Nevada Family Law Appeals

The WILLICK LAW GROUP maintains an active practice in appeals of family law cases, and has done so for more than 30 years. We sometimes appeal from, or defend against, cases in which we were trial counsel. More often, we are retained to prosecute or defend appeals that were handled by other law firms at the trial level. We are admitted to practice in the Nevada Supreme Court and Court of Appeals, the Federal Ninth Circuit Court of Appeals, and the United States Supreme Court. Some of the decisions in which we prevailed on appeal are referenced below, with links to the decisions and orders, and to our briefs in those cases.

 

“Friend of the Court”/Amicus Briefs

The lawyers of the Willick Law Group, and particularly Marshal Willick, are frequently asked to draft “Friend of the Court,” or Amicus, Briefs for the Nevada Supreme Court on family law topics on behalf of the State Bar of Nevada Family Law Section. We draft these briefs either alone or in conjunction with other attorneys. Some of those briefs, on a number of topics, are posted at the bottom of this page.

 

Which Appeals Cases are Heard by the Nevada Supreme Court?

Appeals are generally, by their nature, lengthy, expensive propositions that should not be entered into lightly.  Since Nevada now has a Court of Appeals, most family law appeals will go directly from the trial court to the Nevada Supreme Court and then are “pushed down” to that court. Only cases of first impression, or involving major questions of public policy, or involving the termination of parental rights are typically heard by the Nevada Supreme Court.

There is a “fast track” program for custody cases that is intended to speed those appeals, but even with that acceleration it is not unusual for them to take two years or more, and cases that are not “accelerated” can and do take even longer.

 

Which Nevada Family Law Orders Can be Appealed?

An appeal can be brought from a final order (such as a Decree of Divorce) or from certain kinds of orders after final judgment, in post-judgment proceedings. Not every order can be appealed; preliminary orders are generally non-appealable, and certain kinds of post-judgment orders cannot be appealed.

 

The Nevada Family Law Appeal Process

A party who wishes to challenge a final order that may be appealed files a “Notice of Appeal.” This is jurisdictional; in other words, if not done within a certain time limit (usually, 30 days after service of notice of entry of judgment) no appeal can be brought at all. Sometimes, but not always, the order being appealed from can be “stayed” during the time it is on appeal, but even where this is possible it usually requires the posting of a bond to secure the judgment, and the bond itself can be very expensive.

The next important step is the holding of an appellate settlement conference, where both parties and their attorneys appear and have one final chance to settle the case before proceeding with the appeal. This appellate settlement program is relatively new, having been implemented to take some of the crushing backlog off of the Nevada Supreme Court, and it has surprised even its proponents by just how many cases actually settle at that stage. If the case does settle, then the appeal ends, a final order is entered, and the appeal is dismissed. Still, no one can count on their case settling at the conference stage; anyone initiating an appeal should be prepared to see it through to the end.

 

What to Do if a Nevada Family Law Appeal Does Not Settle

If the appeal does not settle, then the person appealing (“Appellant”) will have a limited amount of time within which to assemble an Appendix containing all relevant papers from the trial court, and submit that appendix, along with all relevant transcripts and an Opening Brief, to the Nevada Supreme Court. If there were lengthy proceedings requiring transcription, the costs just of preparing the Appendix and transcripts can be many thousands of dollars, before the attorney even starts to write the Opening Brief.

Next, the party against whom the appeal was brought (“Respondent”) gets a chance to supplement the Appendix with any additional papers that party feels should have been but were not submitted, and to respond to the Appellant’s arguments, and raise any additional arguments believed relevant, in an Answering Brief.

Finally, the Appellant gets to respond to the Answering Brief, in a final Reply Brief.

 

What Happens if an Appeal Goes to the Nevada Supreme Court?

Some cases are resolved just on the Appendix and briefs. In the Court of Appeals, it is at least equally likely a decision will be made on the papers.  The majority of cases in the Supreme Court go to some form of oral argument, either before a three-Justice panel of the Court in Las Vegas or Carson City, or before the entire seven-Justice Court at the same time (this is called an en banc argument).

The Supreme Court has developed a program through which members of the public can view an Appeal oral argument while it is in progress. An audio record of the arguments is retained by the Court.

At some point after oral argument, a decision is made by the Court, rendered either in a published Opinion, or in an unpublished Order. The published opinions are collected in annual volumes, and become binding precedent for future legal decisions. Most decisions are not published, so of course we have participated in many appeals that did not result in published opinions.

