0001|                           SENATE BILL 1108
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0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003|                            INTRODUCED BY
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0004|                            CISCO MCSORLEY
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO DOMESTIC AFFAIRS; PROVIDING FOR A BINDING
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0012|     ARBITRATION OPTION DURING A DISSOLUTION OF MARRIAGE PROCEEDING;
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0013|     ENACTING A SECTION OF THE NMSA 1978.
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|          Section 1.  A new section of Chapter 40 NMSA 1978 is
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0017|     enacted to read:
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0018|          "[<u>NEW MATERIAL</u>]  BINDING ARBITRATION OPTION--PROCEDURE.-
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0019|     -
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0020|               A.  Parties to any action for divorce, separation,
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0021|     custody or time-sharing, child support, spousal support,
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0022|     marital property and debt division or attorney fees related to
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0023|     such matters, including any post-judgment proceeding related to
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0024|     such action, may stipulate to binding arbitration by a signed
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0025|     agreement that provides for an award with respect to one or
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0001|     more of the following issues:
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0002|                    (1)  valuation and division of real and
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0003|     personal property;
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0004|                    (2)  child support, custody, time-sharing or
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0005|     visitation;
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0006|                    (3)  spousal support;
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0007|                    (4)  costs, expenses and attorney fees;
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0008|                    (5)  enforceability of prenuptial and
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0009|     post-nuptial agreements;
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0010|                    (6)  determination and allocation of
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0011|     responsibility for debt as between the parties;
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0012|                    (7)  any civil tort claims related to any of
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0013|     the foregoing; or
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0014|                    (8)  other contested domestic relations
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0015|     matters.
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0016|               B.  A court may not order a party to participate in
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0017|     arbitration except to the extent a party has agreed to
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0018|     participate under a written arbitration agreement.
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0019|               C.  Arbitration under this section may be heard by
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0020|     one or more arbitrators.  The court shall appoint an arbitrator
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0021|     agreed to by the parties if the arbitrator consents to the
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0022|     appointment.
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0023|                    (1)  If the parties have not agreed to an
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0024|     arbitrator, the court shall appoint an arbitrator who shall
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0025|     meet the following qualifications:
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0001|                         (a)  is an attorney in good standing with
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0002|     the state bar of New Mexico; and
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0003|                         (b)  has practiced as an attorney for not
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0004|     less than five years immediately preceding the appointment, and
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0005|     actively practiced in the area of domestic relations, including
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0006|     domestic violence, during three of those five years.  Any
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0007|     period of time during which an individual serves as a judge,
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0008|     special master or child support hearing officer is considered
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0009|     as actively practicing in the area of domestic relations; or
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0010|                         (c)  is another professional licensed and
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0011|     experienced in the subject matter which is the area of the
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0012|     dispute.
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0013|                    (2)  An arbitrator appointed pursuant to this
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0014|     section is immune from liability in regard to the arbitration
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0015|     proceeding to the same extent as the judge who has jurisdiction
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0016|     of the action that is submitted to arbitration.
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0017|                    (3)  Objection to the qualifications of an
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0018|     arbitrator must be raised in connection with the appointment by
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0019|     the court or they waived.  The court will permit parties to
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0020|     raise objections based on qualifications within ten days of
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0021|     appointment of an arbitrator by the court.  Parties who agree
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0022|     on an arbitrator waive objections to their qualifications.
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0023|               D.  An arbitrator appointed under this section:
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0024|                    (1)  shall hear and make an award on each issue
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0025|     submitted for arbitration under the arbitration agreement
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0001|     subject to the provisions of the agreement; and
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0002|                    (2)  has all of the following powers and
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0003|     duties:
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0004|                         (a)  to administer an oath or issue a
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0005|     subpoena as provided by court rule;
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0006|                         (b)  to issue orders regarding discovery
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0007|     proceedings relative to the issues being arbitrated, including
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0008|     among others, appointment of experts; and
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0009|                         (c)  to allocate arbitration fees and
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0010|     expenses between the parties, including imposing a fee or
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0011|     expense on a party or attorney as a sanction for failure to
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0012|     provide information, subject to provisions of the arbitration
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0013|     agreement.
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0014|               E.  An arbitrator, attorney or party in an
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0015|     arbitration proceeding under this section shall disclose in
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0016|     writing any circumstances that may affect an arbitrator's
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0017|     impartiality, including, but not limited to, bias, financial
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0018|     interests, personal interests or family relationships.  Upon
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0019|     disclosure of such a circumstance, a party may request
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0020|     disqualification of the arbitrator.  If the arbitrator does not
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0021|     withdraw within seven days after a request for
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0022|     disqualification, the party may file a motion for
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0023|     disqualification with the court.
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0024|               F.  If the court finds that the arbitrator is
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0025|     disqualified, the court may appoint another arbitrator, subject
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0001|     to the provisions of the arbitration agreement.
