New Cases Added to MLAW: Two COA Unpublished: Hall and Pickens

by | Sep 29, 2022 | Nevada Family Law Appeals | 0 comments

Hall v. Martin, No. 83979, Order of Affirmance (Unpublished Disposition, Sept. 22, 2022)

Though Diamond Hall and Justin Martin were never married, they had one child, G.M. together. On December 1, 2019, Diamond visited Justin’s house uninvited and unannounced, entering through the dog door and refusing to leave. Justin tried twice to retreat, but Diamond blocked his path in both instances. She was arrested and charged with trespass and battery constituting domestic violence. Afterwards, Diamond filed a complaint for child custody, and the subsequent custody trial found by clear and convincing evidence that she had committed two acts of domestic violence, battery and coercion, and another act of domestic violence in the past year. Thus, it was found to be in G.M.’s best interest that Justin have primary physical custody, with Diamond receiving parenting time for 48 hours every weekend.

On appeal, Diamond argued that the district court’s decision to proceed with the custody trial while her criminal trial had not been fully adjudicated violated her Fifth and Fourteenth Amendment rights, and that the district court abused its discretion when it failed to order Justin to introduce the complete video and audio files at the custody trials. The district court was not found to have violated Diamond’s Fifth and Fourteenth Amendment rights, however, because she failed to establish a true deprivation of her constitutional rights; she had chosen to testify at the custody trial as to self-defense, thereby voluntarily waiving her Fifth Amendment privilege, and had been given a fair opportunity to be heard alongside a notice of her hearing.

Furthermore, the district court did not abuse its discretion when it proceeded with the custody trial while Diamond’s criminal domestic violence trial was pending because 1) the custody case had been pending since 2019, 2) Diamond’s criminal matter had been continued several times before the district court eventually decided the child custody case would not be further continued, and 3) Diamond had not established that she was prejudiced by either the lack of another continuance or by taking the witness stand.

Finally, while it was not clear from the record whether Diamond was in actual or constructive possession of the full audio and video, she failed to show the district court abused its discretion in refusing to order Justin to produce the complete evidence files, and did  not allege how the additional evidence would have altered the district court’s order and findings at the custody trial. The rule of completeness would not have aided Diamond because of her failure to describe the expected content of the full video or show how it would have been exculpatory. Thus, the order of the district court was affirmed.

 

Pickens v. Michaels, No. 83491, Order of Affirmance (Unpublished Disposition, Sept. 22, 2022)

Dr. Danka Michaels and Thomas Pickens, formerly doctor and patient, held a Catholic wedding in Slovakia in April 2002, but were later found to be not legally married due to a lack of formal documentation registered with the Slovakian government. Despite this, the parties referred to themselves as husband and wife, purchased two real properties as spouses, and formed Patience One, LLC to purchase a commercial building. In 2016, however, Danka learned that Thomas was having an affair with another woman. When Danka and Thomas met with attorney Shannon Evans, who represented them individually in the past for real estate-planning matters, Thomas agreed that his interest in the two real properties and in Patience One should be assigned to Danka.

The following year, Thomas filed for divorce and requested that the court set aside the deeds of real property reissued in Danka’s name only, and to rescind his assignment of interest in Patience Once to her.  Later, he filed an amended complaint for equitable relief under the putative spouse doctrine and pursuant to an express or implied agreement between himself and Danka to hold property as if the parties were legally married.

At trial, tax professionals testified that Thomas had always known, and annually confirmed, that he was not married to Danka.  Thomas testified that he executed the transfer documents to make amends and did not do so because he was coerced, threatened, or otherwise forced. The district court found that Danka would receive the deeds to the two real properties in her name only, and affirmed the assignment of Thomas’ interest in Patience One to Danka, finding that the parties weren’t married and that the transfers of real property and the assignment of interest in Patience One were valid.

On appeal, Thomas argued that the district court abused its discretion by finding that: 1) community property by analogy under Michoff didn’t apply because of the parties’ pooling of assets and implied and actual partnership; 2) Thomas’ guilt over the affair resulting in his release of interest constituted sufficient consideration in transferring his interest in the properties and assignment of interest in Patience One to Danka; 3) there wasn’t a fiduciary or confidential relationship between the parties; 4) Thomas was not under undue influence when he transferred the properties to Danka; 5) the assignment of interest in Patience One was valid when it erroneously listed Thomas’ trust as the grantor instead of Thomas personally; and 6) Danka wasn’t unjustly enriched. Conversely, Danka argued that Thomas knowingly and voluntarily transferred the assets to her, and that substantial evidence supported the district court’s findings that community property by analogy did not apply.

The district court was found to have not abused its discretion in finding that community property by analogy did not apply; while some of the property was maintained jointly, the parties also made efforts to keep separate businesses and accounts, filed individual income tax forms, and when Thomas required money, he borrowed some from Danka instead of treating the loans as part of community debt.

Next, Thomas had not demonstrated the district court abused its discretion in determining that there was adequate consideration for property transfers because in circumstances where the consideration agreed upon has been accepted, the acceptance constitutes a waiver of any claim of inadequacy and, besides, he was relieved of all related debt. The elements of a gift were met (“a donor’s intent to voluntarily make a present transfer of property to a donee without consideration, the donor’s actual or constructive delivery of the gift to the donee, and the donee’s acceptance of the gift”), and Thomas’ transfer of his interest in both real properties constituted valid donative transfers.

Third, there was no breach of a fiduciary or confidential relationship because Thomas failed to establish that Danka was dishonest or didn’t proceed in good faith during the time the transfer documents were executed.

Fourth, Thomas wasn’t under undue influence when he transferred the assets; Thomas was the one who offered to transfer the real properties to Danka while was in Florida, and had already acknowledged at trial that he wasn’t threatened, harmed, or misled, and that he chose not to seek the advice of independent counsel before making the transfers.

Fifth, Thomas erroneously signed as a trustee of LV Blue Trust instead of in his individual capacity when executing the assignment of interest in Patience One. There was no way for Danka to have known of this clerical error, and thus the district court was right in ordering reformation to correct the documentation.

Finally, Thomas voluntarily executed the documents transferring the deeds to the two real properties to Danka such that they could be considered gifts, and Thomas testified at trial that he was voluntarily transferring his interests to Danka to make amends with her. Without any evidence of any benefit he expected to receive because of the transfer or even of any unjust enrichment to Danka, Thomas’ last claim of “unjust enrichment” failed as well. The judgment of the district court was affirmed.

Marshal S. Willick
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