HOSNY VS. HOSNY

Statutes cited

Key holdings

Practitioner summary

The court reviewed the district court's factual findings for abuse of discretion, setting them aside only if clearly erroneous or unsupported by substantial evidence (Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009)), noting that "[d]eference is not owed to legal error" (Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142-43 (2015)). Alimony determinations are likewise reviewed for abuse of discretion (Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019)), with the court declining to interfere unless it appears "on the entire record in the case that the discretion of the trial judge has been abused" (Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 918-19 (1996)). On the alimony framework, the court reiterated that alimony must be "just and equitable" under NRS 125.150(1)(a); that NRS 125.150(1)(a) permits an award for a specified period or in a lump sum; that NRS 125.190 allows permanent or lifetime alimony; and that the district court must consider the eleven factors in NRS 125.150(9) (Devries v. Gallio, 128 Nev. 706, 711-14, 290 P.3d 260, 264-65 (2012)). Alimony compensates a spouse for non-monetary contributions and economic losses from early termination of the marriage (Kogod, 135 Nev. at 71, 439 P.3d at 404) and is "based on the receiving spouse's need and the paying spouse's ability to pay" (Kogod, 135 Nev. at 68, 439 P.2d at 401). Although the district court applied NRS 125.150(9)(a)-(k), the court held its findings were contradictory, unclear, and unsupported by substantial evidence. The district court found Amr's income was $120,000 in 2017 and $72,000 in 2019 but never specified the income figure used to calculate alimony, and appeared to conclude Amr could continue his historical earnings without accounting for the COVID-19-related downturn (Ramacciotti v. Ramacciotti, 106 Nev. 529, 533, 795 P.2d 988, 990 (1990)). Because the court divided the income-generating rental properties, Amr's passive income would decrease, and the court failed to account for the entire property award Huriyeh would receive — including passive income — in assessing her need (Kogod, 135 Nev. at 72, 439 P.3d at 404). The court emphasized that a district court cannot "simply process a case through a list of statutory factors and then announce a ruling" (see Davis, 131 Nev. at 452, 352 P.3d at 1143) and must tie underlying factual findings to the amount and duration of any award (Devries, 128 Nev. at 712-13, 290 P.3d at 265). Erroneous findings as to amounts Amr paid his adult children and paid Huriyeh during litigation further supported reversal (MB Am., Inc. v. Alaska Pac. Leasing, 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016)). On remand, the district court must assess the entire division of community property and debt, including the promissory note, the Bank of America credit card, and the U.S. Bank credit card (Heim v. Heim, 104 Nev. 605, 609, 763 P.2d 678, 680 (1988)). On the demonstrative exhibits, reviewed for abuse of discretion (Abid v. Abid, 133 Nev. 770, 772, 406 P.3d 476, 478 (2017)), the court noted NRS 52.275 permits presentation of voluminous writings as a chart, summary, or calculation where the writings cannot conveniently be examined in court, and that Allred v. State, 120 Nev. 410, 419, 92 P.3d 1246, 1252-53 (2004), and United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987), treat such summaries as testimonial aids rather than substantive evidence. Here, exhibits 5 and 14 were admitted despite the expert's failure to testify to establish foundation, which the court found clearly erroneous (Burroughs Corp. v. Century Steel, Inc., 99 Nev. 464, 470, 664 P.2d 354, 358 (1988); NRS 52.015). Because the exhibits contained mathematical errors and information inconsistent with other admitted evidence, reliance on them in awarding alimony and dividing debts was an abuse of discretion, and the error was prejudicial. On expert witness fees, reviewed for abuse of discretion (Frazier v. Drake, 131 Nev. 632, 644, 357 P.3d 365, 373 (Ct. App. 2015)), NRS 18.005(5) permits recovery of reasonable fees of not more than five expert witnesses at not more than $1,500 each unless the court allows a larger fee after determining the circumstances of the expert's testimony were of such necessity as to require it. The court must provide an express, careful, and preferably written explanation of its analysis (Frazier, 131 Nev. at 650, 357 P.3d at 377). Because an "expert must testify to recover more than $1,500 in expert fees" (Pub. Emps.' Ret. Sys. of Nev. v. Gitter, 133 Nev. 126, 134, 393 P.3d 673, 681 (2017)), and this expert did not testify, awarding $6,000 was an abuse of discretion. On remand the district court must vacate that award, determine what amount, if any, Huriyeh is entitled to, and ensure she does not receive a double recovery for fees and costs incurred in the assignment of certain debts to Amr.

In plain language

Amr and Huriyeh Hosny married in 1989 in Macau and moved to the United States in 2004, where they ran businesses and held assets together. They separated in 2018, and Huriyeh filed for divorce. After a 2020 trial, the family court entered a divorce decree that, among other things, ordered Amr to pay Huriyeh $5,000 per month in lifetime alimony (ongoing financial support), reimburse her $6,000 for an expert witness, pay a $38,000 loan Huriyeh had taken from her sister (in part to cover her attorney and expert fees), and pay off a U.S. Bank credit card. Amr appealed. The Court of Appeals found several problems with how the trial court reached its decisions. On alimony, the appeals court concluded that the trial court's factual findings were "contradictory, unclear, and not supported by substantial evidence." The trial court noted that Amr's income was $120,000 in 2017 but had dropped to $72,000 by 2019, yet it never settled on which income figure it actually used to set the alimony amount. The appeals court said the trial court appeared to assume Amr could keep earning what he historically had, without accounting for the downturn in his business tied in part to the COVID-19 pandemic. The trial court also divided rental properties between the spouses, which means Amr will collect less rental income going forward — a fact the appeals court said the trial court did not properly factor in when deciding how much support Amr could afford to pay or how much Huriyeh actually needed. The appeals court also identified erroneous findings about how much Amr paid to support the couple's adult children and how much he was already paying Huriyeh during the case. On the demonstrative exhibits (exhibits 5 and 14, which were charts or summaries the trial court relied on), the appeals court held it was error to admit them because the expert who apparently prepared them never testified to establish the foundation for the financial information they contained. The exhibits also contained mathematical errors and information inconsistent with other admitted evidence. Because the trial court leaned on these flawed exhibits in setting alimony and dividing debts, the appeals court found the error prejudicial. On the $6,000 in expert witness fees, the appeals court explained that under Nevada law, an expert generally must testify in order to recover more than $1,500 in fees. Because this expert did not testify, the trial court abused its discretion in awarding fees above that threshold. The appeals court reversed the district court's judgment and sent the case back for further proceedings consistent with its order. On remand, the trial court will need to reassess the full division of community property and debt (including the promissory note, the Bank of America card, and the U.S. Bank card) when deciding alimony, and ensure Huriyeh does not receive a "double recovery" for fees and costs already covered through debts assigned to Amr.