EINIGER VS. DIST. CT. (EINIGER) (FAMILY)

Statutes cited

Key holdings

Practitioner summary

This is an original writ proceeding. A writ of mandamus is available to compel the performance of an act the law requires or to control a manifest abuse or an arbitrary or capricious exercise of discretion (NRS 34.160; Price v. Second Jud. Dist. Ct., 141 Nev., Adv. Op. 17, 567 P.3d 319, 321 (2025)), and is appropriate where the petitioner lacks a plain, speedy, and adequate remedy at law (NRS 34.170; Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991)). Issuance is "purely discretionary with this court." Smith, 107 Nev. at 677, 818 P.2d at 851. The court found the writ vehicle appropriate. An order denying a motion to expunge a lis pendens is not substantively appealable under NRAP 3A(b). A future appeal from a final judgment is not an adequate remedy because a lis pendens impedes the property's marketability and "may cause substantial hardship to the property owner." Levinson v. Eighth Jud. Dist. Ct., 109 Nev. 747, 751, 857 P.2d 18, 21 (1993) (abrogated on other grounds by Tahican v. Eighth Jud. Dist. Ct., 139 Nev. 11, 15, 523 P.3d 550, 554 (2023)). The district court's stated willingness to lift the notice upon a demonstrated viable sale did not cure the immediate adverse impact on title and marketability. On the merits, the standard of review is manifest abuse of discretion. Zhang v. Eighth Jud. Dist. Ct., 120 Nev. 1037, 1043, 103 P.3d 20, 24 (2004). A lis pendens is constructive notice that described real property is the subject of a pending lawsuit. NRS 14.010(3). It may be recorded upon the filing of a complaint that "affect[s] the title or possession of real property." NRS 14.010(1). But "[a]s a general proposition, lis pendens are not appropriate instruments for use in promoting recoveries in actions for personal or money judgments; rather their office is to prevent the transfer or loss of real property which is the subject of dispute in the action that provides the basis for the lis pendens." Levinson, 109 Nev. at 750, 857 P.2d at 20; see also Tahican, 139 Nev. at 16, 523 P.3d at 554 ("[A] lis pendens may not be used in place of a writ of attachment to secure the ultimate collection of an anticipated money judgment."). Even where the action relates to the specific property, a lis pendens is inappropriate in a case involving only monetary claims. Weddell v. H2O, Inc., 128 Nev. 94, 106, 271 P.3d 743, 751 (2012) (abrogated on other grounds by Tahican). If, after a hearing, the recording party cannot demonstrate that the action affects title or possession, the district court must order the lis pendens expunged. NRS 14.015(5). Applying this framework, the court determined that Kimberly's post-decree motion sought only to reduce arrearages to judgment under NRS 125.180, and never asserted an interest affecting real property. Her claim for a money judgment based on Kenneth's noncompliance with the stipulated decree is purely monetary and does not warrant a lis pendens on his separate property. See Weddell, 128 Nev. at 106, 271 P.3d at 751. As to fraud, the court recognized that a fraudulent transfer constitutes an action "affecting the title or possession of real property" under NRS 14.010(1). See Tahican, 139 Nev. at 16-17, 523 P.3d at 554. However, Kimberly did not bring a fraudulent-transfer claim in her initial post-decree motion, which sought only relief under NRS 125.180. Although she raised fraud in her opposition to the motion to expunge, her vague allegations were insufficient: she failed to state the circumstances of fraud with particularity as required by NRCP 9(b), and failed to identify a specific category of fraud (actual or constructive) demonstrating that the attempted sale constituted a fraudulent transfer. See NRS 112.180(1)(a)-(b). The opinion notes in a footnote that a UFTA fraudulent transfer claim is a claim by a creditor that a debtor transferred property with intent to defraud the creditor by placing it out of reach. NRS 112.180(1)(a); see also Herup v. First Bos. Fin., LLC, 123 Nev. 228, 232, 162 P.3d 870, 872 (2007). The court also rejected Kimberly's argument that NRS 125.220 authorizes recording a lis pendens in post-divorce proceedings, explaining that the statute falls within the separate maintenance provisions of NRS 125.190-.280 and does not apply to these proceedings. See Davidson v. Davidson, 132 Nev. 709, 718, 382 P.3d 880, 883 (2016) (holding that NRS 125.240, applicable to separate maintenance actions, does not apply to divorce proceedings). Concluding that Kimberly's claims were limited to monetary obligations under the divorce decree, lacked sufficient fraud allegations at this time, and did not involve any claim affecting title to or possession of the property, the court held that the district court manifestly abused its discretion in denying the motion to expunge and granted the petition.

In plain language

Kenneth and Kimberly Einiger divorced in October 2014 through a stipulated divorce decree — a divorce settlement the parties agreed to and the court approved. Under that decree, Kenneth took on significant financial obligations to Kimberly, including alimony of $5,000 per month for life (with a 2.5 percent annual increase), her housing costs, various health-related expenses, a monthly credit card allowance, and continued payments on a two-million-dollar life insurance policy naming Kimberly as the sole beneficiary. Kenneth did not fully comply, including with his alimony obligations. Kimberly asked the court to convert the unpaid amounts into a formal money judgment. While that request was pending, Kimberly learned that Kenneth had listed for sale a condominium he had bought after the divorce, and that a sale was pending. She recorded a lis pendens against that condominium. A lis pendens is a public notice that a piece of real estate is tied up in a lawsuit; it warns potential buyers and lenders about the dispute. Because the notice clouded the condo's title, the pending sale collapsed. Kenneth filed an emergency motion to remove (expunge) the lis pendens. The district court denied the motion but said it would consider lifting the notice if Kenneth could show a real, viable pending sale. Kenneth then asked the Court of Appeals for a writ of mandamus — a court order directing a lower court to perform an act the law requires — to force the district court to remove the notice. The Court of Appeals first decided it was appropriate to hear the petition. It explained that an order refusing to expunge a lis pendens cannot ordinarily be appealed directly, and that waiting to appeal at the end of the case would not be an adequate remedy because a lis pendens hurts the property's marketability and can cause substantial hardship to the owner. The court also noted that the district court's willingness to reconsider if Kenneth found a buyer did not fix the immediate harm the notice was causing to the property's title. Turning to the merits, the court held that a lis pendens is only proper when a lawsuit affects the title to or possession of real property. It is not a tool to help collect a money judgment. Here, Kimberly's underlying request was purely about money — reducing unpaid alimony and other financial obligations to a judgment — so it did not justify a lis pendens on Kenneth's separately owned condominium. Kimberly also argued that Kenneth's attempts to sell assets amounted to a fraudulent transfer designed to dodge his obligations. The court acknowledged that a fraudulent-transfer claim can be the kind of action that affects title or possession of real property. But Kimberly had not brought such a claim in her original motion, and her later fraud allegations were too vague — she did not state the circumstances of fraud with the particularity the rules require, and did not identify a specific type of fraud. Because her claims were limited to monetary obligations and she had not adequately alleged fraud, the court concluded the district court had committed a manifest abuse of discretion in refusing to expunge the notice.