ANSELL VS. ANSELL

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed determinations made in a divorce decree for abuse of discretion, citing Devries v. Gallio, 128 Nev. 706, 709, 290 P.3d 260, 263 (2012). Interpretation and construction of contract terms—including a premarital agreement—is a question of law reviewed de novo, citing Anvui, LLC v. G.L. Dragon, LLC, 123 Nev. 212, 215, 163 P.3d 405, 407 (2007) and Buettner v. Buettner, 89 Nev. 39, 44, 505 P.2d 600, 603 (1973); however, interpretation of an ambiguous contract presents a question of fact involving the parties' intent. The court declined to consider arguments lacking relevant authority and cogent argument, citing Edwards v. Emperor's Garden Rest., 122 Nev. 337, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). **Jurisdiction / notice of appeal.** Under NRAP 3(c)(1)(B), a notice of appeal must "designate the judgment, order or part thereof being appealed." Generally an order not identified in the notice is not considered on appeal (Collins v. Union Fed. Sav. & Loan Ass'n, 97 Nev. 88, 89-90, 624 P.2d 496, 497 (1981)), and the notice is a jurisdictional requirement (Forman v. Eagle Thrifty Drugs & Markets, Inc., 89 Nev. 533, 535-36, 516 P.2d 1234, 1235-36 (1973)). But the rule "is not inflexible" (Abdullah v. State, 129 Nev. 86, 90, 294 P.3d 419, 421 (2013)) and the notice "is not . . . intended to be a technical trap for the unwary draftsman" (Lemmond v. State, 114 Nev. 219, 220, 954 P.2d 1179, 1179 (1998)). Where intent to appeal from a final judgment can be reasonably inferred and the respondent is not misled, the court will not dismiss for technical defects, and may look beyond the face of the notice (Abdullah, 129 Nev. at 91, 294 P.3d at 421). The court surveyed the doctrine: a notice directed at a non-appealable order can serve as a notice directed at a subsequently entered appealable decision (Martinez v. Barr, 941 F.3d 907, 915-16 (9th Cir. 2019); Jones v. Chaney & James Construction Co., 399 F.2d 84, 85 (5th Cir. 1968)); Nevada infers intent to appeal an underlying order from a notice referencing a non-appealable notice of entry (Lemmond), a denial of JNOV (Krause, Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001)), and similar orders (Casino Operations, Inc. v. Graham, 86 Nev. 764, 765-67, 476 P.2d 953, 954-55 (1970); Donovan v. Esso Shipping Co., 259 F.2d 65, 68 (3d Cir. 1958)). Conversely, when the notice designates an independently appealable order, courts infer intent to appeal that order only (Welch v. State ex rel. Hwy. Dep't, 80 Nev. 128, 129-30, 390 P.2d 35, 35-36 (1964); Abdullah, 129 Nev. at 90, 294 P.3d at 422). The court noted the post-trial order contained both appealable aspects (granting attorney fees, appealable under Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000); granting a motion to alter or amend, appealable under NRAP 4(a)(5)) and a non-appealable aspect (denying Irina's motion to alter or amend, not independently appealable under AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010), and Klein v. Warden, 118 Nev. 305, 311 n.6, 43 P.3d 1029, 1033 n.6 (2002)). Applying Nevada's policy favoring merits adjudication (Theiss v. Rapaport, 57 Nev. 484, 66 P.2d 1000, 1002-03 (1937); Forman; NRAP 1(c)), the court held the non-appealable determination permitted a reasonable inference of intent to appeal the underlying decree, and that Doug was not misled or prejudiced. It therefore declined to dismiss and denied Doug's motion for partial dismissal. **Business valuation.** The court declined to reach Irina's contention that Section 13 of the prenuptial agreement contractually bound the district court to accept CPA Rosten's valuation. The argument was raised for the first time in her untimely post-trial countermotion and not addressed on the merits below (Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1378, 951 P.2d 73, 74 (1997); Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Arnold v. Kip, 123 Nev. 410, 417, 168 P.3d 1050, 1054 (2007)). It was also inadequately supported by record citations (NRAP 28(a)(10); NRAP 30(b)(3); Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002)) and not cogently argued, and the finder of fact may accept or reject expert testimony (Barrett v. Baird, 111 Nev. 1496, 1503, 908 P.2d 689, 694 (1995)). **Real property appreciation.