ELWARDT VS. ELWARDT (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's property determinations for an abuse of discretion, upholding property characterizations supported by substantial evidence. Eivazi v. Eivazi, 139 Nev. 408, 411, 537 P.3d 476, 482 (Ct. App. 2023); Lopez v. Lopez, 139 Nev. 533, 541, 541 P.3d 117, 125 (Ct. App. 2023); Waldman v. Maini, 124 Nev. 1121, 1128, 195 P.3d 850, 855 (2008). Substantial evidence "is evidence that a reasonable person may accept as adequate to sustain a judgment." 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 they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). On the dogs, property acquired during marriage is presumed community property, rebuttable only by clear and convincing evidence. Lopez, 139 Nev. at 542, 541 P.3d at 125; NRS 123.220. The presumption may be overcome by showing a gift, which yields separate property under NRS 123.130. Testimony established Fiona and Enzo were acquired during the marriage. The decree recognized Fiona "was intended as a gift to Todd" but made no finding of acceptance, and made no express finding as to Enzo. Citing 38 Am. Jur. 2d Gifts § 17 (2026), the court noted a gift requires unconditional delivery and the donee's acceptance. Given evidence that Tracy cared for the dogs and Todd's limited contact, Todd failed to overcome the community presumption, and the court found no abuse of discretion. On valuation, only Fiona's $2,000 acquisition cost was proven, so the decree's valuation was supported by substantial evidence; however, because the matter was vacated for further proceedings, the district court was directed to ensure Todd's award includes compensation for his portion of the community interest in the dogs. On periodic alimony, alimony "is financial support paid from one spouse to the other whenever justice and equity require it." Rodriguez v. Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000); NRS 125.150(1)(a). Courts "shall consider" the eleven factors of NRS 125.150(9). Alimony is "based on the receiving spouse's need and the paying spouse's ability to pay," and may compensate for economic loss resulting from the marriage and divorce. Kogod v. Cioffi-Kogod, 135 Nev. 64, 68, 70, 439 P.3d 397, 401, 403 (2019). District courts have broad discretion. Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974). The court affirmed the characterization of the pre-divorce commissions as community property, reasoning that "[i]f the work is performed during the marriage, compensation for that work belongs to the community." Kilgore v. Kilgore, 135 Nev. 357, 365, 449 P.3d 843, 850 (2019); see McNabney v. McNabney, 105 Nev. 652, 654, 782 P.2d 1291, 1292 (1989). Todd did not attempt to trace the commissions as separate property, and the district court's credibility determination regarding traceability would not be reweighed. Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009). The court found the district court considered most NRS 125.150(9) factors - duration of the marriage, standard of living, and Tracy's career before marriage - and imputed monthly income of $20,069 to Todd and $1,800 to Tracy (approximately full-time minimum wage), an imputation supported by substantial evidence. Barry v. Lindner, 119 Nev. 661, 670, 81 P.3d 537, 543 (2003). However, the decree did not demonstrate consideration of NRS 125.150(9)(j) (the community share of Todd's commissions awarded to Tracy) or NRS 125.150(9)(a) (the effect of the property distribution on Tracy's need and Todd's ability to pay). Because Todd's commissions were not paid until clients paid the underlying contracts (up to three years later), his post-divorce income could consist primarily of marital-era compensation already partly awarded to Tracy, potentially halving his disposable income while strengthening Tracy's financial position. Cf. Shydler v. Shydler, 114 Nev. 192, 198, 954 P.2d 37, 40 (1998). Given the district court's failure to make specific findings on these predominantly relevant factors, the court could not say discretion was adequately exercised. Buchanan, 90 Nev. at 215, 523 P.2d at 5; Kogod, 135 Nev. at 66, 439 P.3d at 400; Davis, 131 Nev. at 450, 352 P.3d at 1142; Devries v. Gallio, 128 Nev. 706, 712, 290 P.3d 260, 264 (2012). The court vacated the $4,000-per-month award and directed the district court to reevaluate Todd's income in light of the commission distribution and make adequate NRS 125.150(9) findings. On the marital residence, NRS 123.130 creates a rebuttable presumption that property purchased before marriage is separate property, while property acquired after marriage is generally community property under NRS 123.220. Because the Sixth Street home was purchased during the marriage, it was presumed community property, and any separate property used for the purchase constituted a gift to the community. Todkill v. Todkill, 88 Nev. 231, 235-38, 495 P.2d 629, 631-32 (1972). The burden shifted to Todd to prove by clear and convincing evidence the property remained separate, and the common-law gift presumption remained where evidence conflicted. Kerley (cited at 112 Nev. at 37, 910 P.2d at 280); Graham v. Graham, 104 Nev. 472, 474, 760 P.2d 772, 773 (1988). The Sixth Street home was held in joint tenancy, mortgage payments were made with community funds, and Todd acknowledged Tracy had "earned" the right to be on title. Schmanski v. Schmanski, 115 Nev. 247, 249, 984 P.2d 752, 754 (1999). Regarding tracing proceeds from prior homes, Todd introduced no evidence of the source or amount of the