 

The Importance of Qualified Representation When Filing an Appeal

Whether they are ultimately resolved at a settlement conference, on the briefs and appendix, or after oral argument, appellate cases require meticulous attention to detailed organization and rendition of the facts, comprehensive research into all applicable areas of law, and a thorough and scholarly legal argument.

Ultimately, litigation of appeals is a painstaking and difficult process, and it is perhaps the most challenging and technically difficult area of family law. At any given time, the Willick Law Group typically has two to six appeals pending at some stage of proceeding, and we intend to continue doing so as appropriate cases present themselves.

Nevada Family Law Appeals Articles by Marshal Willick

bronze figurine on wooden table holding sword and scaleMarshal Willick of Willick Law Group has written several scholarly articles on the subject of appeals which can be found below

The Willick Law Group’s Record of Success in Appellate Courts

Each of the plaques in the image below is the cover of a successful Nevada Family Law Appeal by Willick Law Group

Willick Law Group Nevada Family Law Appeal Plaques

Selected Nevada Supreme Court Oral Arguments by Marshal Willick

Marshal Willick Alhulaibi v. Senjab Nevada Supreme Court Oral ArgumentBelow is a sample of oral arguments by Marshal Willick of Willick Law Group from Nevada Family Law Appeal Cases:

Our Success in the Nevada Supreme Court

We are proud of the record of successes we have enjoyed in the Nevada Supreme Court and other appellate courts, both in unpublished orders, and in published decisions, including the following:

Carlson v. Carlson, 108 Nev. 358, 832 P.2d 380 (1992)

In Carlson v. Carlson, 108 Nev. 358, 832 P.2d 380 (1992), the Nevada Supreme Court reversed, at our urging, a trial court order refusing to set aside a property distribution under NRCP 60(b), where a private pension had been greatly undervalued in the original divorce proceedings. The Opinion required our client receive a fair distribution of the community property, and required entry of a QDRO so that our client received the survivorship benefits.

McMonigle v. McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994)

In McMonigle v. McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), we obtained reversal of a decision that had taken custody of a young girl from our client, the custodial mother. The Nevada Supreme Court decision held that the moving party in a custody proceeding must show that the circumstances of the parties have materially changed “since the most recent custodial order,” and events that took place before that proceeding are inadmissible to establish a change of circumstances.

Hermanson v. Hermanson, 110 Nev. 1400, 887 P.2d 1241 (1994)

In Hermanson v. Hermanson, 110 Nev. 1400, 887 P.2d 1241 (1994) the Nevada Supreme Court accepted our argument that the husband, who had been named the father of the minor child by the trial court, should be removed from the child’s birth certificate, overcoming difficult and technical issues dealing with equitable estoppel, paternity, presumptions, and conflicts of laws.

Waltz v. Waltz, 110 Nev. 605, 877 P.2d 501 (1994)

In Waltz v. Waltz, 110 Nev. 605, 877 P.2d 501 (1994), the Nevada Supreme Court agreed with our argument that the award to the wife of “permanent alimony,” as used in the parties’ divorce decree, was intended to survive the wife’s remarriage, where the alimony payments were, in substance, a property settlement, put into place to compensate the wife for the wife’s interest in husband’s military pension, which could not be directly paid to her by reason of technical military regulations.

Garrett v. Garrett, 111 Nev. 972, 899 P.2d 1112 (1995)

In Garrett v. Garrett, 111 Nev. 972, 899 P.2d 1112 (1995), the Nevada Supreme Court accepted our position and affirmed a decision that expenses of visitation incurred by the non-custodial parent as the result of the custodial parent’s move from the jurisdiction can be considered by the court pursuant to NRS 125B.080(9)(i) to justify a downward deviation or an offset against the amount of child support specified by the formula.

Dimick v. Dimick, 112 Nev. 402, 915 P.2d 254 (1996)

In Dimick v. Dimick, 112 Nev. 402, 915 P.2d 254 (1996), the Nevada Supreme Court accepted our argument that the husband’s signature of both spouses’ names on various documents did not actually transfer any property interest to the wife, and that the trial court had an absolute duty to return to our client his premarital property.

Krone v. Krone, No. 27235 (ODA May 20, 1996)

In Krone v. Krone, No. 27235 (ODA May 20, 1996), we successfully defended an award of arrearages for a McCarty-gap former military spouse, and prevented the opponent from shortchanging the former spouse by over-withoholding income taxes from the military retired pay.

Epstein v. Epstein, 113 Nev. 1401, 950 P.2d 771 (1997)

In Epstein v. Epstein, 113 Nev. 1401, 950 P.2d 771 (1997), the Nevada Supreme Court accepted our position on a number of procedural issues, finding that negotiations between parties are sufficient to constitute an appearance under the rules, that adequate notice must be given before default is taken, and that there is no requirement in divorce litigation for a “meritorious defense” to be established before the merits of a divorce case should be considered by the trial court.

