MAHONEY, JR. VS. MAHONEY C/W 82413

Statutes cited

Key holdings

Practitioner summary

Standard of review. Factual findings are reviewed for substantial evidence: "this court will not disturb a district court's findings of fact if they are supported by substantial evidence." Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003). "Substantial evidence is that [evidence] which a reasonable mind might accept as adequate to support a conclusion." J.D. Constr., Inc. v. IBEX Int'l Grp., 126 Nev. 366, 380, 240 P.3d 1033, 1043 (2010) (quoting Radaker v. Scott, 109 Nev. 653, 657, 855 P.2d 1037, 1040 (1993)). Attorney fee and cost awards are reviewed for abuse of discretion. MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88, 367 P.3d 1286, 1292 (2016); see also Campbell v. Campbell, 101 Nev. 380, 383, 705 P.2d 154, 156 (1985). Appellate jurisdiction and waiver at the threshold. Although Bart filed his notice of appeal before the district court resolved his NRCP 60(b) motion to set aside, the appeal was properly before the court under NRAP 4(a)(6), with the notice treated as filed on April 12, 2021, the date the district court denied the motion. Because Bart failed to address the denial order in his briefing, he waived any challenge to it. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). Notice and due process. Applying Grupo Famsa, S.A. de C.V. v. Eighth Judicial Dist. Court, 132 Nev. 334, 337, 371 P.3d 1048, 1050 (2016) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950)), the court reiterated that due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections," and that due process is satisfied by giving both parties a meaningful opportunity to present their case, J.D. Constr., 126 Nev. at 376, 240 P.3d at 1040 (quoting Mathews v. Eldridge, 424 U.S. 319 (1976)). The court cited Eighth Judicial District Court Administrative Order 20-17 (requiring lawyers and self-represented litigants to register for electronic service), NEFCR 9(d) (requiring service by traditional means on parties not receiving electronic service), and NRCP 5(b)(2)(C) (service by mailing to a person's last-known address is complete upon mailing). Because the record showed Bonnie mailed notice of the rescheduled hearing to Bart's last-known address of record, service was proper; the court analogized to Durango Fire Prot., Inc. v. Troncoso, 120 Nev. 658, 663, 98 P.3d 691, 694 (2004) (service complete upon mailing under NRCP 5(b)). The court additionally found Bart had actual notice through emails from Bonnie's counsel and noted he offered no affidavit or other proof that he was not living at the last-known address. In a footnote, the court observed the onus was on Bart to update his address with the court, citing Prestige of Beverly Hills, Inc. v. Weber, No. 55837, 2012 WL 991696, at *4 (Nev. Mar. 21, 2012) (Order of Affirmance), and that he was required to register for electronic service under Administrative Order 20-17 but evidently failed to do so. Waiver of merits challenges. Bart's substantial-evidence attacks on the arrearage findings (spousal and child support arrears, bonus portions, interest and penalties) were deemed waived because they were raised for the first time on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); Lam v. Nhu Tran Found., Inc., No. 82032-COA, 2021 WL 4317390 (Nev. Ct. App. Sept. 22, 2021) (Order of Affirmance) (rejecting "manifest injustice" and "exceptional circumstances" exceptions to waiver where the issue could have been raised below); cf. NRCP 1. A footnote catalogs Bart's forgone opportunities: his opposition asserted Bonnie's schedule of arrears was "inaccurate and incomplete" without explanation; he did not respond to her updated schedules or pretrial memorandum; and he failed to attend the evidentiary hearing. Attorney fees and costs. The court held the awards were statutorily authorized: absent a finding of undue hardship, NRS 125B.140(2)(c)(2) mandates an award of attorney fees if the court finds child support arrearages are owed, see Edgington v. Edgington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003), and NRS 125.180(1) permits an award of both attorney fees and costs where a party defaults on payments required under a judgment for alimony and support. The reasonable amount of fees is committed to the trial court's discretion, exercised under the Brunzell factors. Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005); Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). The district court made detailed Brunzell findings—counsel's qualifications and reasonable hourly rate; the intricate character of the work, obfuscated by Bart's failure to participate; fees that were "necessary, reasonable, and commensurate to the work performed;" and Bonnie's success as prevailing party—so there was no abuse of discretion.

In plain language

Bart and Bonnie Mahoney married in 2000 and had two children. When Bart filed for divorce in 2016, the couple reached an agreement that was merged into the divorce decree. Under the decree, Bonnie received primary physical custody of the children, and Bart agreed to pay child support, cover the children on his medical insurance, pay monthly alimony for five years, pay Bonnie 25% of his annual bonuses (rising to 35% if he failed to give her his annual W-2 tax forms), and pay her attorney fees and costs from the divorce. According to the opinion, Bart did not pay the child support, alimony, or attorney fees, did not pay Bonnie a share of his bonuses, and did not provide his W-2 forms. In May 2019, Bonnie asked the district court to reduce the arrearages (the unpaid amounts) to a judgment—that is, to convert what Bart owed into an enforceable court judgment—with interest and penalties, and to review child support and award her attorney fees. The case wound its way through several hearings. Bart's attorney withdrew in 2020 because Bart had never formally retained him and had stopped communicating. After that, Bart represented himself. The evidentiary hearing was rescheduled several times and ultimately set for December 3, 2020. Notice of that hearing was mailed to Bart's last-known address on file with the court, and Bonnie's attorney also emailed Bart pretrial filings—containing the hearing's date and time—at the same email address Bart had previously used to correspond with that attorney. Bart did not show up at the December 3, 2020, hearing. The district court proceeded with only Bonnie and her attorney present, took evidence including Bart's income and bonus records obtained by subpoena, and granted Bonnie's motion. It found Bart owed child support, alimony, and attorney fees and costs from the divorce, and—because Bart never provided his W-2 forms—awarded Bonnie 35% of his bonuses. It also awarded Bonnie the attorney fees and costs of bringing the motion, setting the amount in January 2021 after Bonnie filed a detailed memorandum of her fees and costs. Bart then moved to set aside the orders under NRCP 60(b), claiming he was never notified of the hearing, but filed his notice of appeal before the district court ruled on that motion. The appeal was still properly before the Court of Appeals under NRAP 4(a)(6), which treats the premature notice as filed on the date the district court denied the set-aside motion. However, because Bart's briefs did not address the denial of that motion, any challenge to it was waived. On appeal, the Court of Appeals rejected all three of Bart's arguments. First, it held that substantial evidence supported the finding that Bart was properly notified of the hearing: notice was mailed to his last-known address (which under the court rules completes service upon mailing), and he also had actual notice via emails from Bonnie's attorney. Bart pointed to nothing in the record—such as a sworn affidavit—showing he did not actually receive notice, and the onus was on him to keep the court updated with his address. Second, the court held that Bart's challenges to the arrearage findings were waived because he never raised those specific arguments in the district court, despite multiple opportunities to do so. Third, the court held that the fee award was not an abuse of discretion: the award was authorized by statute, and the district court made detailed findings under the four-factor test from Brunzell v. Golden Gate Nat'l Bank for evaluating the reasonableness of attorney fees.