FAUGHNAN VS. FAUGHNAN

Statutes cited

Key holdings

Practitioner summary

The court reviewed the denial of NRCP 60(b)(1) relief for abuse of discretion, citing *Willard v. Berry-Hinckley Indus.*, 136 Nev. 467, 469, 469 P.3d 176, 179 (2020). Under NRCP 60(b)(1), a district court may relieve a party from a final judgment based on "mistake, inadvertence, surprise, or excusable neglect," with the movant bearing the burden of establishing sufficient grounds by a preponderance of the evidence (*Willard*, 136 Nev. at 470, 469 P.3d at 179-80). On the discovery-and-continuance issue, the court applied the abuse-of-discretion standard governing discovery rulings under *Club Vista Fin. Servs. v. Eighth Jud. Dist. Ct.*, 128 Nev. 224, 228, 276 P.3d 246, 249 (2012), and continuance rulings under *Bongiovi v. Sullivan*, 122 Nev. 556, 570, 138 P.3d 433, 444 (2006). For the due process dimension, the court invoked *Ungar v. Sarafite*, 376 U.S. 575, 589 (1964) ("There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case."), and *Mesi v. Mesi*, 136 Nev. 748, 750, 478 P.3d 366, 369 (2020), for the principle that due process requires an opportunity to be heard at a meaningful time and manner. Applying the good-cause and diligence framework of *Torremoro v. Eighth Jud. Dist. Ct.*, 138 Nev., Adv. Op. 54, 512 P.3d 765, 769 (2022), and NRS 16.010, the court noted that a party's failure to diligently procure discovery weighs against a continuance, and that excusable neglect cannot rest on "the party's own carelessness, inattention, or willful disregard of the court's process." The district court had denied the motion as untimely under EDCR 2.35(a) (motion to extend discovery must be filed no later than 21 days before close of discovery), found no excusable neglect, noted the absence of the discovery statement required by EDCR 2.35(b), and found no good cause to continue under EDCR 7.30(a). Because Michelle failed to explain her post-deadline delay and her counsel admitted he had not timely reviewed discovery materials, substantial evidence supported the findings. The court concluded the underlying denial was neither erroneous nor a due process violation, and therefore did not constitute a "mistake" warranting NRCP 60(b)(1) relief. The court declined to address Michelle's argument regarding the preclusion of undisclosed trial exhibits, finding it unsupported by cogent argument or relevant authority under *Edwards v. Emperor's Garden Rest.*, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). On alimony, the court applied the abuse-of-discretion standard from *Davitian-Kostanian v. Kostanian*, 139 Nev., Adv. Op. 27, 534 P.3d 700, 705 (2023), and noted that NRS 125.150(8) permits modification of unaccrued alimony upon a showing of changed circumstances. The district court found the parties had agreed to a non-modifiable alimony award, and that even if modifiable, Michelle had not demonstrated changed circumstances. Substantial evidence supported those findings, so the denial was not an abuse of discretion. In a footnote, the court acknowledged that under *Willard*, 136 Nev. at 471, 469 P.3d at 180, a district court's failure to address and make express findings on the factors from *Yochum v. Davis*, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982), overruled in part by *Epstein v. Epstein*, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997), in denying NRCP 60(b) relief can warrant reversal - but held Michelle waived the issue by failing to raise it, citing *Powell v. Liberty Mut. Fire Ins. Co.*, 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). The court likewise held Michelle waived any challenge to the omitted-asset ruling by presenting no argument on it, again citing *Powell*. Finally, the court denied Kerry's request for sanctions under NRAP 38 and his motion to expedite.

In plain language

Michelle and Kerry Faughnan married in 2008. In 2021, Michelle filed for divorce, asking the court to divide the couple's shared property and to award her alimony (ongoing support payments from one spouse to another after divorce). Kerry responded and filed his own claims. The court set deadlines: discovery (the pretrial process of gathering evidence and information from the other side) would close on March 23, 2022, and trial would begin later in April 2022. On March 25, 2022 - after the discovery deadline had passed - Michelle asked the court to extend discovery and push back the trial. She said Kerry hadn't fully disclosed information about assets, his income, and his criminal charges, and that she and her attorney both had health problems that had slowed them down. The court denied her request. It found the request was filed too late under a local court rule, that she hadn't shown "excusable neglect" for the delay, that she hadn't included the required list of completed and remaining discovery, and that she hadn't shown good cause to delay the trial. Before trial, the parties settled their disagreements. The court entered a divorce decree that included their agreements on dividing property and on alimony. Under the agreement, Kerry would make Michelle's $1,319 monthly car payment until the car was paid off and also pay her $1,350 per month during that period; once the car was paid off, he would pay her $2,700 per month until April 2027, when the alimony obligation would end. The alimony would also end if Michelle remarried or if either party died. The parties agreed the alimony was otherwise non-modifiable - meaning it could not be changed later. Michelle then asked the court to set aside the decree under a rule (NRCP 60(b)(1)) that lets courts undo a judgment because of "mistake, inadvertence, surprise, or excusable neglect." She argued the alimony wasn't enough to support her, that the earlier denial of her discovery-extension request was a mistake, and that she had been effectively forced into settling. She also filed a motion claiming an asset had been left out of the decree. The district court denied both motions. On appeal, the Court of Appeals affirmed. It held that the district court had acted within its discretion in denying the discovery extension and continuance, noting that Michelle filed late, did not explain her delay, and that her own attorney admitted he had not reviewed the discovery materials in time - showing a lack of diligence. Because the underlying discovery ruling was not erroneous and did not deny Michelle a fair chance to present her case, it was not a "mistake" that justified undoing the decree. On alimony, the court noted the parties had agreed the award was non-modifiable, and that even if it could be changed, Michelle had not shown the changed circumstances required to modify it. Finally, the court held Michelle waived any challenge to the omitted-asset ruling because she offered no argument about it on appeal. The court also declined Kerry's request to sanction Michelle for filing a supposedly frivolous appeal.