** Applying de novo contract interpretation, the court held Section 13 gave Irina a mandatory community property interest in the increase in value of Doug's separate property. Although Nevada apportionment law (Devries, 128 Nev. at 710, 290 P.3d at 263) turns on a spouse devoting time, labor, and skill, parties may contract to obviate community property law (NRS 123A.050), and valid premarital agreements are enforceable as contracts (Buettner). Section 13's use of "shall" is mandatory (Am. First Fed. Credit Union v. Soro, 131 Nev. 737, 740-41, 359 P.3d 105, 107-08 (2015)), and clear, unambiguous contract terms are enforced as written (Ringle v. Burton, 120 Nev. 82, 93, 86 P.3d 1032, 1039 (2004)). Because the decree denied any appreciation interest for lack of evidence of personal effort, contravening Section 13, the court reversed and directed the district court on remand to determine the appreciation of Doug's real estate holdings and award Irina her interest. **Community debt.** While debts incurred during marriage are generally community obligations (NRS 123.220; Randano v. Turk, 86 Nev. 123, 131-32, 466 P.2d 218, 223-24 (1970)), spouses may contractually assign such debts as separate property (NRS 123.220(1)). Sections 20 and 21 made unsecured obligations and obligations tied to separate property the sole responsibility of the incurring party, and provided that debt is jointly acquired only if both parties sign a document agreeing to become indebted. Absent such a writing, the court held the itemized debts (loans against Doug's real property and expert witness fees) should have been assigned to Doug as separate debt; assigning them to the community was an abuse of discretion (Devries, 128 Nev. at 709, 290 P.3d at 263). **Post-separation income.** Income earned during marriage is presumptively community property (NRS 123.220), and this remains true after separation but before dissolution (Forrest v. Forrest, 99 Nev. 602, 607, 668 P.2d 275, 279). The decree's finding that all income was consumed by the parties' lifestyle addressed only pre-separation spending; the court held the district court abused its discretion by failing to consider whether Irina received her community interest in Doug's income between her October 2015 filing and the nunc pro tunc decree, and reversed and remanded for further findings. **Tax liability.** Income taxes incurred during marriage are community obligations under community property law (Rodgers v. Rodgers, 110 Nev. 1370, 1375, 887 P.2d 269, 273 (1994); Randano), but spouses can contractually shift tax liability (NRS 123.220). Section 21 addressed only Doug's pre-marriage IRS debt as his sole responsibility and was silent as to tax debt during the marriage. The court held the agreement susceptible to more than one reasonable interpretation—and thus ambiguous (Am. First Fed. Credit Union, 131 Nev. at 739, 359 P.3d at 106)—as to whether Irina could be liable for marital tax debt without a signed joint-indebtedness document. Because the district court made no findings on the parties' intent regarding the ambiguous language (Anvui), and because appellate courts do not resolve fact matters in the first instance (Liu v. Christopher Homes, LLC, 130 Nev. 147, 156, 321 P.3d 875, 881 (2014)), and because it remained unclear whether Irina received her community interest in Doug's income, the court reversed the tax characterization and liability determination and remanded. **Attorney fees.** Fees are appropriately vacated when a portion of the underlying order is reversed (Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 293 (Ct. App. 2023); Iliescu v. Reg'l Transp. Comm'n of Washoe Cnty., 138 Nev., Adv. Op. 72, 522 P.3d 453, 462 (Ct. App. 2022)). Because the court reversed part of the decree, Doug's status as "prevailing party" under NRS 18.010 might change, and it was no longer clear he beat the offer of judgment for purposes of NRS 125.141(4). The court vacated the fee award and noted that any award under NRS 125.141 would be limited to fees incurred after the October 2016 offer relating to the property rights the offer would have resolved (NRS 125.141(4)(b)). **Other matters.** The court declined to consider Irina's unsupported claim that Senior Judge Saitta signed Doug's proposed decree in retaliation for a judicial ethics complaint (Edwards; Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 997, 860 P.2d 720, 725 (1993); Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 482 (2023)), and declined to reassign the case, noting the Nevada Supreme Court had already rejected a related mandamus petition (Sanson v. Eighth Jud. Dist. Ct., No. 77363, 2019 WL 292981 (Nev. Jan. 18, 2019)).

