New Cases added to MLAW: Five COA Unpublished: Hacham, Kellogg, Sarnelli, Carney, & McPherson

by | Aug 10, 2024 | Nevada Family Law Appeals | 0 comments

Hacham v. Sebai, No. 86819-COA, Order of Affirmance (Unpublished Disposition, Mar. 22, 2024)

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The family took a family trip from Nevada to Morocco where the husband stole his two children’s passports as well as his wife’s passport. He then proceeded to file for divorce and wanted to enroll the children in school in Morocco. With the help from the U.S. consulate, the wife and children were able to return to Nevada. The wife then filed for divorce. The district court in Nevada took over jurisdiction.

District court awarded the ex-wife primary physical custody of the two children, ordered the parties to sell the Moroccan property and equally divide the proceeds, and awarded the ex-wife half of the “untraceable” 401(k) funds.

The district court did not err in awarding the ex-wife primary physical custody because the decision was based on substantial evidence in the record and in the best interest of the children. The ex-husband never requested joint physical custody and had previously agreed that the ex-wife have primary physical custody.

The district court also did not err when it ordered the parties to sell the Moroccan property and equally divide the proceeds because the ex-husband failed to show evidence that he actually purchased the property prior to marriage or otherwise separate in nature.

Last, the district court did not err when it awarded the ex-wife half of the “untraceable” 401(k) funds because its decision was supported by substantial evidence. The ex-husband failed to supplement his financial disclosure form and offered both conflicting and conclusory testimony during the evidentiary hearing regarding the “untraceable” funds. Thus, the district court ruled in favor of the ex-wife’s argument.

The Court of Appeals affirmed the district court’s decision.

 

Kellogg v. Ghibaudo, No. 84778-COA, Order of Affirmance (Unpublished Disposition, Mar. 22, 2024)

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During the divorce proceedings, the parties entered into a confidentiality agreement because the court case included sensitive issues involving their finances and the ex-husband’s business. The agreement provided that certain documents, material, and information may be deemed confidential and could not be disclosed by either party.

The ex-wife disseminated videos of the court proceedings to the agitator group “Veterans in Politics International,” friends and family, and a reporter with the Las Vegas Review-Journal. She admitted to knowing that Veterans in Politics would post the videos publicly.

The district court held that the Confidentiality Agreement included videos of proceedings and that the ex-wife’s dissemination of the videos violated the agreement. The district court ordered her to cease disseminating the videos and directed her to take “active measures” to remove the publicly posted videos of the proceedings.  The ex-wife appealed and said that the district court erred in (1) finding that she had disseminated videos of proceedings before and after the Confidentiality Agreement; (2) finding that the ex-husband timely objected to the dissemination of the videos; and (3) finding that dissemination of the proceeding videos breach the Confidentiality Agreement.

The district court did not err in finding that she had disseminated videos of proceedings before and after the Confidentiality Agreement because substantial evidence existed in the record to support the district court’s finding. More specifically, the ex-husband provided proof of when the videos were posted publicly. He also provided the ex-wife’s discovery responses and deposition transcript where she admitted to disseminating the videos.

The district court also did not err in finding that the ex-husband timely objected to the dissemination of the videos because there was an express provision in the Confidentiality Agreement that permitted the ex-husband to object at any point during the agreement’s duration. Thus, he timely objected pursuant to the agreement.

Last, the district court did not err in finding that dissemination of the proceedings videos breach the Confidentiality Agreement because the ex-wife acknowledged that the agreement’s purpose was to “to facilitate the disclosure of information,” which means that the purpose of the agreement was to protect information or date disclosed during discovery, not only the paper documents.

The Court of Appeals affirmed the district court’s decision because the ex-wife’s appeal failed on all three arguments that she presented.

 

In re: Guardianship of Sarnelli, No. 85698-COA, Order of Affirmance (Unpublished Disposition, Mar. 29, 2024)

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The uncle was appointed to be the guardian of the person and estate for his nephew in 2010. In 2019, issues arose concerning the uncle’s yearly accounting of the estate, and the district court ordered the uncle to provide receipts for expenditures over $250.

In 2022, the uncle submitted a petition for approval of accounting for December 2020 to December 2021, and the nephew’s counsel raised concerns with the proposed accounting.

The district court denied the petition because the uncle had been provided several opportunities to amend the accounting and send additional documents, but he had failed to do so. Then, the nephew’s counsel filed a petition to remove the uncle as guardian of the estate, which was granted.

On appeal, the uncle first asserted that he was denied due process, but he was not denied due process because he received notice when the district court issued him a citation to appear and show cause for why he should not be removed as guardian and the court provided him the opportunity to be heard both when he responded to the petition and at a hearing.

