	19
with the parties that Blake, also a divorce case, is instructive here. Blake concerned	20

10
a subpoena demanding the production of corporate records by a non-party company,	1
some of whose shares the husband controlled. 1985-NMCA-009, ¶¶ 1, 4, 18. Like	2
here, the wife sought the records to acquire information on the husband’s earnings.	3
See id. ¶ 11. The district court ultimately found that the subpoena was unreasonable,	4
oppressive, and overly broad, and quashed it. See id. ¶ 18.	5
{20} 	Blake recognized that courts in such circumstances are strained by competing	6
considerations: “the requesting party’s need for information to adequately present	7
his or her case, coupled with the court’s obligation to make an informed decision”;	8
and the corporate entity’s and shareholders’ “legitimate interest in the privacy of	9
their business affairs” and their right to freedom from “unreasonable harassment,	10
disadvantage and expense.” Id. ¶ 14. Blake sought to balance these considerations.	11
It reversed the district court and instructed it on remand to fashion a middle-ground	12
solution—a 	refinement 	of 	the 	subpoena—that 	would 	protect 	the 	company’s	13
interests. See id. ¶¶ 22-23.	14
{21} 	Bearing in mind, then, that courts resolving discovery disputes between a	15
party and a non-party corporation should strive to tailor their discovery orders so as	16
to avoid harming the various interests at stake, we take a closer look at the facts here.	17
At the hearing, Madden argued that her expert, Ms. Palmer, needed the QuickBooks	18
files to perform her valuation of the Nano Companies.	19

11
{22} 	Counsel for NanoCool and NanoPore, Benjamin Feuchter, maintained that	1
disclosing the files to Madden, or even to just Ms. Palmer—persons “outside the	2
court”—would expose the companies to liability arising from their nondisclosure	3
agreements. The district court pressed Mr. Feuchter and Madden for a middle-	4
ground solution. Mr. Feuchter said he believed that giving the files to Mr. South, “an	5
arm of the court,” was such a solution. Madden did not offer any solution of her own.	6
{23} 	Meanwhile, Smith argued that Madden had in fact received the information	7
Ms. Palmer needed. Smith said that Mr. South’s report, provided to Madden,	8
contained a QuickBooks files summary. Smith also said that much of the information	9
in the QuickBooks files and on which Mr. South relied had been given to Madden—	10
but that Madden had failed to provide the information to Ms. Palmer. Smith added	11
that Mr. South and Ms. Palmer both testified that the valuation could have been	12
performed without the QuickBooks files. Relatedly, Mr. Feuchter agreed that	13
production 	of 	the 	QuickBooks 	files 	were 	unnecessary, 	saying 	that 	all 	the	14
“generalized top-level financial information” had been disclosed to Madden, and	15
that what Mr. South did was verify the consistency of QuickBooks files data with	16
that “top-level” information. Smith commented that Mr. South testified that there	17
were no discrepancies between the two sets of data.	18
{24} 	Given this background, we do not see how the district court erred by declining	19
to order the production Madden sought. The parties’ and companies’ agreement,	20

12
memorialized in the Stipulated Production Order, constituted the type of “middle-	1
ground” solution contemplated in Blake. By following this course—which Madden	2
once advocated for—the companies’ interests in confidentiality were upheld while	3
the parties’ interests in moving the case forward through the use of a neutral expert	4
were met.	5
{25} 	Moreover, it is not clear that Madden was completely deprived of the records	6
needed to make her case, as was the wife in Blake. The district court was informed	7
that Madden received what was needed to perform the valuation and adequately	8
cross-examine Mr. South. Madden did not refute that assertion below, nor does she	9
here. “Where it appears that the party requesting discovery has already been granted	10
sufficient information, discovery may properly be denied or limited.” DeTevis,	11
1986-NMCA-105, ¶ 11. It appears that Madden was granted sufficient information,	12
and so the district court’s refusal to order production of that information in the	13
specific QuickBooks format was not error. Cf. id. (identifying no error where the	14
complaining party failed to show how it was prejudiced by the denial of additional	15
discovery); Vanderlugt, 2018-NMCA-073, ¶ 31 (same).	16
{26} 	Nor has Madden established that the district court was obligated to grant her	17
request. She has not, that is, supported her assertion that “the disclosure obligation	18
extends to any facts or data considered by the expert in forming the opinions to be	19
expressed[.]” Our rules on the subject are not so broad. Rather, Rule 1-026(B)(6)(a)	20

