HARRIS-BEY VS. HARRIS-BEY

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's division of property and alimony award for abuse of discretion, declining to disturb decisions supported by substantial evidence - "evidence that 'a sensible person may accept as adequate to sustain a judgment.'" *Schwartz v. Schwartz*, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010); *Williams v. Williams*, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). On the pleadings-conformance challenge, the court applied *Edmonds v. Perry*, 62 Nev. 41, 67, 140 P.2d 566, 578 (1943), and *Buaas v. Buaas*, 62 Nev. 232, 147 P.2d 495 (1944), examining "the issues joined by the pleadings, and not to the allegations of the complaint alone." Because Cherelyn denied paragraphs 4 and 5 of Timothy's counterclaim in her reply, and Timothy abandoned the proposed distribution at a hearing about a year before trial, the property distribution proceeded on Cherelyn's complaint and Timothy's answer, both resting on general prayers for relief. The court held those general prayers were sufficient to empower the district court to distribute the parties' separate and community property in accordance with their respective interests. *Buaas*, 62 Nev. at 234-35, 147 P.2d at 496. On the marital residence, the court applied the characterization framework of NRS 123.130 (property acquired before marriage is separate property) and NRS 123.220 (property acquired during marriage is presumptively community property), with the community-property presumption rebuttable only by clear and convincing evidence, *Pryor v. Pryor*, 103 Nev. 148, 150, 734 P.2d 718, 719 (1987). Substantial evidence supported the finding that Timothy acquired the residence as separate property in June 2019 between the marriages. The court declined to apply the community-property-by-analogy doctrine of *Hay v. Hay*, 100 Nev. 196, 199, 678 P.2d 672, 674 (1984), given the district court's adverse credibility finding against Cherelyn, which the appellate court would not reweigh. *Ellis v. Carucci*, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007); *Quintero v. McDonald*, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). However, because Timothy paid the mortgage during the second marriage with community earnings, the community acquired a pro rata ownership interest under *Malmquist v. Malmquist*, 106 Nev. 231, 238-44, 792 P.2d 372, 376-81 (1990). The district court failed to apply the *Malmquist* formula and failed to make adequate findings supporting an unequal disposition under NRS 125.150(1)(b) (pre-amendment version applied, per 2023 Nev. Stat., ch. 413, § 2.5, at 2460-2463). Citing *Davis v. Ewalefo*, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015), the court reversed and remanded for proper determination of the community's interest. On the undisclosed accounts (cryptocurrency, TSP, and Mastercard), the court affirmed. The district court credited Timothy's testimony, and testimony is evidence. *In re Dish Network Derivative Litig.*, 133 Nev. 438, 445 n.3, 401 P.3d 1081, 1089 n.3 (2017). The court would not reweigh credibility. *Ellis*, 123 Nev. at 152, 161 P.3d at 244; *In re Parental Rights as to C.J.M.*, 118 Nev. 724, 732, 58 P.3d 188, 194 (2002). Any argument that Timothy should have been sanctioned under NRCP 16.2 was waived for failure to raise it meaningfully below. *Old Aztec Mine, Inc. v. Brown*, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). On the NFCU account, the court reversed. Employment earnings and unemployment benefits deposited during the marriage were community property under NRS 123.220 and *Pryor*. Under the commingling rule of *Malmquist*, 106 Nev. at 245, 792 P.2d at 381, once community funds were deposited, a presumption arose that all funds were community property, and Timothy offered no rebuttal evidence. Awarding the entire account to Timothy without a compelling reason for unequal distribution violated NRS 125.150(1)(b) and constituted an abuse of discretion. *Schwartz*, 126 Nev. at 90, 225 P.3d at 1275. The court further noted Timothy's failure to address the argument in his answering brief. *Bates v. Chronister*, 100 Nev. 675, 682, 691 P.2d 865, 870 (1984); cf. NRAP 31(d)(2). The court directed the district court on remand to address the 2020 joint tax refund and a potential community debt for overpayment of unemployment benefits, declining to resolve those factual issues in the first instance. *Round Hill Gen. Imp. Dist. v. Newman*, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981). On alimony, the court applied NRS 125.150(1)(a) (alimony as appears just and equitable) and the 11-factor analysis of NRS 125.150(9), per *DeVries v. Gallio*, 128 Nev. 706, 711-13, 290 P.3d 260, 264-65 (2012), reviewing for abuse of discretion, *Wolff v. Wolff*, 112 Nev. 1355, 1359, 929 P.2d 916, 918-19 (1996), and for substantial evidence, *Davitian-Kostanian v. Kostanian*, 139 Nev., Adv. Op. 27, 534 P.3d 700, 705 (2023). The district court's extensive findings supported the $350-per-month, six-month award. Cherelyn's arguments failed as unpreserved, *Old Aztec Mine*, 97 Nev. at 52, 623 P.2d at 983, or as failing to show a lack of substantial evidence, improper considerations, or prejudicial error, *Wyeth v. Rowatt*, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); cf. NRCP 61. The alimony award was affirmed. On judicial bias, the court presumed the judge unbiased, *Millen v. Eighth Jud. Dist. Ct.*, 122 Nev. 1245, 1254, 148 P.3d 694, 701 (2006), and found no showing of an extrajudicial source or "deep-seated favoritism or antagonism that would make fair judgment impossible," *Canarelli v. Eighth Jud. Dist. Ct.*, 138 Nev. 104, 107, 506 P.3d 334, 337 (2022); *In re Petition to Recall Dunleavy*, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988); *Rivero v. Rivero*, 125 Nev. 410, 439, 216 P.3d 213, 233 (2009). Reassignment was unwarranted.

