EIVAZI VS. EIVAZI

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviewed alimony determinations, attorney fee awards, and disposition of community property (including underlying marital waste determinations) for abuse of discretion. Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019). Factual findings are reviewed deferentially and will not be set aside unless clearly erroneous or unsupported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009); Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). Deference is not owed to legal error or to findings so conclusory that they mask legal error. Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). Verbatim adoption of a proposed order. The court held that a district court's verbatim adoption of one party's proposed findings, conclusions, and decree is not, standing alone, an abuse of discretion. EDCR 5.515 expressly contemplates the practice, and Byford v. State, 123 Nev. 67, 69, 156 P.3d 691, 692 (2007) recognized that adoption is permissible when the opposing party has notice and an opportunity to respond. NRCP 52(b) provides an additional protective mechanism. The court canvassed authorities critical of the practice - Anderson v. Bessemer City, 470 U.S. 564, 572 (1985); In re Colony Square Co., 819 F.2d 272 (11th Cir. 1987); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1373 n.46 (11th Cir. 1997); Harris v. Davis, 88 N.E.3d 1081, 1086 n.2 (Ind. Ct. App. 2017); Saylor v. State, 765 N.E.2d 535, 565 (Ind. 2002) - but emphasized those decisions do not alter the standard of review or independently invalidate the order. Citing Foley v. Morse & Mowbray, 109 Nev. 116, 123-24, 848 P.2d 519, 524 (1993), and Federal National Mortgage Ass'n v. Westland Liberty Village, LLC, 138 Nev., Adv. Op. 57, 515 P.3d 329, 337 n.6 (2022), the court directed appellate scrutiny to the substance of the adopted order, and warned trial courts that they "assume responsibility for those findings and attendant rulings upon entry of the order." Marital waste. Under NRS 125.150(1)(b), community property must be divided equally absent compelling reasons. Dissipation/waste can supply such a reason. Kogod, 135 Nev. at 75-76, 439 P.3d at 406-07; Lofgren v. Lofgren, 112 Nev. 1282, 1283, 926 P.2d 296, 297 (1996); Putterman v. Putterman, 113 Nev. 606, 609, 939 P.2d 1047, 1048 (1997). Waste "[g]enerally" refers to "one spouse's use of marital property for a selfish purpose unrelated to the marriage in contemplation of divorce or at a time when the marriage is in serious jeopardy or is undergoing an irretrievable breakdown." Kogod, 135 Nev. at 75-76, 439 P.3d at 406-07. The trial court erred in three related ways. First, it adopted an overbroad definition equating all "negligent or willful dissipation" or "surreptitious and personal use of community property or funds without the other [spouse's] knowledge" with waste, contrary to Kogod's narrower formulation and disregarding the distinction between waste and overconsumption recognized in Putterman, 113 Nev. at 609, 939 P.2d at 1048. Second, the court shifted the burden to Parviz to disprove waste by clear and convincing evidence without first requiring Fatemeh to raise a reasonable inference that specific transactions furthered a purpose inimical to the marriage, were made to diminish her share, or were unusually large withdrawals. Kogod, 135 Nev. at 78, 439 P.3d at 408. The court also noted that preponderance is the default standard in family-law matters absent contrary legislative intent, citing Monahan v. Hogan, 138 Nev. 58, 69, 507 P.3d 588, 597 (Ct. App. 2022). Third, the decree failed to identify specific transactions and their purposes, instead aggregating "[u]nknown checks," "[c]ash," a $10,000 transfer to "Yousfi," and "[u]nknown withdrawals" across a seven-year period, much of it predating the divorce filing. The court contrasted this with the particularized findings approved in Lofgren and Putterman. The court also reaffirmed that family-related expenditures may be subject to implied consent under NRS 123.230, and outlined factors relevant to evaluating gifts to family members (size, regularity, timing, purpose, and identity of recipient), drawing from Kogod. The unequal $100,357.50 disposition was reversed. Alimony. NRS 125.150(1)(a) requires that alimony be just and equitable, and NRS 125.150(9) lists 11 factors the district court must consider. Devries v. Gallio, 128 Nev. 706, 712, 290 P.3d 260, 264-65 (2012); Rodriguez v. Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000). Awards may be needs-based (factors (a), (b), (e), (j), (k)) or compensatory for economic loss (factors (d), (e), (f), (g), (h), (i)). Kogod, 135 Nev. at 69-71, 439 P.3d at 402-04. Fault and misconduct are not proper considerations. Id. at 67, 439 P.3d at 401; Rodriguez, 116 Nev. at 998, 13 P.3d at 418. The decree's findings were "incomplete, unsupported by substantial evidence, and internally inconsistent," and improperly referenced Parviz's litigation conduct. Among the specific deficiencies: no findings as to Parviz's financial condition under factor (a); no monetary valuation of property under factors (b) and (j); reliance on a Transparent Nevada printout that was never admitted into evidence to calculate Parviz's $189,331 average annual income, contrary to Burroughs Corp. v. Century Steel, Inc., 99 Nev. 464, 470, 664 P.2d 354, 358 (1983); a contradictory finding that Parviz had "significant resources" while simultaneously concluding the marital home had to be sold to fund the awards; failure to address Parviz's ability to work over the 10-year alimony period given his age and stated health issues, with the court rejecting his testimony on health grounds despite In re DISH Network Derivative Litigation, 133 Nev. 438, 445 n.3, 401 P.3d 1081, 1089 n.3 (2017); and failure to evaluate Fatemeh's earning capacity, as required by NRS 125.150(9)(e), regardless of whether she was willfully unemployed. Plain-error review of the unadmitted-exhibit issue was supported by Crow-Spieker #23 v. Robert L. Helms Construction & Development Co., 103 Nev. 1, 3 n.2, 731 P.2d 348, 350 n.2 (1987). The court reversed and remanded for proper analysis under Devries, 128 Nev. at 711-12, 290 P.3d at 264, and Forrest v. Forrest, 99 Nev. 602, 606, 668 P.2d 275, 278 (1983). Attorney fees and litigation reimbursement. The trial court granted Fatemeh's motion for reconsideration of the December 2019 order (which had directed each party to bear its own fees in connection with Parviz's denied summary judgment motion and the related evidentiary hearing) but then awarded Fatemeh $176,976.99 covering all fees and costs from the inception of the case. That award exceeded the scope of reconsideration, awarded costs not requested in the motion, and risked duplicating fees previously adjudicated. The award was reversed with instructions to limit fees to those tied to the summary judgment motion and evidentiary hearing and to credit any amounts already paid. The separate $59,000 reimbursement for borrowed litigation funds was reversed for lack of findings, citing Roe v. Roe, 139 Nev., Adv. Op. 21 (Ct. App. July 27, 2023). Expert fees. NRS 18.005(5) (pre-amendment version) capped expert witness fees at $1,500 per witness absent a finding of necessity warranting more. Frazier v. Drake, 131 Nev. 632, 644, 650, 357 P.3d 365, 373, 377 (Ct. App. 2015), requires "an express, careful, and preferably written explanation" justifying any larger fee. The decree justified two of three expert fees but not the $7,450 for translation services, which was therefore reversed. The court noted (but did not apply) the 2023 amendment raising the cap to $15,000. 2023 Nev. Stat., ch. 70, § 1. Other awards. The interim spousal support arrears (supported by a filed schedule of arrearages) and the division of insurance proceeds from Fatemeh's car accident (supported by Fatemeh's testimony) were affirmed. Ogawa, 125 Nev. at 668, 221 P.3d at 704. The unequal community debt allocation - splitting Fatemeh's credit card debt while leaving Parviz solely responsible for his Chapter 13 bankruptcy debt - was reversed for absence of written reasons under NRS 125.150(1)(b) and Lofgren, 112 Nev. at 1283, 926 P.2d at 297. The order to sell the marital home was affirmed under the invited error doctrine because Parviz had twice asked the trial court to order the sale. Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345-46 (1994). The court declined to consider arguments not supported by record citations under NRAP 28(e)(1) and Allianz Insurance Co. v. Gagnon, 109 Nev. 990, 997, 860 P.2d 720, 725 (1993). The court also declined to overrule Kogod, citing Hubbard v. United States, 514 U.S. 695, 720 (1995) (Rehnquist, C.J., dissenting), and People v. Solorzano, 63 Cal. Rptr. 3d 659, 664 (2007). Cogency requirement noted under Edwards v. Emperor's Garden Restaurant, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). EDCR 5.703(a) was cited regarding the scope of the joint preliminary injunction.

