HO VS. HO

Statutes cited

Key holdings

Practitioner summary

**Property distribution - standard and framework.** The court reviewed the distribution of community property for abuse of discretion. Kilgore v. Kilgore, 135 Nev. 357, 359, 449 P.3d 843, 846 (2019). Property acquired after marriage, including retirement benefits, is community property. NRS 123.220; Kilgore, 135 Nev. at 360, 449 P.3d at 846. The district court must make an equal disposition of community property. NRS 125.150(1)(b). An asset is valued as of the time the written decree is entered. Kogod v. Cioffi-Kogod, 135 Nev. 64, 79, 439 P.3d 397, 409 (2019). The court abuses its discretion if it fails to set forth "specific findings of fact sufficient to indicate the basis for its ultimate conclusions." Wilford v. Wilford, 101 Nev. 212, 215, 699 P.2d 105, 107 (1985). **Unequal disposition and waste.** A court may order an unequal disposition only if it finds "compelling reason[s] to do so and sets forth [those reasons] in writing." NRS 125.150(1)(b). "Dissipation, or waste, can provide a compelling reason for the unequal disposition of community property." Kogod, 135 Nev. at 75, 439 P.3d at 406. Expenses typical of the marriage "do not provide a compelling reason for an unequal disposition of community property." Id. at 78, 439 P.3d at 408. **Application.** Neither party disputed the Fidelity account was community property, and Bryanna offered no evidence contradicting that the funds were used to pay community debt. The district court expressly found "no credible evidence of community waste." The court reasoned that, absent dissipation or waste, the withdrawn funds were necessarily spent in furtherance of the community. See NRS 123.230 (either spouse acting alone may manage and control community property with the same power of disposition as over separate property). Because the account was a community asset and no waste was found, it should have been valued at the time of the decree - approximately $2,486.31 - rather than at its pre-withdrawal $30,000 value. Valuing it at $30,000 without a waste finding was an abuse of discretion. The court reversed and remanded for proper valuation and recalculation of the community division. **Alimony - standard and framework.** Alimony awards are reviewed for abuse of discretion. Kogod, 135 Nev. at 75, 439 P.3d at 406. The court may award alimony "as appears just and equitable." NRS 125.150(1)(a). The decision to award alimony is discretionary, but the court "must consider the eleven factors listed in NRS 125.150(9)." Kogod, 135 Nev. at 66-67, 439 P.3d at 400-01. Factual findings on those factors must be "supported by substantial evidence, and the court need[s] to explain why those findings support[] its alimony award in both amount and duration." Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 587 P.3d 476, 492 (2023). The court may consider any relevant factors, "including changes to the income of the spouse who is ordered to pay alimony." Davittian-Kostanian v. Kostanian, 139 Nev., Adv. Op. 27, 534 P.3d 700, 705 (2023). **Imputation of income.** A court may impute income where a spouse "purposefully earns less than his reasonable capabilities permit." Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 257 (1970). But if a spouse "through circumstances beyond his control cannot in good faith . . . earn more money, the [alimony] award should be in keeping with his ability to pay." Id. Such circumstances may include where overtime is not at the employee's discretion. Mason v. Mason, No. A-02-1255, 2004 WL 1440535, at *3 (Neb. Ct. App. June 29, 2004). Overtime may be considered in determining GMI, but "overtime should be included as income, if it is substantial and can be determined accurately." Scott v. Scott, 107 Nev. 837, 841, 822 P.2d 654, 656 (1991), abrogated by Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). Imputation findings must be supported by substantial evidence, Barry v. Lindner, 119 Nev. 661, 670, 81 P.3d 537, 543 (2003), and the decision to impute is reviewed for abuse of discretion, Davittian-Kostanian, 139 Nev., Adv. Op. 27, 534 P.3d at 705. **Application.** The court affirmed the decision to award alimony, finding the district court properly analyzed the NRS 125.150(9) factors (noting the order inadvertently cited NRS 125.150(8)). The problem was the amount. The district court effectively imputed roughly $5,000 per month to Brian's 2023 FDF figure, reaching a GMI of $12,680, but failed to identify how much represented overtime versus regular pay, and the record did not establish that overtime was substantial or accurately determinable. See Scott, 107 Nev. at 841, 822 P.2d at 656. The court declined to defer to findings "so conclusory that they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). The district court also failed to account for Brian's changed circumstances - his new joint physical custody obligations affecting his ability to work the hours he worked in 2022. See Rosenbaum, 86 Nev. at 554, 471 P.2d at 257; Davittian-Kostanian, 139 Nev., Adv. Op. 27, 534 P.3d at 705. It further erroneously characterized Brian's arrangement as a flexible "visitation" schedule when he had joint physical custody, a factual error that "likely constitutes an abuse of discretion." MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016). The record lacked substantial evidence that Brian could work additional Thursday or other shifts, or that such shifts would justify imputing $5,000. The court also found the district court failed to consider Brian's ability to pay, given his expenses and the period during which he would owe both the mortgage and alimony. The alimony amount was reversed and remanded. **Attorney fees.** Because it reversed the underlying rulings, the court necessarily reversed the $4,245 attorney fee award. See Fredric & Barbara Rosenberg Living Tr. v. MacDonald Highlands Realty, LLC, 134 Nev. 570, 579, 427 P.3d 104, 112 (2018). The court also rejected Brian's argument that GMI for child support and alimony must match, noting that imputing income for child support is permissive. See NAC 425.125(1).

