HORTA VS. HORTA (CHILD CUSTODY) C/W 86978

Statutes cited

Key holdings

Practitioner summary

The panel reviewed each challenge under abuse-of-discretion standards and declined to disturb findings supported by substantial evidence. **Income determination.** A district court's factual findings, including a party's income, are reviewed for abuse of discretion and will not be set aside unless clearly erroneous or unsupported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Substantial evidence is evidence a reasonable person may accept as adequate to sustain a judgment. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). The court will not reweigh conflicting evidence or reassess witness credibility. Id. at 152, 161 P.3d at 244. The district court calculated Paco's monthly income from Silver Lands' 2021 tax return (salary of $120,500 plus net profits of $278,320) and excluded the $461,000 shareholder loan, which the return listed as a loan rather than business income. Because Paco's expert testified shareholder loans are not income, Melissa's expert could not opine whether a loan qualifies as income "from a tax perspective," and neither expert testified the return was inaccurate, no clear error was shown. **Alimony.** An alimony determination is reviewed for abuse of discretion. Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019). NRS 125.150(9)(e) requires consideration of the "income, earning capacity, age and health" of each spouse, and a court may "consider what a [spouse] could in good faith earn if [they] so desired." Rosenbaum v. Rosenbaum, 86 Nev. 550, 554, 471 P.2d 254, 256 (1970). Imputing $100,000 based on Melissa's prior earning potential (she earned a $100,000 annual salary at Ensemble Services from July 2017 to May 2018), her work history, professional licenses, and credentials, was within discretion. Paco's willingness to pay $5,000 per month did not create a binding stipulation; cf. Leher McGovern Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1118, 197 P.3d 1032, 1042 (2008). A court is not limited to the amount requested but must determine an amount proven by the facts and evidence. Heim v. Heim, 104 Nev. 605, 613, 763 P.2d 678, 683 (1988), superseded by statute on other grounds as stated in Rodriguez v. Rodriguez, 116 Nev. 993, 994-1000, 13 P.3d 415, 416-20 (2000). The court evaluated each factor under NRS 125.150(9)(a)-(k) and awarded $3,000 per month for 5 years. **Child support.** Support of minor children rests in the sound discretion of the trial court and will not be disturbed unless clearly abused, and will be upheld if supported by substantial evidence. Flynn v. Flynn, 120 Nev. 436, 440, 92 P.3d 1224, 1227 (2004). NAC 425.130 requires consideration of reasonable child care costs and an equitable division. The decree expressly addressed child care and medical costs and noted neither party reported daycare expenses; Melissa's on-appeal assertion of approximately $1,200 in child care costs was not preserved with a record citation. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Substantial evidence supported denial of arrears, as a pre-trial order deferred arrears to trial and Paco showed $10,000 payments in September and October 2021 satisfying the $9,703 temporary obligation. **Marital waste and the Reno investment.** Disposition of community property is reviewed for abuse of discretion. Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 919 (1996). An equal disposition is required absent a "compelling reason," NRS 125.150(1)(b), such as marital waste, Kogod, 135 Nev. at 75, 439 P.3d at 406. Dissipation refers to a spouse's use of marital property for a selfish purpose unrelated to the marriage in contemplation of divorce or when the marriage is in serious jeopardy or undergoing an irretrievable breakdown. Id. at 75-76, 439 P.3d at 406-07; cf. Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 487 (Ct. App. 2023). Because the December 2019 investment predated the divorce filing by nearly 18 months and Melissa did not argue the marriage was then in serious jeopardy or undergoing an irretrievable breakdown, the court did not abuse its discretion in finding she failed to shift the burden to Paco. However, the district court made no findings on whether any investment funds remained; Paco testified the home was sold but could not recall the price. The panel reversed and remanded for clear findings on the existence or whereabouts of the $476,000, directing that any existing funds be equally divided absent clear findings supporting an unequal distribution. See NRS 125.150(1)(b). **Attorney and expert fees.** An award of attorney fees in divorce proceedings is reviewed for abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). Courts must consider the disparity in the parties' income, Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998), and fees may be awarded so a party can meet an adversary on an equal basis without liquidating assets or jeopardizing themselves financially, Sargeant v. Sargeant, 88 Nev. 223, 227, 495 P.2d 618, 621 (1972). Expert fee awards are also reviewed for abuse of discretion. Logan v. Abe, 131 Nev. 260, 267, 350 P.3d 1139, 1144 (2015). Because the custody determination was resolved by stipulation, Melissa was not a "prevailing party." Dimick v. Dimick, 112 Nev. 402, 404, 915 P.2d 254, 256 (1996); the panel noted it cannot overrule supreme court precedent, Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d at 487 n.7. Her claim of prevailing on pretrial pleadings lacked record citations. See NRAP 28(e); Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 997, 860 P.2d 720, 725 (1993). She also failed to show Paco's claims or defenses were "brought or maintained without reasonable ground or to harass" under NRS 18.010(2)(b). See Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 293-94 (Ct. App. 2023). As to EDCR 5.219, the court effectively excused mutual conduct. Melissa also failed to account for $10,000 per month as ordered, conceding she accounted for only approximately $58,000. **Remaining claims.** Custody and parenting-time allocations are reviewed for abuse of discretion. Wallace v. Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996). Melissa's claim that Paco received more parenting time than requested was belied by the record (Paco requested time on alternating weeks). The family-therapist argument was moot because court-ordered therapy ended in February 2024. See Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010). NRCP 16.21(a) generally prohibits postjudgment discovery, permitting it only in the two situations under NRCP 16.21(b); Melissa did not argue "good cause." Her interest-on-equalization-payment arguments were raised for the first time on appeal, Old Aztec Mine, 97 Nev. at 52, 623 P.2d at 983, and lacked supporting authority, Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). **Cross-appeal: Silver Lands valuation.** When conflicting evidence, including expert testimony, is presented, weight and credibility are for the trier of fact. Ford Motor Co. v. Trejo, 133 Nev. 520, 531, 402 P.3d 649, 657 (2017); Ellis, 123 Nev. at 152, 161 P.3d at 244. The Pereira method is the preferred allocation method for apportioning the community interest in separate property unless the owner establishes a different method is more likely to accomplish justice. Cord v. Neuhoff, 94 Nev. 21, 26, 573 P.2d 1170, 1173 (1978). Under Pereira, the court may allocate a fair rate of return on the initial investment to the separate estate, with the remaining value going to the community. Devries v. Gallio, 128 Nev. 706, 710, 290 P.3d 260, 263 (2012) (citing Pereira v. Pereira, 156 Cal. 1, 103 P. 488 (1909)). The district court found Johnson's community-interest methodology (Pereira) correct and adopted his undisputed pre-marital value of $1,409,900, then found Allen's trial valuation of $2,500,000 more accurate - a credibility determination not reweighed on appeal. The resulting community interest was $1,091,000.

