DOUGLAS VS. DOUGLAS

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the denial of attorney fees in a divorce proceeding for abuse of discretion, citing Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). It reiterated that attorney fees and costs are not recoverable unless authorized by statute, rule, or contract. Miller, 121 Nev. at 623, 119 P.3d at 730. Under NRS 18.010(2)(b), a prevailing party may recover fees only if the district court makes specific findings that the opposing party brought or maintained a claim "without reasonable ground or to harass the prevailing party." The court cited Frederic & Barbara Rosenberg Living Tr. v. MacDonald Highlands Realty, LLC, 134 Nev. 570, 580, 427 P.3d 104, 113 (2018), defining a groundless claim as one unsupported by credible evidence, and EDCR 5.219, which permits sanctions in domestic actions on various grounds, including multiplying "the proceedings in a case so as to increase costs unreasonably and vexatiously." The court noted that although Christopher had cited EDCR 7.60(b), EDCR 5.219 now addresses sanctionable conduct in the family division, and the order on appeal noted EDCR 5.219 as the applicable rule. To the extent Christopher argued for costs, he presented argument only under EDCR 5.219, and the court limited its review accordingly, citing Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (unraised issues are waived). The court applied the substantial-evidence standard: factual findings will not be set aside if supported by substantial evidence — evidence a reasonable person may accept as adequate to sustain a judgment — citing Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007), and noting that it is not the appellate court's role to weigh conflicting evidence or assess witness credibility, id. at 152, 161 P.3d at 244. See also Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Applying that framework, the court observed that the district court had found both parties prevailed on certain issues and, critically, had not found that Joy brought or maintained any claim or defense "without reasonable ground" or to harass Christopher. Joy testified in support of her claims — and testimony is evidence, In re DISH Network Derivative Litigation, 133 Nev. 438, 445 n.3, 401 P.3d 1081, 1089 n.3 (2017). Although Joy did not prevail on custody, relocation, alimony, and transportation costs, the record did not demonstrate an absence of credible evidence rendering the claims frivolous, vexatious, or harassing. The court invoked Pub. Emps. Ret. Sys. of Nev. v. Gitter, 133 Nev. 126, 136, 393 P.3d 673, 682 (2017) (whether a claim ultimately succeeds is not dispositive of whether it was brought or maintained without reasonable grounds), and Rivero v. Rivero, 125 Nev. 410, 441, 216 P.3d 213, 234 (2009) (a losing, even meritless, motion is not alone sufficient to find it frivolous warranting sanctions), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022), abrogated on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op. 43, 535 P.3d 1167, 1171 (2023). Because adequate grounds supported the district court's decision, the court held there was no abuse of discretion and affirmed.

In plain language

Christopher and Joy Douglas married in 2015 and had one child together. In June 2022, Christopher filed for divorce and asked to be the child's primary caretaker. Joy asked to be primary caretaker as well and to move the child to Iowa, where she was already living. After holding a hearing, the district court sided with Christopher on the major issues: it gave him primary physical custody, denied Joy's request to move the child to Iowa, denied her request for alimony (spousal support), and denied her request that Christopher pay for the child's travel to Iowa for her parenting time. Both sides had asked the court to make the other pay their attorney fees. Christopher asked for fees under a state law (NRS 18.010(2)(b)) that allows a winning party to recover fees when the other side pursued a claim without reasonable grounds or to harass, and under a local court rule (EDCR 5.219) that allows sanctions for things like filing frivolous positions or dragging out a case to run up costs. The district court found that both parties actually won on some issues and lost on others, and — importantly — that neither party had pursued the case without reasonable grounds or to harass the other, and that neither had taken an unwarranted position or needlessly prolonged the litigation. So the court denied fees under those provisions. The court separately found Joy was entitled to fees under a different divorce-fees statute (NRS 125.040), but that part of the case was not before the appellate court. Christopher appealed the denial of his own fee request. He argued that Joy's positions — asking for custody and relocation without meeting the requirements, asking for alimony while (he said) being deliberately underemployed, and asking him to pay travel costs even though she was the one moving — were frivolous, and that because he won on the big issues he should get his fees. The Court of Appeals disagreed. It explained that whether a claim ultimately loses is not the same as whether it was frivolous or brought without reasonable grounds. Joy had testified at the hearing in support of her requests, and the record did not show her claims lacked any credible support. Because the district court had adequate grounds for its decision, the appellate court could not say the trial judge abused her discretion, and it affirmed (upheld) the denial of Christopher's fees.