In plain language

Brian and Bryanna Ho were married for nearly seven years and had two young children. Both filed for divorce in October 2022, and their cases were combined. During the marriage, Bryanna stayed home to care for the children while Brian, a registered nurse, was the primary earner. The couple agreed on joint legal and physical custody of the children, so custody and child support were not part of this appeal. The appeal focused on two money issues: how the court divided the couple's property and how it calculated alimony (support payments from one former spouse to another). The first issue involved a Fidelity retirement account. During the marriage, Brian took out about $24,000 from that account (in two withdrawals of $12,500 and $17,500) and moved the money into the couple's joint Wells Fargo account. He testified he used the money to pay off shared credit card debt, and Bryanna did not dispute that. After the withdrawals, the account was worth roughly $2,486.31. The trial judge, however, found there was "no proof" of where the money went, called the withdrawals "unilateral and unsupported," and decided to treat the account as though it still held its pre-withdrawal value of $30,000 when dividing the property. To keep the split even, the court then shifted $10,686 of the marital home's equity from Brian to Bryanna. Notably, the same court also expressly found that neither spouse had committed "marital waste." The Court of Appeals held this was contradictory. If the court found no waste, then the withdrawn money was presumed spent for the benefit of the marriage (here, to pay off community debt). A community asset must be valued as of the date the divorce decree is entered - which was about $2,486.31, not the pre-withdrawal $30,000. By valuing the account at $30,000 without finding waste, the court effectively penalized Brian for waste it had said did not exist. The appellate court reversed this part and sent it back for a proper valuation and recalculation of the property division. The second issue was alimony. Bryanna asked for alimony so she could finish her education, explaining she had stayed home by agreement during the marriage. The trial court awarded her $1,650 per month for three years. In doing so, it decided Brian was capable of earning $12,680 per month - the monthly average from his 2022 tax return - even though his most recent 2023 financial disclosure showed a much lower gross monthly income of $7,271.16 plus small, occasional overtime. The court found Brian's explanation for why he stopped working overtime (the end of pandemic bonuses, more nurses hired, and his new custody schedule) not credible, and concluded he was reducing his income to lower his support obligations. The Court of Appeals agreed the trial court could award alimony and had properly analyzed the required statutory factors. But it found the *amount* was not supported by substantial evidence. The court had effectively added about $5,000 per month of "imputed" (assumed) income to Brian's figure without identifying how much of that was supposed to be overtime versus regular pay, and without evidence showing Brian could actually work that much overtime given the end of pandemic conditions and his new parenting duties. The appellate court also pointed out a factual mistake: the trial court described Brian's parenting time as a flexible "visitation" schedule, when in fact he had been awarded joint physical custody, which limited his availability to pick up extra shifts. Because the trial court did not properly account for Brian's changed circumstances or his actual ability to pay, the appellate court reversed the alimony amount and sent it back for reconsideration. Because it reversed the underlying rulings, the court also reversed the order requiring Brian to pay $4,245 of Bryanna's attorney fees.