13
NMRA allows a party to “discover the identity of each person the other party may	1
call as an expert witness at trial, the subject matter on which the expert is expected	2
to testify, and the substance of the facts and opinions to which the expert is expected	3
to testify and a summary of the grounds for each opinion.” Though the rule does not	4
prohibit 	the voluntary or ordered production of data underlying an expert’s	5
testimony, it also does not strictly require that production. New Mexicans for Free	6
Enter. v. City of Santa Fe, 2006-NMCA-007, ¶ 69, 138 N.M. 785, 126 P.3d 1149	7
(providing that “under Rule 1-026 all of the data underlying [the expert’s] report	8
need not have been provided to [the p]laintiffs”).	9
{27} 	Rule 11-706(B)(1), meanwhile, requires a court-appointed expert to “advise	10
the parties of any findings the expert makes[.]” We are not aware of, and Madden	11
does not point us to, any authority dictating that such “findings” necessarily includes	12
the data underlying them.	13
{28} 	In an apparent acknowledgment that our discovery rules do not necessarily	14
require the production of data underlying the grounds for an expert’s opinion,	15
Madden proposes that we adopt the federal rule so requiring. Madden cites Biestek	16
v. Berryhill, ___ U.S. ___, ___, 139 S. Ct. 1148 (2019), for this proposition. That	17
case, in turn, cites Federal Rule of Civil Procedure 26(a)(2)(B). See Biestek, 139 S.	18
Ct. at 1154. But the federal rule does not apply to court-appointed witnesses. See	19
Fed. R. Civ. P. 26(a)(2)(A), (B). Furthermore, it contains a relevant exception: the	20

14
data considered need not be disclosed if the court, as here, orders otherwise. See Fed.	1
R. Civ. P. 26(a)(2)(B).	2
{29} 	Having considered Madden’s contentions in light of the record, we are not	3
persuaded that the district court erred by refusing to order the production of the	4
QuickBooks files to Madden. As discussed, the court was not obligated to order that	5
production; rather, doing so was within its discretion under Rule 1-045(C)(3)(b).	6
There were suggestions, unrefuted by Madden, that she received what her expert	7
needed. We cannot say that the court’s decision was clearly contrary to logic and	8
reason when considering both the companies’ interest in avoiding the breach of their	9
nondisclosure agreements and Madden’s interest in adequately presenting her case.	10
The district court did not abuse its discretion in denying Madden access to the	11
requested QuickBooks files.	12
II. 	Denial of Spousal Support	13
{30} 	Madden next contends that the district court erred in regard to her spousal	14
support claim, made pursuant to Section 40-4-7(E). We understand Madden to	15
challenge the order granting Smith’s motion in limine to exclude evidence offered	16
to support the claim. Despite having granted that motion, and in spite of Madden’s	17
failure to include the claim in the pre-trial order defining the issues heard at trial, see	18
Rule 1-016(E) NMRA, the court nevertheless allowed Madden to argue for spousal	19

