CARNEY VS. MORURI

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's order setting aside a divorce decree and adjudicating an omitted asset for abuse of discretion, reviewing factual findings deferentially (not to be set aside unless clearly erroneous or unsupported by substantial evidence) and questions of law, including jurisdiction, de novo. Vargas v. J Morales Inc., 138 Nev., Adv. Op. 38, 510 P.3d 777, 780 (2022); Ogawa v. Ogawa, 125 Nev. 660, 667-68, 221 P.3d 699, 704 (2009). **First jurisdictional argument (timeliness).** Carney argued the district court lost jurisdiction because it did not resolve Moruri's NRCP 60(b) motion within six months of the decree. The court held that jurisdiction to entertain an NRCP 60(b) motion depends on the date the motion was filed, not the date the court acts. NRCP 60(c)(1); Doan v. Wilkerson, 130 Nev. 449, 453-54, 327 P.3d 498, 501 (2014), superseded by NRS 125.150(3) on other grounds, as recognized in Kilgore v. Kilgore, 135 Nev. 357, 364-65, 449 P.3d 843, 849 (2019). The court further noted the district court also granted relief under NRS 125.150(3), which permits a postjudgment motion to adjudicate an asset omitted due to fraud or mistake within three years after discovery, and which was enacted to supersede Doan. See 2015 Nev. Stat., ch. 180, preamble, at 860. Because Moruri moved within six months of entry, the argument failed. **Second jurisdictional argument (relocation to Texas).** Carney argued the district court lacked jurisdiction because the parties relocated to Texas. The court observed Carney did not dispute the district court obtained personal jurisdiction at the outset, and that unraised arguments are waived and personal jurisdiction challenges must be timely raised. Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011); NRCP 12(h)(1); Hansen v. Eighth Jud. Dist. Ct., 116 Nev. 650, 656-57, 6 P.3d 982, 986 (2000). Personal jurisdiction over the parties supported adjudication of out-of-state property. Lewis v. Lewis, 71 Nev. 301, 306, 289 P.2d 414, 417 (1955). The court cited NRS 125.150(3) for continuing jurisdiction and, as persuasive authority, Barker v. Barker, 757 S.E.2d 42, 45 (Ga. 2014). **Merits—characterization as community property.** Carney argued the business was separate property because it had made no profit or distributions before entry. The court applied the rule that property acquired after marriage is community property unless an exception applies. NRS 123.220. Carney did not argue any recognized exception or direct the court to clear and convincing evidence of separate character. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006); Lopez v. Lopez, 139 Nev., Adv. Op. 54, 541 P.3d 117, 125 (Ct. App. 2023). **Merits—valuation via bank statements.** Carney argued the district court should have relied on a professional appraisal rather than Moruri's bank statements. The court found Carney did not raise the valuation/appraisal issue in his motion practice, and did not provide a transcript of the evidentiary hearing showing he raised it or introduced contrary evidence. NRAP 9(b)(1)(B); Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (missing documentation presumed to support the district court's decision); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (points not urged below are waived). The court concluded Carney did not demonstrate an abuse of discretion and affirmed. Vargas, 138 Nev., Adv. Op. 38, 510 P.3d at 780.

In plain language

Kassim Carney and Susan Moruri divorced through a stipulated decree of divorce—a divorce judgment the two sides agreed to. That decree divided their shared property and debts, and both parties represented that they had made a "full and fair disclosure" of their assets. Less than six months after the divorce, Moruri asked the court to set aside the decree under a court rule (NRCP 60(b)). She argued, among other things, that Carney had formed a real estate business and had not disclosed it before the divorce was finalized. Carney did not initially file a response, and the court first granted Moruri's request. Carney then filed a combined motion asking the court to reconsider and opposing Moruri's motion, arguing that the business had no value when the decree was entered. The court granted his request to reconsider and scheduled an evidentiary hearing—a hearing where evidence is presented. After that hearing, the district court sided with Moruri on the real estate business. It found that the business was an "omitted asset" because Carney had not disclosed it, that bank statements Moruri submitted showed the business was worth $69,877.12 when the decree was entered, that Carney had not shown he owned less than 100 percent of the business, and that Moruri was therefore entitled to $34,938.56—half the business's value. Carney appealed. On appeal, Carney raised two arguments about the court's power (jurisdiction) to decide the issue and two arguments about the merits. First, he argued the court lost the power to grant relief because it did not resolve Moruri's motion within six months of the decree. The appellate court explained that the deadline depends on when a motion is filed, not when the court rules on it, and that Moruri had also relied on a Nevada statute (NRS 125.150(3)) that gives a party up to three years after discovering fraud or mistake to ask the court to divide an omitted asset. Because Moruri filed within six months, this argument failed. Second, Carney argued the court had no jurisdiction because the parties had moved to Texas after the divorce. The appellate court noted Carney did not dispute that the district court had personal jurisdiction over the parties from the start of the case, and explained that this jurisdiction continued and allowed the court to decide the parties' interest in the business, even though the business was formed in Texas. On the merits, Carney argued the business was his separate property because it had not made a profit or distributions before the divorce. The appellate court explained that under Nevada law, property acquired during marriage is presumed to be community (shared) property unless an exception applies, and Carney did not argue any exception applied or point to clear and convincing evidence that the business was separate property. Finally, Carney argued the court should have relied on a professional appraisal rather than the bank statements Moruri submitted to value the business. The appellate court found that Carney had not raised the valuation or appraisal issue before the district court, and that he had not provided a transcript of the evidentiary hearing showing he raised it there or offered contrary evidence. Because of this, the court presumed the missing record supported the district court's decision. The appellate court affirmed.