CONTE VS. CONTE

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the statutory-interpretation question de novo, citing Martin v. Martin, 138 Nev. 786, 789, 520 P.3d 813, 817 (2022), and applied the plain-language rule from Leven v. Frey, 123 Nev. 399, 403, 168 P.3d 712, 715 (2007). Alimony must be "just and equitable," NRS 125.150(1)(a); Rodriguez v. Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000), and the district court must consider the 11 statutory factors in NRS 125.150(9), including each spouse's financial condition and income. The court held that the plain language of NRS 125.165(1) - which prohibits a court, in making an award of alimony, from "[a]ttach[ing], levy[ing] or seiz[ing] by or under any legal or equitable process" federal disability benefits awarded to a veteran for a service-connected disability pursuant to 38 U.S.C. §§ 1101 to 1151 - precludes attachment, levy, or seizure but does not bar considering such benefits in calculating alimony. The court contrasted dictionary definitions of "consider" with "attach," "levy," and "seize," and, in a footnote, noted that although resort to legislative history was unnecessary under Bolden v. State, 139 Nev., Adv. Op. 46, 538 P.3d 1161, 1166 (Ct. App. 2023), the Assembly's deliberate removal of "shall not consider" from A.B. 140 (78th Leg. 2015) confirms the Legislature did not intend to prevent consideration, citing United States v. Youts, 229 F.3d 1312 (10th Cir. 2000). On federal preemption, the court relied on Rose v. Rose, 481 U.S. 619 (1987), which held that the predecessor of 38 U.S.C. § 5301(a)(1) did not preempt a Tennessee statute requiring consideration of financial resources in child-support awards, and distinguished Howell v. Howell, 581 U.S. 214 (2017), and Byrd v. Byrd, 137 Nev. 587, 501 P.3d 458 (Ct. App. 2021), as community-property division cases not involving alimony calculation. It noted Howell itself left open that a family court may take account of reductions in value when it calculates or recalculates the need for spousal support, 581 U.S. at 222, and observed (in a footnote) that most state courts, e.g., Urbaniak v. Urbaniak, 807 N.W.2d 621 (S.D. 2011), permit consideration of veterans' disability benefits in alimony determinations, while Ex Parte Billeck, 777 So.2d 105 (Ala. 2000), is an outlier. Applying harmless-error analysis under Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and NRCP 61, the court concluded reversal was required: including the $4,456.22 monthly benefit would have yielded a net monthly income for Wayne of $2,892.84, over $300 more than Jesusa's $2,587.66, and it could not say the termination decision would have been the same absent the error (citing Soldo-Allesio v. Ferguson, 141 Nev., Adv. Op. 9, 565 P.3d 842, 850 (Ct. App. 2025), and In re Guardianship of B.A.A.R., 136 Nev. 494, 500, 474 P.3d 838, 844 (Ct. App. 2020)). In footnotes, the court held (1) it was not an abuse of discretion to exclude Wayne's SSI while including Jesusa's SSD under Metz v. Metz, 120 Nev. 786, 793-96, 101 P.3d 779, 784-86 (2004), and (2) the retroactive termination to August 2022 was an abuse of discretion because the operative motion was filed in February 2023 and NRS 125.150(8) provides periodic alimony "is not subject to modification by the court as to accrued payments." On arrears, reviewing for abuse of discretion under Sprenger v. Sprenger, 110 Nev. 855, 859, 878 P.2d 284, 287 (1994), and Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), the court held the district court's sua sponte review and recalculation of the December 2014 judgment deprived Jesusa of notice and an opportunity to respond, citing Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652, 653-54 (1996). Independently, the recalculation was barred by claim preclusion under the three-part test of Martin, 138 Nev. at 793, 520 P.3d at 819 (reviewed de novo, Kuptz-Blinkinsop v. Blinkinsop, 136 Nev. 360, 364, 466 P.3d 1271, 1275 (2020)): the parties were the same; the 2014 order reducing arrears to judgment was a valid final judgment under NRS 125.180(1) and NRS 125.180(3); and Wayne had never appealed or otherwise challenged it. The court noted Shelton v. Shelton, 119 Nev. 492, 496, 78 P.3d 507, 509 (2003) (state courts may enforce divorce decrees that are res judicata even involving distributions of disability pay), and Mansell v. Mansell, 490 U.S. 581, 586 n.5 (1989). Wayne remained free to seek prospective modification under NRS 125.150(11)(b). On sanctions, reviewing for abuse of discretion under Simonian v. Univ. & Cmty. Coll. Sys. of Nev., 122 Nev. 187, 196, 128 P.3d 1057, 1063 (2006), and Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606, 615 (2014), the court held the district court failed to address any of the four grounds in Wayne's NRCP 11 motion, never determined whether Jesusa's opposition violated NRCP 11(b), and instead relied on authorities Wayne never cited (NRS 7.085, NRS 18.010(2)(b), EDCR 5.219, and NC-DSH, Inc. v. Garner, 125 Nev. 647, 650, 218 P.3d 853, 856 (2009)), based on a sua sponte investigation conducted without a hearing. This deprived Jesusa of "notice and a reasonable opportunity to respond" under NRCP 11(c)(1) and failed the requirement of NRCP 11(c)(6) that an order "describe the sanctioned conduct and explain the basis for the sanction." The court also cited Ford Motor Credit Co. v. Crawford, 109 Nev. 616, 621, 855 P.2d 1024, 1026 (1993) ("NRCP 11 is not implicated by a violation of other rules unless the violation of such other rule also constitutes a violation of NRCP 11."). The award was vacated and remanded for consideration of the motion's actual allegations, citing Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012). Finally, applying the three-factor reassignment test of Roe v. Roe, 139 Nev. 163, 180, 535 P.3d 274, 291 (Ct. App. 2023) (quoting Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987)), and exercising independent review under In re J.B., 140 Nev., Adv. Op. 39, 550 P.3d 333, 340 (2024), the court concluded reassignment to a different department was warranted to preserve the appearance of justice. The court declined to address the propriety of Jesusa's reliance on uncertified Rev.com transcripts (citing NRS 3.3860; NRS 3.380; NRAP 9; NRAP 10) because reassignment was granted on other grounds.

