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