BYRD VS. BYRD

Statutes cited

Key holdings

Practitioner summary

Standard of review. The denial or grant of a motion under NRCP 60(b) is reviewed for abuse of discretion, with no deference to legal error. Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996); AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010); Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). A district court's decision whether to permit audiovisual testimony is also reviewed for abuse of discretion. LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 395, 422 P.3d 138, 140 (2018). NRCP 60(b)(6). The court reaffirmed that "[a] decree of divorce cannot be modified or set aside except as provided by rule or statute." Kramer v. Kramer, 96 Nev. 759, 761, 616 P.2d 395, 397 (1980). NRCP 60(b)(6), recently conformed to FRCP 60(b)(6), is "available only in extraordinary circumstances," Buck v. Davis, 580 U.S. ___, 137 S. Ct. 759, 777 (2017), and is mutually exclusive of clauses (1)-(5). Klapprott v. United States, 335 U.S. 601, 613-15 (1949); 11 Wright, Miller & Kane, Federal Practice and Procedure § 2864 (3d ed. 2012); see also Tanner v. Yukins, 776 F.3d 434, 443 (6th Cir. 2015). Because Caterina's allegations - that Grady "misinformed" her about the value of his pension - sounded in fraud, misrepresentation, mistake, or excusable neglect, they fell within NRCP 60(b)(1) or (b)(3), not (b)(6). The six-month limit of NRCP 60(c)(1) (applicable to divorce decrees, see Mizrachi v. Mizrachi, 132 Nev. 666, 673, 385 P.3d 982, 986 (Ct. App. 2016); Kramer, 96 Nev. at 762-63, 616 P.2d at 397-98) had run, so relief was unavailable on either basis. Federal interpretations of FRCP 60 are persuasive given the rules' parallel text. McClendon v. Collins, 132 Nev. 327, 330, 372 P.3d 492, 494 (2016). The panel observed that the district court has inherent authority to interpret and enforce its decrees, Henson v. Henson, 130 Nev. 814, 820 n.6, 334 P.3d 933, 937 n.6 (2014); In re Water Rights of the Humboldt River, 118 Nev. 901, 906-07, 59 P.3d 1226, 1229-30 (2002); Kishner v. Kishner, 93 Nev. 220, 225, 562 P.2d 493, 496 (1977), and remanded for the district court to consider Caterina's enforcement motion under that authority and, as relevant, NRS 125.150. Federal preemption of disability-based indemnification. Under 10 U.S.C. § 1408(c)(1), states may treat veterans' disposable retired pay as divisible community property, but amounts deducted "as a result of a waiver . . . required by law in order to receive" disability benefits are excluded by 10 U.S.C. § 1408(a)(4)(B). Howell v. Howell, 581 U.S. ___, 137 S. Ct. 1400, 1403 (2017); Mansell v. Mansell, 490 U.S. 581, 594-95 (1989). Howell holds that "[r]egardless of their form, such reimbursement and indemnification orders" are preempted, 581 U.S. at ___, 137 S. Ct. at 1406, and that the timing of the waiver is irrelevant, id. at ___, 137 S. Ct. at 1405. Because the district court ordered Grady to reimburse Caterina "from [his] military pension disability," the order is preempted and invalid. The court distinguished Shelton v. Shelton, 119 Nev. 492, 78 P.3d 507 (2003), where the obligation was not directed to come from the veteran's disability pay; the panel also noted Shelton predates Howell. The opinion acknowledges that, consistent with Howell, a court setting or recalculating spousal support may take into account that a portion of military retirement pay has been or may be waived. Howell, 518 U.S. at ___, 137 S. Ct. at 1406. (References to 38 U.S.C. § 5305 and 10 U.S.C. § 1408 appear in the parties' arguments.) Audiovisual appearance under SCR Part IX-B(B). The rules direct that "courts shall permit parties, to the extent feasible, to appear by simultaneous audiovisual transmission equipment at appropriate proceedings," SCR Part IX-B(B)(2), with "shall" being mandatory under SCR Part IX-B(B)(1)(5). Trials and evidentiary hearings are appropriate proceedings on a showing of good cause. SCR Part IX-B(B)(4)(1)(a). Good cause is assessed under the multi-factor list in SCR Part IX-B(B)(1)(6)(a)-(k), including timeliness of objection, prejudice, convenience, cost, effective cross-examination, and importance of live testimony. The Rules "favor accommodation of audiovisual testimony upon a showing of good cause." LaBarbera, 134 Nev. at 395, 422 P.3d at 140. The district court here made no good-cause findings on the record, which would ordinarily be an abuse of discretion. However, the evidentiary hearing was set jointly with a show-cause hearing, and SCR Part IX-B(B)(4)(2)(b) requires personal appearance at show-cause hearings. On that record - and given Grady did not address the point in his reply brief - the panel could not conclude the district court abused its discretion by requiring his personal appearance. The opinion suggests that, going forward, district courts may bifurcate a show-cause hearing from a substantive evidentiary hearing to allow remote participation in the latter, citing LaBarbera, 134 Nev. at 396, 422 P.3d at 140, and Fisher v. McCrary Crescent City, LLC, 972 A.2d 954, 983 (Md. Ct. Spec. App. 2009).