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0002|               G.  As soon as practicable after the appointment of
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0003|     the arbitrator, the parties and attorneys shall confer with the
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0004|     arbitrator to consider all of the following:
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0005|                    (1)  scope of the issues submitted;
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0006|                    (2)  date, time and place of any hearing;
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0007|                    (3)  witnesses, including experts, who may
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0008|     testify;
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0009|                    (4)  appointment of experts, if any, and
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0010|     schedule for exchange of expert reports or summary of expert
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0011|     testimony; and
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0012|                    (5)  subject to Subsection H of this section,
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0013|     exhibits, documents or other information each party considers
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0014|     material to the case and a schedule for production or exchange
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0015|     of the information.  An objection not made before the hearing
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0016|     to production or lack of production of information is waived.
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0017|               H.  The arbitrator shall order reasonable access to
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0018|     information for each party that is material to the arbitration
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0019|     issues prior to the hearing, including the following:
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0020|                    (1)  a current complete sworn financial
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0021|     disclosure statement, when financial matters are at issue;
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0022|                    (2)  if a court has issued an order concerning
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0023|     an issue subject to arbitration, a copy of the order;
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0024|                    (3)  any relevant documents related to the
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0025|     arbitration issues defined by the arbitrator;
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0001|                    (4)  proposed award by each party for each
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0002|     issue subject to arbitration; and
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0003|                    (5)  expert opinions of any experts to be used
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0004|     by either party or appointed by the arbitrator.
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0005|               I.  Except as provided by this section, court rule
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0006|     or the arbitration agreement, a record shall not ordinarily be
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0007|     made of an arbitration hearing under this section unless either
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0008|     party requests it.  If a record is not required, an arbitrator
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0009|     may make a record to be used only by the arbitrator to aid in
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0010|     reaching the decision.
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0011|               J.  Unless waived by the parties, a record shall be
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0012|     made of that portion of any hearing that concerns child
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0013|     custody, visitation or time-sharing.
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0014|               K.  The arbitration agreement may set forth any
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0015|     standards on which an award should be based, including any law
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0016|     to be applied.
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0017|               L.  Unless otherwise agreed by the parties and
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0018|     arbitrator in writing or on the record, the arbitrator shall
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0019|     issue the written award on each issue within sixty days after
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0020|     the end of the hearing and after receipt of proposed findings
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0021|     of fact and conclusions of law if requested by the arbitrator.
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0022|               M.  If the parties reach an agreement regarding
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0023|     child custody, time-sharing or visitation, the agreement shall
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0024|     be placed on the record by the parties under oath and shall be
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0025|     included in the arbitrator's written award.
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0001|               N.  The arbitrator retains jurisdiction to correct
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0002|     errors or omissions in an award upon motion by a party to the
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0003|     arbitrator within twenty days after the award is issued or upon
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0004|     the arbitrator's own motion.  Another party to the arbitration
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0005|     may respond to the motion within seven days after the motion is
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0006|     made.  The arbitrator shall make a decision on the motion
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0007|     within seven days after the expiration of the response time
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0008|     period.
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0009|               O.  The court shall enforce an arbitrator's award or
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0010|     other order issued under this section in the same manner as an
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0011|     order issued by the court.  A party may make a motion to the
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0012|     court to enforce an arbitrator's award or order.
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0013|               P.  Any party in an action that was submitted to
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0014|     arbitration under this section shall file with the court a
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0015|     stipulated order, or a motion to enforce the award within
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0016|     twenty-one days after the arbitrator's award is issued unless
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0017|     otherwise agreed to by the parties in writing or unless the
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0018|     arbitrator or court grants an extension.
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0019|               Q.  If a party applies to the court for vacation of
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0020|     an arbitrator's award in binding arbitration issued under this
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0021|     section that concerns child custody, time-sharing or
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0022|     visitation, the court shall review the award based only upon
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0023|     any record of the arbitration hearing and any factual matters
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0024|     that have arisen since the arbitration hearing that are
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0025|     relevant to the claim.  The court may vacate an award of
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0001|     custody, time-sharing or visitation made in binding arbitration
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0002|     if the court finds that circumstances have changed since
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0003|     issuance of the award that are adverse to the best interests of
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0004|     the child, upon a finding that the award will cause harm or be
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0005|     detrimental to a child, or pursuant to Subsections R and S of
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0006|     this section.  An arbitration agreement may provide a broader
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0007|     scope of review of custody, time-sharing or visitation issues
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0008|     by the court, and such review will apply if broader than this
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0009|     section.
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0010|               R.  If a party applies to the court for vacation or
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0011|     modification of an arbitrator's award issued under this
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0012|     section, the court shall review the award as provided in this
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0013|     section.
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0014|               S.  If a party applies under this section, the court
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0015|     may vacate, modify or correct an award under any of the
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0016|     following circumstances:
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0017|                    (1)  the award was procured by corruption,
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0018|     fraud or other undue means;
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0019|                    (2)  there was evident partiality by an
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0020|     arbitrator, or misconduct prejudicing a party's rights;
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0021|                    (3)  the arbitrator exceeded his powers; or
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0022|                    (4)  the arbitrator refused to postpone the
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0023|     hearing on a showing of sufficient cause or refused to hear
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0024|     evidence substantial and material to the controversy.