Williams v. Williams, No. 28364 (ODA January 23, 1998)

In Williams v. Williams, No. 28364 (ODA January 23, 1998), we successfully defended the trial court’s distributions of assets and debts, denial of alimony, and significant award of attorney’s fees to our client who was injured by the other party’s misbehavior at the time of trial.

Shydler v. Shydler, 114 Nev. 192, 954 P.2d 37 (1998)

In Shydler v. Shydler, 114 Nev. 192, 954 P.2d 37 (1998), the Nevada Supreme Court agreed that the lower court had committed error in denying alimony to our client, the wife in a 17-year marriage in which she had been primarily responsible for raising two children, and the husband had enjoyed a very successful career in construction.

Schraeder v. Schraeder, No. 28341 (ODA August 13, 1999)

In Schraeder v. Schraeder, No. 28341 (ODA August 13, 1999), we successfully defended a distribution of military retirement benefits, award of survivorship benefits, alimony, and the division of property and debts we obtained at trial.

Harwood v. Harwood, No. 31775 (ODA December 20, 1999)

In Harwood v. Harwood, No. 31775 (ODA December 20, 1999), we successfully defended the attribution of value in a corporation under the Van Camp and Pereira standards, along with various other financial issues relating to real estate, income, and marital waste claims.

Danielson v. Evans, 36 P.3d 749, 751-59 (Ariz. Ct. App. 2001)

In Danielson v. Evans, 36 P.3d 749, 751-59 (Ariz. Ct. App. 2001), the Arizona Court of Appeals relied heavily on our amicus curia brief in finding that the Uniformed Services Former Spouses Protection Act does not bar relief to the former spouse when the military member spouse takes a disability award, and thus eliminates the retirement payments to the spouse. The court upheld an order requiring the former husband to pay his former wife the difference between the value of the retirement pay as it was envisioned at the time of the divorce and the reduced amount that she actually received as a result of his waiver.

Vaile v. District Court, 118 Nev. 262, 44 P.3d 506 (2002)

In Vaile v. District Court, 118 Nev. 262, 44 P.3d 506 (2002), we succeeded in having the Nevada Supreme Court issue a Writ of Mandamus requiring the lower court to return the minor children to our client, in Norway, under the Hague Convention on the Civil Aspects of International Child Abduction, and declaring that the provisions in the divorce decree adjudicating custody and visitation were entered without subject matter jurisdiction and therefore void.

In Vaile v. Porsboll, An unpublished case out of the First Appellate District of California (May 2015), we succeeded in having the errant decision entered by the Superior Court of Sonoma County, California reversed and remanded for dismissal for lack of personal jurisdiction. Mr. Vaile attempted a fraud on the court by not properly serving Ms. Porsboll and then when she did not appear, obtained a default against her while lying to that court about litigation that was still proceeding in Nevada.

Lofink v. Lofink, No. 34132 (ODA September 10, 2002)

In Lofink v. Lofink, No. 34132 (ODA September 10, 2002), we successfully defended an award of child custody and support, lump-sum alimony, and distribution of retirement benefits and other property and debts that we had obtained upon remand and re-trial of the action.

Wichert v. Wichert, Nos. 34357 & 34357 (Order of Remand, March 19, 2003)

In Wichert v. Wichert, Nos. 34357 & 34357 (Order of Remand, March 19, 2003), we successfully eliminated orders granting the former spouse an interest in property not properly considered marital or community, and reversed an unwarranted monetary award.

Carmona v. Carmona, No. 35851 (ODA October 21, 2003)

In Carmona v. Carmona, No. 35851 (ODA October 21, 2003), we successfully defended the award to the surviving spouse of the survivorship benefits payable under an ERISA-governed pension plan by way of constructive trust, overcoming claims of pre-emption. In later rounds of litigation in federal court, the two streams of survivorship benefits were split between the claimants, and the constructive trust was eliminated.

Olvera v. Olvera, No. 38233 (Order of Remand, October 29, 2003)

In Olvera v. Olvera, No. 38233 (Order of Remand, October 29, 2003), we obtained reversal of a trial court order. The divorce decree required payments to the former spouse, who received them for many years until the member elected to receive military disability benefits, 25 years post-divorce, eliminating the spousal share. Reversing the district court, the Nevada Supreme Court ordered the member to make up all sums that his election caused to be diverted from the former spouse to him, so that our client was made whole.

Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727 (2005)

In Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727 (2005), the Nevada Supreme Court affirmed the award of attorney’s fees to counsel for our client, who was represented Pro Bono, finding “the fact that a government institution or a private charity has provided legal assistance should not absolve other responsible parties of their financial obligations.” Further, “To impose the burden of the cost of litigation on those who volunteer their services, when the other party has the means to pay attorney fees, would be unjust.” An award of fees in a paternity case is permissible under NRS 126.171. In any award of fees in a pro bono case, the award must identify the legal basis for the award, and be supported by affidavits or other evidence that meets the factors set out in prior attorney’s fees cases.

Cuisenaire v. Mason, 122 Nev. 43, 128 P.3d 446 (2006)

In Cuisenaire v. Mason, 122 Nev. 43, 128 P.3d 446 (2006), the Nevada Supreme Court affirmed the award of prospective child support, and the award of retrospective child support, and remanded for resolution of the survivor’s benefits issues, as we requested. Unfortunately, the opposing party died during the pendency of the case, and the Court therefore declined to address the contradiction in Nevada case law regarding partition of omitted military retirement benefits.

Simon v. McClure, No. 50740 (Order of Remand, December 16, 2009)

In Simon v. McClure, No. 50740 (Order of Remand, December 16, 2009), we obtained reversal of a trial court order that had dismissed our motion to reduce child support. At our request, the Nevada Supreme Court reversed the trial court’s order, and remanded for our client’s motion to be able to be heard and resolved on its merits.

Mason v. Cuisenaire, No. 49293 (Order Dismissing Appeal, January 22, 2010)

In Mason v. Cuisenaire, No. 49293 (Order Dismissing Appeal, January 22, 2010), we successfully negotiated dismissal of the appeal and still obtained a favorable outcome for our client. The stipulated agreement declared Cuisenaire as the rightful beneficiary for her ex-husband’s military Survivor Benefit Plan.

Friedman v. Dist. Court, 127 Nev. 842, 264 P.3d 11 (2011)

In Friedman v. Dist. Court, 127 Nev. 842, 264 P.3d 11 (2011), we obtained reversal of a district court Order.  The Supreme Court adopted our position that the UCCJEA provisions governing continuing exclusive jurisdiction trump any purported agreement to the contrary.

Stoklos v. Hager, No. 569256 (Order of Affirmance, June 9, 2011)

In Stoklos v. Hager, No. 569256 (Order of Affirmance, June 9, 2011), we successfully defended the appeal of a child custody modification and an award of child support and attorneys fees.

Doan v. Wilkerson, No. 56591 (June 4, 2013)
Oral Argument in which Marshal Willick was counsel for the respondent.

Abrams v. Sanson, No. 75834 (December 12, 2019)
Oral Argument in which Marshal Willick was counsel for the appellant.

Peterson v. Peterson, No. 77478 (February 10, 2020)
Oral Argument in which Marshal Willick was counsel for the appellant, and succeeded.

The District Court determined that because the respondent had not contributed marital funds to his accounts, these accounts could not be established as community property.

However, the Supreme Court reversed this decision when it was established that the accounts were created as community property assets and under common law benefits earned during marriage are community property even if the benefits are only received after the marriage has ended.

LaFrance v. Cline, No. 76161 (October, 6, 2020)
Oral Argument in which Marshal Willick was counsel for the appellant. He argued in front of the Nevada Supreme Court.

According to the Nevada Supreme Court, because Obergefell granted Americans a right to marry, the state of Nevada was required to recognize a lawful marriage performed in another state. Nevada’s community property standard thus applies to same-sex couples as it does to opposite-sex ones.

Falconi v. Minter, No. 84947, 85195, and 85228 (2023)

Oral Argument before the Nevada Supreme Court on March 2, 2023. Nevada Supreme Court Case Nos. 84947/85195/85228.

Falconi filed a media request to access a child custody proceeding, but one of the parents did not want private information of the children to be accessible to the public. The Nevada Supreme Court held that the public has the right to court access, as it has been historically, and that local law was unconstitutional.

Ansell v. Ansell, Court of Appeals, 83916 (April 23, 2024)

Oral Argument before the Nevada Appellate Court on April 23, 2024. Case No. 83916.

Martinez v. Martinez, No. 84148 (August 1, 2024)
Oral Argument before the Nevada Supreme Court on August 1, 2024. Nevada Supreme Court Case No. 84148.

Nevada Family Law Appeals Case Summaries by Willick Law Group

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Archives

Some of the Willick Law Group’s Amicus Briefs

 CLE Materials on Appellate Litigation

Selected Nevada Supreme Court Oral Arguments