In plain language

This is a divorce case between Irina and Douglas Ansell. Before marrying in 2012, the couple signed a prenuptial agreement—a contract that spells out, in advance, how property will be treated as "separate" (belonging to one spouse) or "community" (shared) and how it will be divided if they divorce. Doug's separate property included several businesses (called the Ansell companies) and real estate. The couple married, had one child, and Irina filed for divorce in October 2015. The case took years. The district court split it into three separate trials: one on child custody, one on whether the prenuptial agreement was valid (the court ruled it was and that it would govern the financial issues), and a third on how to divide the couple's assets. That third trial happened in December 2017, but the court did not actually issue the divorce decree until February 2021—more than three years later. The decree gave Irina some alimony, child support, and an "equalization payment" (a lump sum meant to balance out the division of property) of $972,471. After the decree, both sides filed motions. Doug asked the court to give him credit for personal income tax payments he had made, arguing those taxes were a shared community obligation, and he asked for attorney fees. The court agreed with Doug: it credited half his tax payments against what he owed Irina and awarded him attorney fees, which together wiped out his entire equalization payment obligation—reducing Irina's award to essentially zero. The court denied Irina's own late-filed motion as untimely. Irina then appealed. Before reaching the substance, the court had to deal with a technical problem: Irina's notice of appeal named only the November 2021 post-trial order, not the February 2021 decree. Doug argued this meant she could not challenge the decree at all. The court disagreed. It explained that Nevada strongly prefers deciding appeals on their merits rather than on technicalities, that Irina's intent to appeal the decree could be reasonably inferred from the circumstances, and that Doug was not misled or harmed. The court did, however, remind Irina's counsel to name every order they intend to appeal in the future. On the substance, the court reached mixed results. It rejected Irina's argument that the district court was required to accept a particular expert's much higher valuation of Doug's businesses (about $9.9 million in appreciation); the court found she had not properly preserved that argument, had not cited the record to support it, and had not cogently explained why the court was bound to adopt that valuation. But the court agreed with Irina on several other points. It held that the district court wrongly refused to give Irina any share of the increase in value of Doug's real estate. Under the plain language of the prenuptial agreement, Irina automatically got a community property interest in the appreciation of Doug's separate property—whether or not she had put personal time or effort into managing the properties. The court also held that the district court wrongly assigned certain of Doug's loans and debts to the community, because the prenuptial agreement said debts became joint only if both spouses signed a document agreeing to be jointly indebted, and no such document existed. The court further held that the district court failed to consider whether Irina received any benefit from Doug's income after the couple separated—income that, under Nevada law, is presumed to remain community property until the divorce is final. On the tax issue, the court found the prenuptial agreement was ambiguous about whether Irina could be liable for tax debt incurred during the marriage without a signed joint-indebtedness document, and the district court had not made the factual findings about the parties' intent needed to resolve that ambiguity. Because of that, and because it was unclear whether Irina received any of Doug's income during the relevant period, the court reversed the tax ruling and sent it back. Finally, because the court reversed parts of the decree, the attorney fee awards no longer rested on solid ground—it was no longer clear that Doug was the "prevailing party" or that he had beaten his settlement offer—so the court vacated (cancelled) the fee awards. The case returns to the district court to redo the affected portions.