15
support. The court ultimately ruled against Madden in its final order, which is the	1
other order we understand Madden to challenge.	2
{31} 	Insofar as Madden argues that the denial on the merits of her spousal support	3
claim was an abuse of discretion, her argument consists only of a contention that the	4
district court failed to consider all of the spousal support factors. But this contention	5
is undermined by the court’s explicit statement to the contrary in the final order:	6
“Taking into account the factors that should be considered . . . when determining	7
whether to order spousal support, as set forth in [] Section 40-4-7(E) and Michelson	8
v. Michelson, 1974-NMSC-022, ¶ 8, 86 N.M. 107, 520 P.2d 263, [Madden] has not	9
demonstrated a need for spousal support.” In light of our presumption in favor of the	10
district court’s ruling and this statement by the court, Madden has not clearly	11
demonstrated that this denial was error.	12
{32} 	We turn next to the order granting Smith’s motion in limine. Because	13
Madden’s challenges to the district court’s ruling on the motion overlook her	14
ultimate failure to identify grounds for a spousal support award, as described below,	15
we decline to review the ruling.	16
{33} 	In her petition, Madden requested spousal support, but identified no factual	17
grounds for it. Smith maintains, and Madden does not dispute, that she identified	18
those grounds in an interrogatory answer. Specifically, Smith states that Madden’s	19

16
response stated that she had “significant and debilitating psychological conditions”	1
preventing her from working.	2
{34} 	With the understanding that Madden’s psychologically based inability to work	3
was the ground for her spousal support claim, the district court appointed an expert	4
psychologist to evaluate her and issued several orders requiring her to produce her	5
medical records to the court-appointed expert and to Smith. Also with this	6
understanding, Smith filed motions to appoint the expert and to meet with him.	7
Throughout the discovery period, Madden gave no indication that the court’s and	8
Smith’s understanding was incorrect. When Madden failed to produce her medical	9
records to Smith, Smith filed the motion in limine to exclude evidence supporting	10
Madden’s spousal support claim. At a hearing on Smith’s motion held shortly before	11
trial, Madden announced she had a job. With this announcement, Madden abandoned	12
her claim that she had “significant and debilitating psychological conditions”	13
preventing her from working.	14
{35} 	Insofar as Madden now argues that (1) the discovery orders were overbroad,	15
and (2) the district court’s privilege-related conclusion underlying them was	16
incorrect, her arguments do not persuade us. Once Madden announced she had a job,	17
she was no longer in a position to claim she was unable to work, thus eliminating	18
Smith’s need to defend against her claim by examining the records at issue. The	19
discovery orders thus became irrelevant, and so Madden’s attack on them now is	20

17
misguided. That is, even if we agreed with Madden on these points and reversed the	1
orders, that reversal would have no effect on the case, given Madden’s abandonment	2
of her inability-to-work claim. These arguments are moot.	3
{36} 	In short, we will not review the motion in limine in light of Madden’s ultimate	4
failure to establish a claim that could properly serve as the subject of such a ruling.	5
To the extent that the district court elected to entertain Madden’s arguments on	6
spousal support even in the absence of such a claim, Madden has not persuaded us	7
that the resulting ruling was error.	8
III. 	Order Denying Madden’s Request for Attorney Fees	9
{37} 	Madden claims error in the district court’s denial of her summary judgment	10
motion seeking attorney fees under Section 40-4-7(A). That statute provides that in	11
a divorce proceeding, “[t]he court may make an order, relative to the expenses of the	12
proceeding, as will ensure either party an efficient preparation and presentation of	13
his case.” Id. We review the denial of a request for attorney fees under Section 40-	14
4-7(A) for an abuse of discretion. See Garcia v. Jeantette, 2004-NMCA-004, ¶ 15,	15
134 N.M. 776, 82 P.3d 947.	16
{38} 	The “central purpose” of an attorney fee award under Section 40-4-7(A) is “to	17
remedy any financial disparity between the divorcing parties so that each may make	18
an efficient and effective presentation of his or her claims[.]” Id. ¶ 19. Further, the	19
“primary test” to determine whether such an award is warranted is “a showing of	20

