CUNNING VS. CUNNING

Statutes cited

Key holdings

Practitioner summary

The panel (Gibbons, Bulla, Westbrook, JJ.) reviewed the district court's division of property and its attorney fee and alimony determinations for abuse of discretion, and applied the substantial-evidence standard to the underlying findings. See Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010); Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004) (substantial evidence is that which a reasonable person may accept as adequate to sustain a judgment). On community debt, the court affirmed the equal division under NRS 125.150(1)(b). Although the district court had recited Chris's arguments that Lisa's expenditures were frivolous, it ultimately found that both parties "spent considerably more than they earned and incurred debt as a result," and that this was not a compelling reason to divide the community unequally. The panel relied on Putterman v. Putterman, 113 Nev. 606, 609, 939 P.2d 1047, 1048-49 (1997), for the proposition that disproportionate consumption of community property does not present a compelling reason for unequal disposition. On separate property reimbursement, the court applied Cord v. Cord, 98 Nev. 210, 214, 644 P.2d 1026, 1029 (1982) (separate property used to pay community expenses "when community assets are exhausted" entitles the separate estate to reimbursement) and distinguished Robison v. Robison, 100 Nev. 668, 671, 691 P.2d 451, 454 (1984) (a conscious choice to use separate rather than available community property constitutes a gift to the community). The panel found substantial evidence that the parties had depleted all or nearly all community assets before divorce and that Chris's commission income would be insufficient, requiring him to draw on separate property. The court also affirmed reimbursement of the temporary spousal support paid to Lisa, reviewing the spousal-support order for abuse of discretion under Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 918-19 (1996). Applying NRS 123.110, the district court found that because Lisa was capable of self-support — she had separate property funds and failed to comply with the order to seek employment — the statutory duty to support a spouse "from infirmity ... not able or competent to support himself or herself" did not apply. The panel reversed only the $3,500 supplemental reimbursement for the two 2000 Honda XRs, because the district court had awarded Chris both the physical items as separate property and monetary reimbursement for the same items without record support that they had been lost or sold to pay community expenses. The panel reinstated the original $115,620 reimbursement. The court declined to reach the marital waste and hidden asset claims because Lisa represented at trial that she was no longer pursuing them, invoking Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010) (parties may not raise a new theory on appeal inconsistent with or different from the one raised below). Additional arguments regarding Chris's alleged failures to obey orders, disclose assets, and pay support were rejected as unpreserved or inadequately supported under Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), and Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). In a footnote, the court addressed Lisa's alternative marital-residence-equity argument, applying Dieleman v. Sendlein, 99 Nev. 768, 770, 670 P.2d 578, 579 (1983) (the trier of fact resolves conflicting evidence and judges credibility). On alimony, the panel applied the deferential standard of Gardner v. Gardner, 110 Nev. 1053, 1055-56, 881 P.2d 645, 646 (1994), and the "just and equitable" standard of Shydler v. Shydler, 114 Nev. 192, 199, 954 P.2d 37, 41 (1998), noting that the district court must consider the eleven factors listed in NRS 125.150(9). The district court weighed those factors, found Lisa was highly educated, presented no evidence of an inability to work, and had failed to comply with the order to prepare for financial independence, and found she had not supported her request for rehabilitative alimony under NRS 125.150(10) with relevant evidence. Finding substantial evidence, the panel affirmed. On attorney fees, the panel first held that Lisa waived any challenge to the amount awarded on her own counsel's lien-adjudication motion because she failed to oppose it below (Old Aztec Mine). Reviewing the fee determinations for abuse of discretion under Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005), the panel affirmed the offset of fees against Lisa's community share. It upheld the award of Chris's attorney and expert fees under NRS 18.010(2)(b), which authorizes fees where a claim "was brought or maintained without reasonable ground or to harass the prevailing party," and which the Legislature directed courts to construe liberally in favor of awarding fees. Applying Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009) (a claim is frivolous or groundless if there is no credible evidence to support it), the panel found no abuse of discretion given the district court's finding that Lisa pursued marital waste and hidden asset claims up to trial before abandoning them. The record showed the district court considered the parties' income disparity under Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998), and the Brunzell factors, see Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969), and Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015). Lisa's failure to challenge the amount and reasonableness of Chris's fee award waived that argument. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). The panel noted under NRAP 46A(c) that although it generally will not grant a pro se appellant relief without allowing the respondent to file an answering brief, no answering brief was ordered because it would not aid resolution.

In plain language

Lisa and Chris Cunning married in 2000 and had two children. During the marriage, Lisa homeschooled the children and managed the home while Chris, a commercial real estate agent and licensed stockbroker, handled the family's finances and investments. Lisa alleged that Chris began trading in futures without her knowledge in 2013 and by 2018 had lost all of the couple's shared savings. Both spouses, however, had inherited separate money kept in accounts that stayed intact. Lisa filed for divorce in January 2020. Among other things, she asked the court to award her alimony (ongoing financial support), divide the couple's property and debts, and reimburse her for "marital waste" — a claim that Chris had wasted, hidden, or squandered money that belonged to both of them. She pursued extensive investigation, hiring a forensic accountant, subpoenaing more than 27 financial institutions, and generating over 10,000 pages of records. Because Lisa had no income, the court ordered Chris to pay her $2,000 a month in temporary support during the divorce and to keep paying the shared household expenses. But the court noted that because the couple's shared assets were nearly gone, if Chris was using his own separate money to cover shared expenses, whether he should be paid back would be decided at trial. Later, after the couple's minor child finished high school, the court told Lisa to look for a job to become financially independent. At trial, Lisa did not call her forensic accounting expert and did not use the financial records she had gathered to support her marital waste claim. She told the court she was no longer pursuing that claim and instead tried to enforce what she said was an oral promise by Chris to give her his interest in the family home. Her only evidence of this promise was her own testimony. Chris called a rebuttal expert who testified about the time and cost of responding to Lisa's discovery requests. The court divided the property and debts, reimbursed Chris for the separate money he had contributed, and awarded Lisa alimony of $3,000 a month for 84 months (seven years). It also decided that attorney fees were appropriate for both sides. In later orders, the court required Lisa to pay her own lawyers' liens out of her share of the property and to pay part of Chris's attorney and expert fees because her marital waste claim was, in the court's view, pursued without reasonable grounds. After all the additions and subtractions, Chris received $751,190.75 and Lisa received $322,377.16, with more to come once the family home sold. The Court of Appeals upheld nearly all of the district court's decisions. It agreed that the community debts were properly divided equally, that Chris was entitled to be reimbursed for separate money he spent covering shared expenses (including the temporary support paid to Lisa), that the alimony award was supported by the evidence, and that requiring Lisa to pay attorney fees was within the court's discretion. The appeals court declined to revisit the marital waste and hidden asset claims because Lisa had told the trial court she was dropping them. The one place the appeals court sided with Lisa involved two 2000 Honda XR motorcycles. The court had given Chris the physical motorcycles as his separate property and also awarded him an extra $3,500 as reimbursement for those same motorcycles. Because Chris received both the items themselves and money for them — with no evidence the items had been sold or lost to pay shared expenses — the appeals court reversed that $3,500 add-on and restored the original $115,620 reimbursement figure from the initial decree.