Next, the uncle argued that the district court abused its discretion by removing him as the guardian of the estate. However, the district court did not abuse its discretion here because the uncle failed to prove his point. It was his responsibility to ensure that a full and accurate record of the underlying proceedings was produced but he failed to do so.

Moreover, the district court’s determination was supported by substantial evidence. The evidence showed that the uncle mismanaged the estate by commingling his funds with the nephew’s, failing to support expenditures with receipts, and making expenditures that did not benefit the nephew.

The Court of Appeals affirmed the district court’s decision of removing the uncle as the guardian of the nephew’s estate.

 

Carney v. Moruri, No. 85614-COA, Order of Affirmance (Unpublished Disposition, Mar. 29, 2024)

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The ex-husband appealed from a district court post-divorce decree order awarding the ex-wife half of the value of the business as her community share.

The ex-husband first challenged the district court’s adjudication of the parties’ interests in the real estate business on two jurisdictional grounds. First, he argued that, because the district court did not resolve the ex-wife’s motion within six months of the decree’s entry, the court lost jurisdiction to later grant her NRCP 60(b) relief. However, the district court’s jurisdiction to entertain a motion for NRCP 60(b) relief depends on the date the motion was filed rather than the date that the courts acts upon the motion. Also, the district court granted the ex-wife’s motion pursuant to NRS 125.150(3), which allows a party to file a post-judgment motion within three years after the discovery by the aggrieved party of the facts constituting the fraud or mistake. Therefore, the ex-husband’s argument failed because the ex-wife moved for adjudication within the allowed time period.

Second, the ex-husband asserted that the district court lacked jurisdiction because the parties moved to Texas following entry of the decree. The district court possesses control over out-of-state property through jurisdiction over the parties and that the court can exercise such control to avoid multiplicity of suits. Lewis v. Lewis, 71 Nev. 301, 306, 289 P.2d 414, 417 (1955). Therefore, the ex-husband failed to demonstrate that the district court lacked jurisdiction to adjudicate the parties’ interests in the real estate business.

As to the merits of the district court’s decision, the ex-husband raised two arguments. First, he asserted that the business constituted his separate property because it had not made a profit or distributions prior to entry of the divorce decree. However, because the business was acquired after the marriage, it is community property.

Second, he argued that the district court improperly relied on the bank statements that the ex-wife submitted during the evidentiary hearing to establish the business’s value rather than looking to a professional appraisal. However, he did not raise this issue before the district court and failed to provide a transcript of the evidentiary hearing to this court, therefore, the appellate court presumed that the missing documents supported the district court’s decision.

The Court of Appeals affirmed the judgment of the district court awarding the ex-wife half of the value of the business as her community share.

 

McPherson v. Segno, No. 86043-COA, Order of Reversal and Remand (Unpublished Disposition, Apr. 10, 2024)

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Marla McPherson appealed from a district court order granting Ginamarie Segno’s motion to enforce the parties’ divorce decree and enter an amended Qualified Domestic Relations Order (QDRO).

The parties were divorced by stipulated decree of divorce in 2019. Pursuant to the terms of the decree, the parties agreed that Ginamarie would receive half of the community property portion of Marla’s NV PERS and half of the community share of two of Marla’s other retirement accounts. The decree further provided that “the parties will equally divide the costs of any QDROs that may be necessary to divide any assets, which will be prepared by Family Solutions for a total of $850 per QDRO.”

An amended QRDO was constructed, which held upon divorce, the community interest that each party has in the other’s retirement account became the separate property of the former spouse. Ginamarie moved the district court for an order directing Marla to execute the amended QRDO.

On appeal, Marla contended that the district court erred in enforcing the amended QDRO and awarding Ginamarie a survivorship benefit under Option 2 by ignoring the controlling precedent of Henson v. Henson.

In Wolff, the Supreme Court of the State of Nevada recognized, upon divorce, the community interest that one spouse has in the other spouse’s retirement account became the separate property of the former spouse. However, in Henson, which is a more recent controlling authority, “an allocation of a community property interest in the employee spouse’s pension plan does not also entitle the nonemployee spouse to survivor benefits.” Thus, the community property interest Ginamarie was awarded in the divorce decree is not sufficient by itself to entitle her to survivor benefits.

Because the district court relied upon Wolff instead of Henson, the district court did not address whether the parties reached an enforceable contract reflected by the initial QDRO that would modify the divorce decree and incorporate the provisions.

Because the district court erred in not applying Henson, the Court of Appeals reversed and remanded the district court’s decision, so that the district court could apply Henson.

Marshal S. Willick
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