In plain language

Cherelyn and Timothy Harris-Bey had been married, divorced, and then remarried in December 2019. In June 2021, Cherelyn filed for divorce. The main disputes were how to divide the couple's property and whether Cherelyn should receive alimony (financial support paid by one former spouse to the other). After a trial, the district court entered a divorce decree in May 2023 that gave Timothy the couple's home, let each person keep the bank accounts in his or her own name, and ordered Timothy to pay Cherelyn $350 per month in alimony for six months. Cherelyn appealed. Cherelyn's first argument was that the court should not have given Timothy the marital home because his written response in the case (his counterclaim) had actually proposed giving the home to her. The appeals court explained that this proposed division no longer controlled the case, both because Cherelyn had denied that part of Timothy's counterclaim in her reply and because Timothy later said, about a year before trial, that he was no longer willing to give up the home. As a result, the case moved forward on general requests for relief from both sides, which the court said were enough to let the district court divide the property according to each person's interests. On the home itself, the appeals court agreed that Timothy had bought the house as his separate property in June 2019, between the couple's two marriages, and that the district court was entitled to believe his testimony over Cherelyn's (the district court found Cherelyn was not a credible witness, and appeals courts do not re-weigh credibility). But there was a problem: Timothy used money he earned during the second marriage (which counts as community property, meaning property owned jointly by the couple) to pay the mortgage. Under Nevada law, when community money is used to pay for separate property, the community earns a proportional ownership share. The district court never applied the required legal formula (from a case called *Malmquist*) to figure out that share, and it did not make adequate findings to justify giving the whole house to Timothy. So the appeals court reversed that part of the decree and sent it back for the district court to determine each party's interest in the home. Cherelyn also argued that the court wrongly failed to divide certain accounts Timothy had not disclosed: a cryptocurrency account, a thrift savings plan (TSP) account, and an account tied to a Mastercard. The appeals court upheld the district court here, because the district court found Timothy's explanations credible - that he never funded the cryptocurrency account, that he had emptied the TSP account (which had a zero balance) before the remarriage, and that he did not open or know about the Mastercard account. Because testimony counts as evidence and the appeals court does not reassess credibility, this part of the decree was affirmed. The appeals court reached a different result on a Navy Federal Credit Union (NFCU) bank account in Timothy's name. Both Timothy's employment earnings and Cherelyn's unemployment benefits were deposited into that account during the second marriage, making those funds community property. Once community funds were mixed into the account, the law presumes the entire account is community property, and Timothy offered nothing to rebut that. The district court gave the whole account to Timothy without stating any compelling reason for an unequal split, so the appeals court reversed that part and sent it back for a proper division. The court noted this conclusion was further supported by Timothy's failure to respond to Cherelyn's argument on this point in his brief. The court also directed the district court on remand to address a related question about a 2020 federal tax refund allegedly deposited into that account and a possible community debt from an overpayment of unemployment benefits. On alimony, the appeals court affirmed. The district court had made extensive findings under the statutory factors and concluded that $350 per month for six months was appropriate given the financial disparity between the parties, the short-term nature of the second marriage, and Cherelyn's failure to maintain viable employment even though she was able to work. Cherelyn's arguments failed either because she had not raised them in the trial court or because she had not shown the findings lacked support. Finally, the appeals court rejected Cherelyn's claim of judicial bias. Judges are presumed unbiased, and Cherelyn did not show the judge relied on outside knowledge or displayed the kind of deep-seated antagonism that would make a fair judgment impossible. The court therefore declined to order reassignment.