LOPEZ, JR. VS. LOPEZ (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's decision whether to award alimony for an abuse of discretion. Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019). Under NRS 125.150(1)(a), the district court "[m]ay award such alimony to either spouse...as appears just and equitable." The decision lies within the district court's discretion, 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. The district court's factual findings as to those factors must be "supported by substantial evidence." Eivazi v. Eivazi, 139 Nev. 408, 426, 537 P.3d 476, 492 (Ct. App. 2023). The court recited the governing principles: "Alimony is financial support paid from one spouse to the other whenever justice and equity require it." Rodriguez v. Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000); see also NRS 125.150(1)(a). Alimony may be awarded "based on the receiving spouse's need and the paying spouse's ability to pay," Kogod, 135 Nev. at 68, 439 P.3d at 401, or to compensate for economic loss resulting from the marriage and divorce, id. at 70, 439 P.3d at 403. However, "our case law does not require the district court to award alimony so as to effectively equalize salaries." Shydler v. Shydler, 114 Nev. 192, 199, 954 P.2d 37, 41 (1998). The district court has broad discretion in deciding whether to award alimony. Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974). Applying that framework, the court found that the district court adequately evaluated the NRS 125.150(9) factors. The district court determined that alimony was not warranted because Raul's expenses are limited and he did not present a need that would overcome the burden to Rosalba based on her necessary expenses. See Applebaum v. Applebaum, 93 Nev. 382, 386, 566 P.2d 85, 88 (1977) (affirming denial of alimony where the spouse "had adequate resources with which to support herself"). The district court credited Rosalba's testimony about her marital residence costs, costs related to the children (including the adult child J.L. residing with her), and health-related costs, and noted both parties would receive equal equity from the sale of the home. On Raul's challenge to the consideration of specific expenses, the court held that NRS 125.150(9)(a) requires the district court to consider the financial conditions of each spouse, which includes their expenses, citing 24A Am. Jur. 2d Divorce and Separation § 668 (2018). The court noted Raul identified no legal authority supporting his contention that the district court could not consider the specific expenses at issue, and declined to consider the argument under Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006). The court further found that the district court's determination that Rosalba's expenses were not extravagant was supported by substantial evidence. The court characterized Raul's remaining arguments as a request to reweigh the evidence, which an appellate court does not do. See Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009) ("credibility determinations and the weighing of evidence are left to the trier of fact"); Roggen v. Roggen, 96 Nev. 687, 689, 615 P.2d 250, 251 (1980). Finding no abuse of discretion, the court affirmed. See Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010) (quoting Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 919 (1996)). As to ancillary issues, the court held that Raul's challenge to the attorney fees and costs award was premature because the decree contemplated further motion practice and entry of a final order on the amount, citing Rennels v. Rennels, 127 Nev. 564, 569, 257 P.3d 396, 399 (2011). To the extent Raul challenged any final fee order entered during the pendency of the appeal, the court held it lacked jurisdiction because Raul did not file a separate notice of appeal, citing Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000), and NRAP 3(c)(1)(B). The court treated the misstatements regarding Rosalba's high school diploma and the year of marriage as harmless clerical errors, citing Black's Law Dictionary (12th ed. 2024), Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010), and NRCP 61.

In plain language

Raul and Rosalba Lopez married in May 2014 and have two children. In September 2022, Rosalba filed for divorce. The couple agreed on how to handle custody of their children - they would share joint legal and physical custody, and Rosalba would pay Raul child support. That left only two things for the court to decide: whether Raul should receive alimony (financial support paid by one spouse to the other after divorce), and whether attorney fees and costs should be awarded. At a hearing in September 2023, both Raul and Rosalba testified about their finances. Rosalba works full-time as an operations supervisor at a freight company. She testified that she supports the parties' daughter, J.L., who turned 18 during the case and continued to live with her, and that she covers her own household and medical costs, including treatment for breast cancer and a skin removal surgery that insurance did not cover. Her position was that she could not afford to pay Raul alimony. Raul testified that he has not worked since 2018 and receives Social Security Disability benefits. He said he wanted alimony so he could move out of his parents' home, where he has lived since the separation, and he argued that Rosalba exaggerated her expenses and could afford to pay him. The district court weighed the factors the law requires it to consider for alimony. It found Rosalba's net monthly income (after tax deductions) to be $5,984.27 and her expenses to be $5,477. It found Raul's gross monthly income from Social Security Disability benefits to be $1,856.90 and noted his expenses were limited. The court also noted that Raul had covered his own living expenses for about a year after moving out without Rosalba's help, and that both parties would receive an equal lump sum from selling the marital home. The court concluded that Raul did not show a need for support that outweighed the burden such payments would place on Rosalba, and that Rosalba did not have the ability to pay alimony. The court denied alimony and indicated Rosalba would be awarded attorney fees and costs, with a separate order to follow on the amount. On appeal, Raul argued that the court should not have counted Rosalba's spending on their adult daughter, that Rosalba's expenses were inflated, and that some of her medical expenses were unnecessary. The Court of Appeals disagreed. It explained that the law requires the court to consider each spouse's financial condition, which includes their expenses. Raul did not point to any legal authority showing the court could not consider these particular expenses. The appellate court also explained that Raul was essentially asking it to re-weigh the evidence - to decide which testimony was believable and how much weight it deserved - which is the job of the trial court, not the appellate court. Because the trial court's findings were supported by the evidence and Raul identified no legal error, the Court of Appeals found no abuse of discretion and affirmed the denial of alimony. The court also addressed a few side points. It noted that Raul's challenge to the attorney fees award was premature, because the decree contemplated further proceedings to set the fee amount and no final order on fees had been properly appealed. And it treated two mistakes in the decree - a reference to Rosalba obtaining a high school diploma when she did not finish high school, and a statement that the marriage occurred in 2015 instead of 2014 - as harmless clerical errors that did not change the analysis.