Court of Appeals:

Pena v. Espinoza, No. 83862-COA, Order of Affirmance (Unpublished Disposition, Nov. 2, 2023)

The parties married in September 2018. Prior to the marriage, both parties resided in a house purchased in 2015. Both parties dispute the amount of involvement they had in the purchase of the home. Husband ultimately applied for the home loan through the VA. The loan and title document from the purchase reflected that Husband was the sole owner of the property. Husband paid the mortgage payments, and Wife paid the insurance and utility bills.

When they separated three months after getting married, Wife moved out of the house. Over a year later, Wife filed for divorce. Wife argued that she should receive half of the property as her community share and Husband argued that the property should be awarded to him in full as separate property.

After a trial in May 2021, the district court (Dawn Throne) found that Wife would be entitled to a pro rata share of the community interest in the appreciation of the property under Malmquist v. Malmquist, 106 Nev. 231, 792 P.2d 372 (1990).

Husband advocated for an alternative method (the Marsden formula – a California case) which would attribute all of the premarital appreciation in value (about $76,500) to his separate property, but Wife argued that the court should simply follow the Malmquist formula without modification. The district court rejected Husband’s request and he appealed.

The Court of Appeals affirmed the district court’s judgment. The COA found that the district court did not abuse its discretion when it determined the community interest of the property under Malmquist. Husband did not cite, and the COA could not find, any Nevada cases actually applying the Marsden analysis. Further, Husband did not assert that the premarital appreciation constituted the “vast bulk” of the property’s appreciation, which is a key component of the Marsden analysis.

 

Haer v. Reyes, No. 84078-COA, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, Nov. 15, 2023)

The parties were never married but have one minor child. Mom filed a complaint for custody. After paternity was confirmed, the district court (Shell Mercer) adopted the parties’ agreed upon parenting plan. Following a trial, the court concluded that Dad was willfully underemployed and imputed income to him of $7,006 per month, found that he owed arrears, and that Mom was entitled to attorney fees. Dad appealed.

Dad argued that the district court abused its discretion by imputing income to him. However, the Court of Appeals disagreed and found that there was substantial evidence to support the district court’s decision to impute income to him.

Further, the COA found that the district court did not abuse its discretion in modifying child support from what was awarded in the temporary child support order.

However, the COA did reverse the award of attorney fees because the district court failed to specify whether the award was pursuant to NRS 18.010(2)(a) or NRS 18.010(2)(b). Further, it failed to make any findings related to the same. The court did not demonstrate that it considered the disparity in income between the parties. The attorney fees issue was remanded to the district court for additional findings.

 

Roberson v. Roberson, No. 85635-COA, Order Affirming in Part, Reversing in Part, and Remanding (Unpublished Disposition, Nov. 15, 2023)

The parties have two minor children together.  Mom filed for divorce in 2018 and extensive litigation ensued. In the middle of the trial, the parties agreed that the children relocating with Mom was in their best interest. Also, the parties agreed to joint legal and physical custody until Mom relocated at which point she would have primary physical custody.

There was a dispute over the relocation language in the decree. The district court (Robert Estes) did not include Dad’s suggested language. Dad did not appeal from the divorce decree.

In December 2021, several days prior to Mom’s scheduled move to Arizona, Dad filed a motion to stay the relocation. Mom ended up moving with one child, but the other remained in Nevada to finish the school year. Dad later filed a motion to modify custody for the child (G.R.) who remained in Nevada., which the district court denied.  Dad appealed.

The COA found that the record demonstrates that the children’s consent to the relocation was not a condition precedent or a material term to the parties’ agreement.

However, the COA agreed with Dad that the district court erred in the denial of his request to modify child custody. The district court failed to hold an evidentiary hearing. Further, the COA concluded that Dad’s alleged facts (if proven at an evidentiary hearing) could demonstrate a substantial change in circumstances affecting the child’s welfare and support a conclusion that it is in the child’s best interest to modify custody.

However, the COA made it clear that it expressed no opinion with respect to the merits of Dad’s motion to modify custody. The matter was remanded for further proceedings.

 

Pederson v. Jeter, No. 86104-COA, Order of Affirmance (Unpublished Disposition, Nov. 17, 2023)

The parties have two minor children together and in 2017, Mom initiated custody proceedings after she alleged that Dad violently attacked and assaulted her in front of the children. Mom was awarded sole physical and legal custody over the children. Dad did not appeal that custody order and is currently incarcerated.

Dad filed a petition to establish correspondence with his minor children in 2022 to which Mom opposed. The district court (Aimee Banales) denied Dad’s motion finding that he did not set forth a sufficient basis to modify the prior custody order, and that he did not demonstrate that an evidentiary hearing was necessary. Dad moved for reconsideration which was denied. Dad appealed.

The Court of Appeals affirmed the district court’s denial and the court’s decision to deny his motion for reconsideration. The COA concluded that Dad’s motion to modify custody did not demonstrate that such a modification would serve the children’s best interest.

 

 

Marshal S. Willick
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