HE VS. SU

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed both the grant of NRCP 60(b) relief and the modification of the alimony obligation for abuse of discretion, citing Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018), and Gilman v. Gilman, 114 Nev. 416, 422, 956 P.2d 761, 764 (1998). On the alimony issue, Lingying argued that Zuyu's obligation could not terminate under NRS 125.150(6) because it arose from a valid agreement in the parties' joint petition and provided for a definite term. The court agreed the agreement was valid, citing NRS 123.080(1), but held that validity and a definite term do not preclude termination by operation of NRS 125.150(6), which provides that upon the subsequent remarriage of the spouse to whom specified periodic payments were to be made, "all the payments required by the decree must cease, unless it was otherwise ordered by the court." The court emphasized that nothing in the joint petition indicated the alimony provision was non-modifiable or not subject to termination upon remarriage, and that the decree used words of merger. Applying Day v. Day, 80 Nev. 386, 390, 395 P.2d 321, 323 (1964), the court found the agreement merged into the decree. Under Mizrachi v. Mizrachi, 132 Nev. 666, 675 n.9, 385 P.3d 982, 988 n.9 (Ct. App. 2016), and Gilbert v. Warren, 95 Nev. 296, 300, 594 P.2d 696, 698 (1979) (superseded on other grounds as recognized in NC-DSH, Inc. v. Garner, 125 Nev. 647, 651-52, 218 P.3d 853, 857 (2009)), the parties' rights therefore rested upon the modifiable decree rather than the agreement. The court addressed Lingying's reliance on Barbash v. Barbash, 91 Nev. 320, 321-22, 535 P.2d 781, 781-82 (1975), noting that Barbash applied California law governing integrated property settlement and support agreements, and that subsequent California law changes eliminated the integrated-agreement analysis, citing In re Marriage of Vomacka, 683 P.2d 248, 251 n.2 (Cal. 1984). The court observed that Lingying did not argue below that the joint petition was an integrated agreement or request an evidentiary hearing, so those issues were not preserved, citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). It further noted that while Barbash principles have been applied in Cord v. Neuhoff, 94 Nev. 21, 23-24, 573 P.2d 1170, 1171-72 (1978), and Renshaw v. Renshaw, 96 Nev. 541, 542-43, 611 P.2d 1070, 1071 (1980), Nevada's appellate courts have not addressed whether those principles apply to an agreement that merged with a decree, and that Lingying offered no cogent argument reconciling them with Nevada merger law, citing Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006), and In re Marriage of Smiley, 125 Cal. Rptr. 717, 718-19 (Ct. App. 1975). The court also invoked Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), presuming that materials missing from the appendix supported the district court's decision. The court concluded Lingying failed to show an abuse of discretion. In a footnote, the court rejected Lingying's contention that Zuyu waived the remarriage argument, reasoning that his answering brief at least raised the remarriage and that pro se parties need not cite legal authority in informal briefs, citing NRAP 28(k). The court also declined to strike Zuyu's answering brief under NRAP 28(j), finding nothing sufficiently objectionable, while stating it reviewed his brief with due circumspection. On the marital residence, Lingying argued that the parties became tenants in common upon the decree's award of 50 percent interests to each, so her net equity should be calculated at the property's current fair market value rather than its April 2017 value. Because Zuyu made no attempt to address this contention, the court held he waived any challenge, citing SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 135 Nev. 346, 352 n.4, 449 P.3d 461, 466 n.4 (2019). The court reversed the portion of the order calculating equity based on April 2017 value and remanded for the district court to determine the parties' equal shares based on the property's current fair market value, accounting for the outstanding mortgage and any post-divorce contributions toward the mortgage.

In plain language

This is a family-law appeal arising from a divorce. In April 2017, Lingying He and Zuyu Su divorced under a decree that adopted the terms of their joint divorce petition. The decree gave each of them an equal share in their home (and its associated debt) and required Zuyu to pay Lingying $1,700 per month in alimony (spousal support) from May 2017 through April 2027. Zuyu stopped making alimony payments for several years. Lingying went to court to enforce the decree, and Zuyu asked the court to reduce his alimony. In April 2021, the court found Zuyu owed $98,600 in back alimony and lowered his ongoing payment to $300 per month. Zuyu then asked the court to adjust the amount he owed. During a later hearing, Lingying admitted that she had remarried in July 2017. Because of that, the court set aside its earlier April 2021 order, finding that Lingying had committed "fraud upon the court" in obtaining it. Under a Nevada statute, NRS 125.150(6), when a spouse who receives periodic alimony remarries, the required payments generally stop unless the court ordered otherwise. So the court decided Zuyu's alimony obligation actually ended in July 2017 when Lingying remarried, meaning he only owed $3,400 for payments he missed before she remarried - not $98,600. The court also addressed the house. It said the house should be listed for sale if Zuyu could not buy out Lingying's share within a set time, and it said Lingying's equity should be figured using the home's value back in April 2017, when the divorce decree was entered. On appeal, the Court of Appeals reached two results. First, it upheld the decision to cancel the April 2021 order and to recalculate the arrears. Lingying argued that because the parties had a valid agreement calling for alimony over a fixed term, the payments could not be cut off by the remarriage statute. The court agreed the agreement was valid but said that did not stop the statute from applying, because nothing in the agreement said the alimony was non-modifiable or would survive a remarriage, and because the agreement had "merged" into the divorce decree - meaning the parties' rights rested on the decree, which can be modified. Lingying also relied on an older Nevada case, Barbash, but the court noted that case applied California law and that Lingying had not raised her key arguments (that this was an "integrated agreement" or that an evidentiary hearing was needed) in the lower court, so those points were not preserved for appeal. Second, the court sided with Lingying on the house. She argued her share of equity should be based on the home's current value, not its 2017 value. Because Zuyu did not respond to this argument on appeal at all, the court treated the point as waived by him. The Court of Appeals reversed that part of the order and sent the case back so the district court could calculate each party's equal share based on the home's current fair market value, accounting for the outstanding mortgage and any post-divorce mortgage payments the parties made.