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0025|               T.  An application to vacate an award on grounds
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0001|     stated in Subsections R and S of this section shall be decided
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0002|     by the court.  If an award is vacated in grounds stated in
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0003|     Paragraph (3) or (4) of Subsection S of this section, the court
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0004|     may order a rehearing before the arbitrator who made the award.
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0005|               U.  An appeal from an arbitration award under this
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0006|     section that the court confirms, vacates, modifies or corrects
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0007|     shall be taken in this same manner as from an order or judgment
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0008|     in other domestic relations actions."
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0009|                                    
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0010|   
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0011|                      FORTY-THIRD LEGISLATURE          SB 1108/a
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0012|                        FIRST SESSION, 1997
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0013|   
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0014|   
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0015|                                                   March 5, 1997
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0016|   
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0017|   Mr. President:
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0018|   
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0019|       Your JUDICIARY COMMITTEE, to whom has been referred
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0020|   
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0021|                          SENATE BILL 1108
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0022|   
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0023|   has had it under consideration and reports same with
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0024|   recommendation that it DO PASS, amended as follows:
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0025|   
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0001|       1.  On page 3, line 15, strike "objection" and insert in
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0002|   lieu thereof "objections".
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0003|   
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0004|       2.  On page 3, line 17, after "they" insert "are".
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0005|   
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0006|                                Respectfully submitted,
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0007|   
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0008|   
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0009|   
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0010|                                
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0011|   __________________________________
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0012|                                Fernando R. Macias, Chairman 
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0013|   
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0014|   
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0015|   
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0016|   Adopted_______________________   Not
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0017|   Adopted_______________________
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0018|             (Chief Clerk)                          (Chief Clerk)
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0019|   
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0020|   
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0021|                     Date ________________________
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0022|   
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0023|   
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0024|   The roll call vote was <u> 6 </u> For <u> 1 </u> Against
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0025|           Yes:    6
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0001|           No:     Sanchez
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0002|                Excused:     Tsosie
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0003|           Absent: None
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0004|   
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0005|   
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0006|   S1108JU1
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0007|   
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0008|                        FORTY-THIRD LEGISLATURE
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0009|                        FIRST SESSION, 1997
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0010|   
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0011|   
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0012|   
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0013|                                         October 24, 1997
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0014|   
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0015|   
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0016|   SENATE FLOOR AMENDMENT number <u>      </u> to SENATE BILL 1108, as
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0017|   amended
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0018|   
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0019|   AMENDMENT sponsored by SENATOR McSORLEY
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0020|   
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0021|       1.  On page 8, lines 6, after the word "award" insert the
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0022|   word "only".
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0023|   
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0024|   
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0025|   
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0001|   
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0002|   
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0003|   
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0004|                                    <u>                              
</u>    |
<u></u>0005| <u>  </u>
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0006|                                    Senator Cisco McSorley
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0007|   
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0008|   
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0009|   
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0010|   Adopted <u>                       </u>       Not Adopted <u>               
</u>    |
<u></u>0011| <u>         </u>
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0012|            (Chief Clerk)                       (Chief Clerk)
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0013|   
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0014|   
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0015|                    Date <u>                            </u>
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0016|   
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0017|   
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0018|   
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0019|   S1108FS1                       State of New Mexico
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0020|                      House of Representatives
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0021|   
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0022|                      FORTY-THIRD LEGISLATURE
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0023|                        FIRST SESSION, 1997
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0024|   
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0025|   
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0001|                                                  March 20, 1997
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0002|   
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0003|   
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0004|   Mr. Speaker:
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0005|   
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0006|       Your JUDICIARY COMMITTEE, to whom has been referred
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0007|   
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0008|                 SENATE BILL 1108, as amended
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0009|                               
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0010|   has had it under consideration and reports same with
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0011|   recommendation that it DO PASS.
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0012|   
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0013|                            Respectfully submitted,
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0014|   
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0015|   
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0016|   
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0017|                            <u>                                 
</u>    |
<u></u>0018| <u>                           </u>                        Thomas P. Foy, Chairman
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0019|   
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0020|   
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0021|   Adopted <u>                    </u>   Not Adopted <u>                     
</u>    |
<u></u>0022| <u>  </u>
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0023|           (Chief Clerk)                      (Chief Clerk)
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0024|   
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0025|                        Date <u>            </u>
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0001|   
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0002|   The roll call vote was<u> 7 </u> For<u> 0 </u> Against
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0003|   Yes:         7
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0004|                Excused:     Alwin, Luna, Mallory, Rios, Sanchez, Stewart
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0005|           Absent: None
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0006|   
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0007|   
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0008|   G:\BILLTEXT\BILLW_97\S1108
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