In plain language

Grady and Caterina Byrd divorced in 2014 after a long marriage during which Grady served in the military. Their marital settlement agreement, which was folded into the divorce decree, said neither spouse would pay the other alimony, but Grady would pay Caterina $1,500 per month to help with her mortgage, and Caterina would receive 50 percent of Grady's military retirement pay. For about four years, Grady paid Caterina $3,000 per month total. In 2018 he stopped paying without explanation, and Caterina went back to court to enforce the decree. During that litigation, it came out that before the divorce Grady had waived nearly $3,000 of his monthly military retirement pay in order to receive veteran's disability benefits instead. Because of that waiver, Caterina's 50 percent share of the pension was actually only about $64.20 per month, not the roughly $1,500 she believed she was getting. Caterina argued Grady had misrepresented his retirement income at the time of the divorce and asked the court to reopen the decree. The district court agreed, used NRCP 60(b)(6) - a catch-all rule that allows a court to set aside a judgment for "any other reason that justifies relief" - to set aside parts of the decree, and ordered Grady to pay Caterina lifetime alimony out of his disability benefits. The court also refused to let Grady, who lives in the Philippines and submitted notes from three healthcare providers saying he could not fly internationally, appear at the evidentiary hearing by video. He did not attend, and his side of the story was never heard at the hearing. The Court of Appeals reversed on three points. First, NRCP 60(b)(6) was the wrong tool. That subsection is reserved for "extraordinary circumstances" not already covered by the rule's other, more specific subsections. Caterina's complaint - that Grady misled her about the value of his pension - is exactly the kind of fraud-or-mistake claim that fits under NRCP 60(b)(1) or 60(b)(3). Those subsections come with a six-month deadline, which had long since passed. A party cannot use the catch-all subsection to escape that deadline. Second, federal law forbids what the district court did with the disability money. Under U.S. Supreme Court decisions Mansell v. Mansell and Howell v. Howell, when a veteran waives part of his retirement pay to receive disability benefits, state courts cannot order him to reimburse or indemnify his former spouse out of those disability benefits - no matter what label (alimony, community property, reimbursement) the state court uses. The district court's order requiring Grady to pay Caterina "from [his] military pension disability" is precisely what federal law prohibits. Third, on the video-appearance issue, Nevada Supreme Court Rules Part IX-B(B) generally favor letting parties appear by audiovisual transmission and require courts to evaluate "good cause" using a list of factors. The district court here did not analyze those factors on the record. However, because the evidentiary hearing was combined with a show-cause hearing on Grady's failure to pay - and the rules require personal appearance at a show-cause hearing - the appellate court could not say the district court abused its discretion in requiring Grady to appear in person on this particular occasion. The Court of Appeals noted that on remand, if Grady asks again, the district court must actually consider the good-cause factors, and it suggested trial courts can split a show-cause hearing from a separate evidentiary hearing so a party can still appear remotely for the latter. The case now goes back to the district court, which is told to reconsider Caterina's enforcement motion under proper authority - including possibly NRS 125.150, which permits modification of alimony in some circumstances - and to handle any future remote-appearance requests by working through the required factors.