In plain language

Jesusa and Wayne Conte married in 1986 and divorced in 2012. Their divorce decree required Wayne, a military veteran whose only income comes from a retirement pension, supplemental security income, and veterans' disability income, to pay Jesusa $1,000 per month in alimony for 15 years. According to the opinion, Wayne refused to voluntarily pay, so Jesusa repeatedly had to go to court to garnish his pension (garnishment means taking money directly from a source of income under a court order). Over the years, courts entered judgments confirming what Wayne owed, including a December 2014 judgment for $16,307.50 in unpaid alimony (which the parties agree was later paid off) and a February 2021 judgment for $45,680.68. In February 2023, with the help of a pro bono attorney, Wayne asked the district court to eliminate or reduce his alimony. Among other things, he argued that a Nevada statute, NRS 125.165, barred the court from counting his veterans' disability payments as income when figuring out alimony. He also asked for sanctions under NRCP 11 - a court rule allowing penalties for improper filings - based on statements Jesusa made in her written opposition to his motion. Without holding a hearing, the district court granted both requests in January 2024. It refused to count Wayne's $4,456.22 per month in veterans' disability benefits as income, concluded that Jesusa's net income exceeded Wayne's, terminated the alimony, and made the termination retroactive to August 2022. On its own, the court also went back through a decade of the case's history, decided that the December 2014 order had "overcharged" Wayne by $6,698, credited that amount against his arrears, and imposed $5,000 in sanctions against Jesusa and/or her counsel based on its own review of past filings - not on the four arguments Wayne had actually made in his sanctions motion. The Nevada Court of Appeals reversed. First, it held that NRS 125.165 only forbids courts from attaching, levying, or seizing veterans' disability benefits to satisfy alimony - it does not stop a court from considering those benefits when calculating how much alimony a veteran can afford to pay. Federal law does not forbid such consideration either. If the district court had counted the disability benefits, Wayne's net monthly income would have been over $300 higher than Jesusa's, rather than negative, so the error could have changed the outcome. Second, the appellate court held that the district court should not have gone back and recalculated arrears from the 2014 order on its own. Wayne never asked for that, Jesusa had no notice or chance to respond, and the 2014 judgment was final and could not be reopened under the doctrine of res judicata (claim preclusion) - the rule that a valid, final judgment ends the dispute it resolved. Third, the court vacated the $5,000 sanctions award because the district court never addressed the arguments Wayne actually raised in his NRCP 11 motion and instead sanctioned Jesusa based on its own investigation of her filings over many years, without giving her the required notice and opportunity to respond. Finally, given these circumstances, the Court of Appeals directed that the case be reassigned to a different judge on remand "to ensure fairness in the ongoing proceedings."