Ebony Rock down payment, and because mortgage payments were made with community funds, the court could not account for his separate property. Lopez, 139 Nev. at 542, 541 P.3d at 125; Malmquist v. Malmquist, 106 Nev. 231, 245, 792 P.2d 372, 381 (1990). No abuse of discretion was found. On rehabilitative alimony, the $24,000-over-two-years award was supported by substantial evidence, namely Tracy's testimony about the cost and time to complete her master's degree in psychology. NRS 125.150(10), (11). Although Tracy attained more education during the marriage than Todd, the court recognized Todd gained greater professional skills and attributed the parties' choices - Tracy foregoing employment - to that outcome. No abuse of discretion. Buchanan, 90 Nev. at 215, 523 P.2d at 5. On reassignment, judges are presumed unbiased, and Todd did not show sufficient bias. Millen v. Eighth Jud. Dist. Ct., 122 Nev. 1245, 1254-55, 148 P.3d 694, 701 (2006). Bias must "stem from an extrajudicial source," and here the judge's comments reflected opinions formed during litigation. In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275 (1988). Todd established no "deep-seated favoritism or antagonism." Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022); Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998). Although a court may not consider a party's misconduct in awarding alimony, Rodriguez, 116 Nev. at 998, 13 P.3d at 418, the district court did not rely on the misconduct evidence in its alimony or property determinations. Todd did not demonstrate one of the exceedingly rare cases warranting reassignment. Williams v. Second Jud. Dist. Ct., 142 Nev., Adv. Op. 5, 583 P.3d 223, 226 (2026).

In plain language

Todd and Tracy Elwardt married in 2013. In October 2023, Tracy filed for divorce, asking the court to divide their property and to award her alimony (financial support paid by one spouse to the other). After a trial, the district court divided the couple's property and gave Tracy support. Among other things, the court awarded Tracy four dogs valued at $2,000, half the equity in the marital home, and half of roughly $400,000 in sales commissions Todd earned during the marriage but had not yet been paid. The court also ordered Todd to pay Tracy $4,000 per month for four years (periodic alimony) and $24,000 over two years (rehabilitative alimony, meant to help her get training or education). Todd appealed and raised several arguments. First, he said two of the dogs, Fiona and Enzo, were gifts to him and therefore his own separate property, or that the court valued the dogs incorrectly. The appeals court explained that property acquired during a marriage is presumed to belong to both spouses (community property) unless someone proves otherwise with strong evidence. Because the dogs were acquired during the marriage, and because Tracy had been caring for them while Todd had limited contact, the court concluded Todd had not proven they were his separate property. On the value, only one dog's cost ($2,000) was proven at trial, so the court accepted that figure. But the appeals court noted the decree did not make clear whether Todd received other property to make up for his share of the dogs' value, and directed the lower court to fix that on remand. Todd's main challenge concerned the connection between the commissions and the alimony. Todd is paid entirely on commission, and those commissions are not paid to him until a client pays the underlying sales contract - which can take up to three years. That means in the years right after the divorce, much of Todd's monthly income could come from commissions he earned during the marriage, half of which the court had already awarded to Tracy. The appeals court agreed the commissions counted as community property, but found the district court did not adequately account for the fact that handing Tracy her share of those commissions would reduce Todd's income while boosting Tracy's finances. Because the court did not make specific findings on how this affected Todd's ability to pay and Tracy's need, the appeals court vacated (canceled) the $4,000-per-month periodic alimony award and sent it back for the district court to reconsider with proper findings. The appeals court rejected Todd's other arguments. On the marital home, Todd argued the money should be traced back to homes he owned before or during the marriage as his separate property. The court explained that when separate property is put into a jointly owned home during marriage, it is presumed to be a gift to the community unless proven otherwise, and Todd had not overcome that presumption - the home was in joint tenancy, mortgage payments came from shared funds, and Todd himself acknowledged Tracy had "earned" being on the title. On rehabilitative alimony, the court found Tracy's testimony about the cost and time to finish her master's degree supported the $24,000 award. Finally, Todd asked that a different judge handle the case on remand, arguing the judge formed negative opinions of him (the decree mentioned Todd spoiling Tracy's medication, writing derogatory notes on support checks, and reducing the functionality of Tracy's Tesla). The court presumed judges are unbiased and found the judge's comments came from what the judge learned during the case, not from an outside source, and did not show deep-seated antagonism. Importantly, the court said the district court did not actually rely on that conduct in deciding alimony or property. So the case did not need to be reassigned.