18
economic disparity, the need of one party, and the ability of the other to pay[.]”	1
Quintana v. Eddins, 2002-NMCA-008, ¶ 33, 131 N.M. 435, 38 P.3d 203 (internal	2
quotation marks and citation omitted).	3
{39} 	Madden’s claim is rooted in the following facts. Madden asked for attorney	4
fees in her petition. Around the time Madden filed her petition, Smith agreed to	5
continue paying her the support he was providing during the marriage. A few months	6
into the case, Madden moved for attorney fees and costs necessary for litigation.	7
Before ruling on the motion, the district court ordered an increase in Smith’s interim	8
support payments and specified that a portion of it was for minimum attorney fee	9
payments. The court later found that (1) an economic disparity between the parties	10
was apparent in the record; (2) Smith’s interim support payments were “to help	11
address” the parties’ income disparity; and (3) since a complete financial record had	12
not been established, an attorney fee award was premature. The court indicated it	13
would rule on the fee-award question after hearing the results of a cash-flow	14
evaluation. According to Madden, this evaluation never occurred.	15
{40} 	About two and a half years after the district court commented on the economic	16
disparity, Madden filed the motion at issue. The court denied it, concluding that (1)	17
the motion was untimely under the Rule 1-016 scheduling order; and (2) “[t]here is	18
no applicable legal authority for the proposition that this [c]ourt is to advance	19

19
[Madden]’s legal fees and expenses or award same prior to a final ruling in this	1
case.”	2
{41} 	Madden challenges the two stated bases for denial. Regarding the first, she	3
does not allege that the motion was timely filed, but rather says that she requested	4
attorney fees at the beginning of the case, and that “the original request was still	5
pending.” We take this to mean that she does not dispute that the motion was	6
untimely filed; consequently, she is bound by that finding. See Martinez v. Sw.	7
Landfills, Inc., 1993-NMCA-020, ¶ 18, 115 N.M. 181, 848 P.2d 1108. Likewise,	8
Madden does not argue that it is improper for a court to deny a motion due to its	9
untimely filing. We therefore presume that this aspect of the district court’s rationale	10
was correct.	11
{42} 	Even if, as Madden argues, the second basis for denial constituted a faulty	12
conclusion of law, that circumstance would not be enough to characterize the ruling	13
as an abuse of discretion. This is because the first basis was proper, and only one	14
proper basis for a ruling is needed. See, e.g., Gonzales, 2002-NMCA-086, ¶ 17.	15
Accordingly, the district court did not abuse its discretion in denying the motion. See	16
id.	17
{43} 	We briefly address two of Madden’s attempts to cast doubt on that conclusion.	18
First is her contention that the request could not have been untimely since her prior	19
request was still pending. But the request was not still pending; it was at least partly	20

20
fulfilled through the attorney-fee payments Smith was ordered to make. What was	1
pending was the district court’s final decision on the matter, and that determination	2
in turn depended on the cash-flow evaluation that evidently never occurred. In light	3
of these circumstances, Madden needed to take further initiative before receiving an	4
award, a reality even she—by filing her summary judgment motion—seemed to	5
implicitly acknowledge. That initiative ultimately failed for its untimeliness.	6
{44} 	Madden then argues that the denial was improper in light of the district court’s	7
observation on economic disparity. Madden seems to reason that, because the court	8
once found economic disparity, it was required to advance attorney fees to Madden.	9
But economic disparity is not all that is needed for a Section 40-4-7(A) award; also	10
needed is a finding of Smith’s ability to pay. See Quintana, 2002-NMCA-008, ¶ 33.	11
The court apparently never made this finding. Furthermore, and lastly, this argument	12
overlooks the reality that the economic disparity was susceptible to change. The	13
court found at trial that the more than five years of interim support payments rectified	14
the parties’ income disparity. All else being equal, this leveling of income would	15
necessarily have closed the parties’ economic gap.	16
{45} 	Altogether, these circumstances show that Madden’s original request for	17
attorney fees became stale as the case progressed. To revive it, she needed to make	18
a timely request and show that all elements of the test for an award under Section	19