In plain language

Parviz and Fatemeh Eivazi were married in Las Vegas in 2001 (after an earlier marriage in Iran). Fatemeh filed for divorce in 2016. The case was hard-fought, with many motions and a multi-day trial. After trial, the judge asked both spouses to submit proposed final orders. The judge then signed Fatemeh's 61-page proposed decree word-for-word, without changing anything. That decree required Parviz to pay Fatemeh more than $400,000 - including ten years of alimony at $5,000 a month, attorney fees, expert fees, repayment for "wasted" community money, and the proceeds from selling the marital home. Parviz appealed. The Nevada Court of Appeals used this case to send a strong message about a common practice: judges sometimes ask the winning party's lawyer to write up the order. The court did not ban the practice. It said adopting a party's proposed order word-for-word is not, by itself, an abuse of discretion - but judges who do so take on the risk that any mistakes in the document will be their mistakes. The court urged judges to read proposed orders carefully and lawyers to make sure those drafts are accurate and legally sound. Turning to the decree itself, the court found a number of problems. On "marital waste" (the idea that one spouse improperly spent community money), the trial court had treated any spending Fatemeh did not know about as waste, and required Parviz to disprove waste by clear and convincing evidence. The Court of Appeals said this flipped the burden the wrong way and used too broad a definition of waste. Under Nevada Supreme Court precedent (Kogod), waste generally means using marital money for a selfish purpose unrelated to the marriage, typically when the marriage is already breaking down. The trial court grouped together years of unexplained checks and cash and called it all waste - that was an abuse of discretion. On alimony, the court found the trial judge had gone through the statutory list of factors only superficially. Among other problems, the judge calculated Parviz's income from a website printout that was never actually admitted into evidence; failed to evaluate Fatemeh's earning capacity (not just her current lack of income); inconsistently described Parviz's ability to pay; and improperly leaned on Parviz's alleged misconduct in the divorce when deciding alimony, which Nevada law forbids. On attorney fees, the trial court had reconsidered an earlier order and awarded Fatemeh all her fees from the very beginning of the case - even fees that had already been ruled on in earlier orders, and costs that Fatemeh had not even asked for in her motion. The Court of Appeals reversed and told the trial court to limit any reconsideration to the fees actually at issue. A separate $59,000 award to "reimburse" Fatemeh for money she borrowed to fund the litigation was reversed because the decree contained no findings explaining it and it appeared to overlap with the attorney fee award. A $7,450 award for translation services as an expert fee was reversed because the trial court did not justify exceeding the statutory cap. The court affirmed two parts of the decree: an award for interim spousal support arrears and the division of insurance proceeds from Fatemeh's car accident. It also affirmed the order to sell the marital home, because Parviz himself had asked the trial court to order the sale - he could not complain on appeal about an outcome he invited. The unequal split of community debt, by contrast, was reversed because the decree gave no reason for the inequality. The case goes back to the trial court to redo the parts that were reversed.