FASSARI VS. FASSARI (FAMILY)

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviewed the district court's determination of personal jurisdiction de novo, citing Fulbright & Jaworski LLP v. Eighth Jud. Dist. Ct., 131 Nev. 30, 35, 342 P.3d 997, 1001 (2015). It generally reviews a decision whether to grant or deny a divorce for abuse of discretion under Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004), but reviews questions of statutory interpretation de novo under Kay v. Nunez, 122 Nev. 1100, 1104, 146 P.3d 801, 804 (2006). **In rem framework.** The court reaffirmed that a divorce proceeding is in rem, in which a court may change marital status when only one party is a bona fide resident, citing Simpson v. O'Donnell, 98 Nev. 516, 517, 654 P.2d 1020, 1021 (1982), and Senjab v. Alhulaibi, 137 Nev. 632, 634, 497 P.3d 618, 619-20 (2021) (recognizing NRS 125.020 as Nevada's divorce-jurisdiction statute conferring subject-matter jurisdiction). It is equally settled that the district court must obtain in personam jurisdiction over both parties before adjudicating the incidences of the marriage. Simpson, 98 Nev. at 518, 654 P.2d at 1021. The court noted that the district court and parties below relied on Davies v. Eighth Judicial District Court, No. 58784, 2012 WL 763200 (Nev. Mar. 8, 2012), an unpublished pre-2016 order that is uncitable under NRAP 36(c)(3), and therefore relied only on Simpson. **Personal jurisdiction and affirmative relief.** Under NRS 14.065(1), a Nevada court may exercise jurisdiction on any basis not inconsistent with the state and federal constitutions; due process requires "minimum contacts" such that suit "does not offend traditional notions of fair play and substantial justice," citing Dogra v. Liles, 129 Nev. 932, 937, 314 P.3d 952, 955 (2013) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). A nonresident lacking minimum contacts may nonetheless waive or consent to jurisdiction. Nevada has abrogated the special/general appearance doctrine, so a personal-jurisdiction defense "is not waived by being joined with one or more other defenses." Hansen v. Eighth Judicial District Court, 116 Nev. 650, 656, 6 P.3d 982, 985-86 (2000); see NRCP 12. The court assumed without deciding, following Dogra, 129 Nev. at 939, 314 P.3d at 957, that "seeking affirmative relief from a court subjects a litigant to that court's jurisdiction and cannot simultaneously be done while the litigant objects to the court's exercise of jurisdiction." It defined affirmative relief as that which "could have been maintained independently of the plaintiff's action," citing the Black's Law Dictionary definition favorably cited in Dogra, and noted the Ninth Circuit's holding in SEC v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007), that a party filing a timely, unambiguous jurisdictional objection does not consent even while simultaneously asserting claims or defenses. Observing that Nevada appellate courts have not specifically decided whether a request for attorney fees and costs is affirmative relief, the court surveyed other jurisdictions - Meyer v. Hatto, 198 P.3d 552, 557 (Wyo. 2008), and Grange Ins. Ass'n v. State, 757 P.2d 933, 940 (Wash. 1988) (fees not affirmative relief), contrasted with Johnson v. Johnson, 662 P.2d 1178, 1182 (Kan. 1983). Applying these principles, the court held that Paul continuously objected to jurisdiction, sought no relief beyond what a defendant might be entitled to, raised no additional claims, and sought no redress for a harm; thus his request for attorney fees and costs was not affirmative relief and did not waive or consent to jurisdiction. The court also noted the parties appeared to agree Paul lacked minimum contacts. It therefore affirmed the determination that the court lacked personal jurisdiction over Paul and could not adjudicate the incidences of the marriage. The court further treated the district court's silence on Leslie's assertion that Paul's fee request was affirmative relief outside the scope of a motion to dismiss as a denial, citing Bd. of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 289, 994 P.2d 1149, 1150 (2000). **Statutory analysis of NRS 125.120 and the discretion to deny divorce.** Turning to whether the court should have dissolved the marriage under its in rem jurisdiction, the court applied the plain-meaning and whole-text canons, citing Knickmeyer v. State ex rel. Eighth Jud. Dist. Ct., 133 Nev. 675, 679, 408 P.3d 161, 166 (Ct. App. 2017), and Urias v. First Jud. Dist. Ct., 141 Nev., Adv. Op. 24, 568 P.3d 576, 581 (2025). While "may" is generally permissive and "shall"/"must" mandatory, see Sullivan v. Baker Ranches, Inc., 141 Nev., Adv. Op. 36, 573 P.3d 1240, 1244 (2025) (quoting Nev. Comm'n on Ethics v. JMA/Lucchesi, 110 Nev. 1, 9-10, 866 P.2d 297, 302 (1994)), the court noted the Legislature defines "may" in the NRS as a "right, privilege, or power" under NRS 0.025. A district court's discretion must conform to correct legal standards, and NRS 125.120 limits that discretion to circumstances where "it appears to the court that the grounds for divorce exist." The court construed NRS 125.010 (causes for divorce, including incompatibility) and NRS 125.020 (jurisdictional requirements, including the six-week residency requirement of NRS 125.020(2)) as together constituting the "grounds for divorce" under NRS 125.120. It held that a district court abuses its discretion when it denies a divorce under NRS 125.120 without considering whether the moving party presented adequate statutory grounds under NRS 125.010 and NRS 125.020, and that the "right, privilege, or power" conferred does not include discretion to deny a divorce when those requirements are met. The court found this consistent with George v. George, 56 Nev. 12, 18, 41 P.2d 1059, 1059 (1935), Fausone v. Fausone, 75 Nev. 222, 226-27, 338 P.2d 68, 69-70 (1959), and Kohlsaat v. Kohlsaat, 62 Nev. 485, 489-90, 155 P.2d 474, 476 (1945). **Gojack and the divisible/bifurcated distinction.** The court rejected reliance on Gojack v. Second Judicial District Court, 95 Nev. 443, 596 P.2d 237 (1979), to dismiss the complaint. It read Gojack's holding as limited: under NRS 125.150(1)(b), the court "[s]hall, to the extent practicable, make an equal disposition of the community property" - that is, must distribute property only if capable of doing so. Distinguishing the disfavored "bifurcated divorce" (see Smith v. Smith, 100 Nev. 610, 613 n.1, 691 P.2d 428, 431 n.1 (1984)) from a "divisible divorce," the court held that under Simpson (decided three years after Gojack) and due process principles, the district court lacked jurisdiction over the incidences of the marriage, making it impracticable to enter anything other than a decree dissolving the marriage. Gojack therefore did not supply a legal standard for denying Leslie a divorce. **Disposition.** The court affirmed the portion of the order finding no personal jurisdiction over Paul and the dismissal of claims concerning the incidences of the marriage, but reversed and remanded the dismissal of the divorce request for the district court to determine whether Leslie satisfied NRS 125.120, which would then require granting an in rem divorce even if the incidences of the marriage may ultimately be decided in another forum.