21
40-4-7 were met. She failed to do this. Thus, Madden has not demonstrated that the	1
district court clearly erred in denying her motion for an attorney fee award.	2
IV. 	Judicial Conflict of Interest	3
{46} 	Madden next claims that the undisclosed conflict of interest of the judge who	4
presided over the trial threatened her right to procedural due process. Madden refers	5
to the fact, which Smith concedes, that an attorney representing Smith previously	6
represented the judge in a lawsuit to which the judge was a party.	7
{47} 	The attorney at issue acknowledges the following. The lawsuit was a workers’	8
compensation case. The district judge here was one of that case’s several defendants,	9
and the attorney worked for the law firm representing them. Under another	10
attorney’s supervision, she drafted a notice to remove the case to federal court and a	11
motion to dismiss the case. She then left the firm a little more than two months after	12
the lawsuit began. The first time she met the district judge on this case was in 2015,	13
when she appeared before him.	14
{48} 	This issue was not preserved for appellate review. Madden argues that we	15
should nevertheless review it as an exception to our preservation rule, Rule 12-321	16
NMRA. But no exception applies here. See Muse v. Muse, 2009-NMCA-003, ¶¶ 55-	17
57, 59-60, 145 N.M. 451, 200 P.3d 451 (rejecting the argument for a fundamental	18
right exception to the preservation rule based on alleged judicial bias in a divorce	19
proceeding).	20

22
{49} 	Even if the issue were preserved, we would not be persuaded by Madden’s	1
implicit claim that her right to have the case adjudicated by a disinterested and	2
impartial trier of fact was violated. That is, she “does not set out any facts to support	3
[that there was] bias” in the proceedings. Id. ¶ 58; cf. Reid v. N.M. Bd. of Exam’rs of	4
Optometry, 1979-NMSC-005, ¶¶ 7-9, 92 N.M. 414, 589 P.2d 198 (concluding that	5
where a trier of fact admitted to making a statement indicating his bias and	6
prejudgment of the issues, the party’s right to procedural due process was violated).	7
{50} 	Nor would we be persuaded by what is left of Madden’s argument: her Rule	8
21-211 NMRA-based claim that the district judge should have disclosed information	9
that the parties or their lawyers might “reasonably consider relevant to a possible	10
motion for disqualification,” even if he saw no basis for disqualification. See Rule	11
21-211 comm. cmt. [8]. The district judge could only so disclose if he knew of this	12
claimed conflict. Madden gives us no reason to suspect he did, and the attorney’s	13
account strongly suggests he did not. See State v. Harris, 1997-NMCA-119, ¶ 14,	14
124 N.M. 293, 949 P.2d 1190 (implying that cognition of one’s partiality, as derived	15
from one’s “conscience and discretion,” attends the recusal decision).	16
{51} 	Accordingly, we reject Madden’s contention that reversal is warranted under	17
her theory that her right to have an impartial trier of fact preside over her case was	18
violated.	19

23
V. 	Cumulative Error	1
{52} 	Madden lastly argues that “the cumulative impact of the district court’s errors	2
denied [her] a fair trial.” She cites Coates v. Wal-Mart Stores, Inc., 1999-NMSC-	3
013, ¶ 57, 127 N.M. 47, 976 P.2d 999, for the principle that “[r]eversal may be	4
required when the cumulative impact of errors during a trial is so prejudicial that a	5
party was denied a fair trial.” Here, as in 	Coates, “no prejudicial errors or	6
irregularities exist in the points raised on appeal[.]” Id. Reversal is therefore not	7
called for. See id.	8
CONCLUSION	9
{53} 	We affirm.	10
{54} 	IT IS SO ORDERED.	11
_____________________________	12
KRISTINA BOGARDUS, Judge	13
WE CONCUR:	14
___________________________	15
JULIE J. VARGAS, Judge	16
___________________________	17
JENNIFER L. ATTREP, Judge	18