FISHER VS. WING (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed an amended decree of divorce following its own prior remand in Fisher v. Wing, No. 87698-COA, 2025 WL 1770808 (Nev. Ct. App. Jun. 25, 2025). On the change-of-venue issue, the court noted that under NRS 13.040 the action is properly tried in the county where a defendant resides at commencement; here both parties resided in Lander County, where the events arose and the real property is located. While NRS 13.050(2)(b), (c) permits transfer when an impartial proceeding cannot be had or when the convenience of witnesses and the ends of justice would be promoted, the court applied Mountain View Rec. v. Imperial Com., 129 Nev. 413, 419, 305 P.3d 881, 885 (2013), requiring affidavits with specific facts rather than general allegations of inconvenience. Fisher did not submit such affidavits and did not show "exceptional circumstances," so no abuse of the district court's "wide discretion" was demonstrated. On property characterization, the court reviewed for abuse of discretion under Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010), affirming characterizations supported by substantial evidence under Lopez v. Lopez, 139 Nev. 533, 541, 541 P.3d 117, 125 (Ct. App. 2023), while requiring application of the correct legal standard per Kerley v. Kerley, 111 Nev. 462, 465, 893 P.2d 358, 360 (1995). Property acquired during marriage is presumptively community property under NRS 123.220 and Moberg v. First Nat'l Bank of Nev., 96 Nev. 235, 237, 607 P.2d 112, 114 (1980). A spouse claiming separate property must prove it by clear and convincing evidence under Pryor v. Pryor, 103 Nev. 148, 150, 734 P.2d 718, 719 (1987). Because the NYL IRA was opened during the marriage, the presumption applied and the burden shifted to Fisher. He failed to introduce records tracing funds in the originating account after marriage or in the NYL IRA before separation; under Malmquist v. Malmquist, 106 Nev. 231, 245, 792 P.2d 372, 381 (1990), he did not rebut the community-property presumption where commingling occurred. Fisher's additional property contentions (lien on the marital residence, valuation of life insurance policies, division of Wing's Disney retirement, restitution for stolen assets and forged checks) were deemed outside the scope of remand. The prior order vacated only the NYL IRA characterization, the marital waste finding, and the attorney fee amount, affirming the decree in all other respects. Under Palmieri v. Clark Cnty., 131 Nev. 1028, 1033 n.2, 367 P.3d 442, 446 n.2 (Ct. App. 2015), unraised issues are forfeited, and under Recontrust Co. v. Zhang, 130 Nev. 1, 9, 317 P.3d 814, 819 (2014), an issue generally cannot be raised in a second appeal if it could have been raised in the first. The court also noted, citing 11JDCR 3.15(a), that the district court could issue its decision without oral argument. On alimony, the court applied the law of the case doctrine under Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007), because the prior appeal affirmed the $1,200-per-month, five-year award, and Fisher asserted no circumstances to avoid the doctrine. Fisher's argument referencing NRS 123.100 (abandonment) did not overcome the doctrine. On attorney fees, reviewed for abuse of discretion under O'Connell v. Wynn Las Vegas, LLC, 134 Nev. 550, 554, 429 P.3d 664, 668 (Ct. App. 2018), the district court cited NRS 125.150(4) as the statutory basis, considered the Brunzell factors (Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)), and addressed the parties' income disparity under Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998). Under Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015), the court need only demonstrate it considered the required factors with substantial evidence support. The court found Fisher's monthly income was $7,922.82 and Wing's was $2,967.72, and found Fisher's attempts to hide and obfuscate assets created litigation difficulty. Because Fisher did not challenge the Brunzell or Wright findings or their evidentiary support, and because he paid the filing fee (causing the supreme court to take no action on his in forma pauperis motion), no abuse of discretion was shown. On bias, the court applied Canarelli v. Eighth Jud. Dist. Ct., 138 Nev. 104, 107, 506 P.3d 334, 337 (2022), requiring an extrajudicial source or a showing of deep-seated favoritism or antagonism rendering fair judgment impossible; In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988), holding that rulings during proceedings generally do not establish disqualification grounds; and Rivero v. Rivero, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009) (overruled on other grounds by Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022)), placing the burden on the party asserting bias. Fisher did not satisfy that burden.

In plain language

Steven Fisher and Beatriz Wing married in 2011 and divorced in October 2023. After the divorce decree was entered, Wing asked the court to reconsider, and the district court issued an amended decree that divided their shared (community) property unequally, awarded Wing monthly alimony (financial support paid after divorce), and awarded Wing attorney fees. Both sides appealed the first time. In that earlier appeal, the Court of Appeals upheld some of the district court's decisions and reversed others. Specifically, it agreed that a motorcycle and a life insurance policy were community property, and it upheld alimony of $1,200 per month for five years. But it reversed the court's classification of a retirement account (the NYL IRA) as community property because the findings were insufficient, reversed the court's finding that Fisher had "wasted" marital money, and vacated the attorney fee award because the court's explanation for reducing it did not hold together. The case went back to the district court to fix these issues. On remand, the district court again concluded that the NYL IRA was community property, found that the alimony was $1,200 per month for five years, and recalculated the attorney fees, awarding Wing $37,419.25 (paid partly in cash and partly by reducing Fisher's claim against the marital home). In this second appeal, Fisher raised several arguments. He said the court should have moved the case to a different county (a "change of venue"). The Court of Appeals explained that Lander County was the proper place because both people lived there when the case began and the property was there, and Fisher did not provide sworn statements showing that he or witnesses would be genuinely inconvenienced. Fisher also argued the NYL IRA should be his separate property because the money came from an account he opened in 2007, before the marriage. The court explained that property obtained during a marriage is presumed to be shared, and the spouse who claims it is separate must prove that with strong ("clear and convincing") evidence. Because Fisher did not provide records tracing the money in those accounts during the marriage, he did not meet that burden. Several other property arguments Fisher raised - about a lien on the home, the value of life insurance policies, Wing's Disney retirement account, and alleged stolen assets and forged checks - were rejected because he had not raised them in his first appeal, so they were outside the scope of the remand and could not be raised now. On alimony, the court said its earlier decision upholding the $1,200-per-month, five-year award had become the "law of the case" - a rule that, once decided on appeal, must be followed afterward - and Fisher gave no reason to depart from it. On attorney fees, Fisher argued the award was unfair because he was indigent. The court noted that although he filed paperwork seeking to proceed as a poor person, he also paid the filing fee, so the Nevada Supreme Court took no action on that request. The court found the district court had properly considered the required factors and the parties' income difference, and Fisher did not challenge those findings. Finally, Fisher argued the judge was biased. The court explained that disagreeing with a judge's rulings is generally not enough to show bias; a party must show the judge relied on outside information or showed deep-seated favoritism or antagonism making fair judgment impossible. Fisher did not make that showing. The Court of Appeals affirmed the district court's judgment.