In plain language

Leslie and Paul Fassari married in California in 2012 and have no children together. They later moved to South Carolina, separated around June 2, 2024, and Leslie moved to Las Vegas. On November 5, 2024, she filed for divorce in Nevada's family court. In her complaint she asked the court not only to end the marriage but also to divide the couple's property, identify which property each owned before marriage as separate property, decide a claim of "marital waste," award her spousal support (alimony), and award her attorney fees and costs. She served Paul outside Nevada under a court rule allowing service elsewhere in the United States (NRCP 4.3(a)). Paul did not answer the complaint. Instead, he asked the court to dismiss the case, arguing the Nevada court did not have "personal jurisdiction" over him - that is, legal authority over him as an individual. Without that authority, he argued, the court could not decide property division, marital waste, or alimony. He also asked the court for his own attorney fees and costs for having to bring the motion. Leslie responded that Paul had actually submitted himself to Nevada's authority by asking for attorney fees and costs - in legal terms, by seeking "affirmative relief." She also argued that even if the court lacked authority over Paul personally, it could still simply dissolve the marriage based on its "in rem" jurisdiction (authority over the status of the marriage itself, which exists when one spouse genuinely lives in Nevada). She noted that South Carolina law would not let her file for divorce there until one year after separation. The district court dismissed the entire complaint. It found Paul had no ties to Nevada, that requesting attorney fees did not waive his jurisdiction objection, and that it could not exercise personal jurisdiction over him. It then declined to dissolve the marriage by itself, reasoning that splitting the divorce from the property issues is disfavored in Nevada and would create "numerous problems." The Court of Appeals reached a split result. On the personal-jurisdiction question, it agreed with the district court: Paul's request for attorney fees and costs was not "affirmative relief" and did not submit him to Nevada's authority, so the court correctly found it could not decide the property, waste, and alimony issues. But on the divorce itself, the appellate court disagreed with the dismissal. It explained that a "divisible divorce" - dissolving the marriage now while leaving the money-and-property issues for another court that has authority over both spouses - is different from the "bifurcated divorce" disfavored in older Nevada cases. The court held that if a person meets the statutory requirements for divorce (including living in Nevada at least six weeks), the district court does not have discretion to refuse the divorce. Because the district court never analyzed whether Leslie met those requirements, the appellate court sent that part of the case back for the district court to decide.