In plain language

Melissa and Paco Horta married in October 2012 and have three minor children. About a decade before the marriage, Paco's father gave him a landscaping business called Silver Lands, Inc. Paco earned a salary from the business and also took money out as company profits. Paco filed for divorce in May 2021, and while the case was pending the district court ordered him to pay temporary spousal support, temporary child support, and some of Melissa's attorney and expert fees. After a trial, the district court issued a divorce decree. It calculated Paco's monthly income, imputed (assigned) an income of $100,000 per year to Melissa based on her earning capacity, awarded her alimony of $3,000 per month for five years and child support of $3,474 per month, and divided the couple's community property. Because of the way it divided property, the court ordered Paco to pay Melissa an "equalization payment" of about $738,000 in monthly installments over ten years. The court declined to award either party additional attorney or expert fees. On appeal, Melissa raised many arguments: that the court miscalculated Paco's income by leaving out a $461,000 "shareholder loan" he took from the business; that the court should not have assumed she could earn $100,000; that it should have awarded more child support and back child support; that Paco wasted $476,000 of marital money on a failed Reno property investment; that she deserved attorney and expert fees; and several other points about parenting time, the family therapist, keeping discovery open on the marital home, and interest on the equalization payment. Paco, in his cross-appeal, argued the court miscalculated the community's interest in Silver Lands. The Court of Appeals rejected almost all of these arguments, finding that the district court acted within its discretion and that its findings were supported by the evidence. On most points, the appeals court explained that it does not re-weigh conflicting evidence or re-judge which witnesses were more believable - that is the trial court's job. The appeals court agreed with Melissa on one narrow point. While the trial court properly found that Melissa had not proven Paco "wasted" the $476,000 Reno investment, the trial court never made findings about whether any of that money still existed. Paco testified he got no return on the investment, but also said the investment home was eventually sold, though he could not recall the sale price. Because some or all of the money might still exist, the appeals court sent the case back (remanded) so the trial court can determine whether any funds remain and, if so, divide them. The court affirmed everything else in the decree.