NELSON VS. NELSON (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

By the Court, Stiglich, J. (Gibbons and Silver, JJ., concurring). The court considered whether it had jurisdiction to review a district court order denying a request for a joint preliminary injunction pursuant to EDCR 5.517 in a family law matter, and held it did not. The appeal arose from the long-running Nelson divorce and self-settled spendthrift trust litigation. After Klabacka v. Nelson, 133 Nev. 164, 394 P.3d 940 (2017), remanded for tracing of community interests, the district court declined to extend a joint preliminary injunction to most of the ELN Trust assets. Reviewing jurisdiction sua sponte, the court reiterated that it has jurisdiction to consider an appeal only when authorized by statute or court rule. Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 444, 874 P.2d 729, 732 (1994); State v. State Bank & Tr. Co., 36 Nev. 526, 538, 137 P. 400, 403 (1913). NRAP 3A(b)(3) authorizes appeals from orders granting or refusing to grant (or dissolving or refusing to dissolve) an injunction. Consistent with Peck v. Crouser, 129 Nev. 120, 124, 295 P.3d 586, 588 (2013), the court held that injunctions for purposes of NRAP 3A(b)(3) are those governed by NRCP 65, which prescribes the procedure and form for injunctions. Joint preliminary injunctions under EDCR 5.517 are not subject to NRCP 65: NRCP 65(e) expressly provides that the rule is inapplicable to actions for divorce, alimony, separate maintenance, or custody of children, and EDCR 5.517 supplies its own procedure (see EDCR 5.101). The court applied plain-meaning construction to the rules. City Council of Reno v. Reno Newspapers, Inc., 105 Nev. 886, 891, 784 P.2d 974, 977 (1989); Weddell v. Stewart, 127 Nev. 645, 651, 261 P.3d 1080, 1084 (2011) (rules of statutory construction apply to court rules). The court emphasized the procedural differences: an NRCP 65 injunction requires a showing of likelihood of success and irreparable harm, notice, and security (Dep't of Conservation & Nat. Res. v. Foley, 121 Nev. 77, 80, 109 P.3d 760, 762 (2005); NRCP 65(a)(1), (c)), whereas an EDCR 5.517 joint preliminary injunction is issued by the clerk upon either party's request with no showing of probable success or harm and no bond, and remains modifiable by the court until decree or final judgment (EDCR 5.517(d); see NRCP 65(e)(1); Turner v. Saka, 90 Nev. 54, 63 n.10, 518 P.2d 608, 614 n.10 (1974)). Accordingly, orders granting or denying EDCR 5.517 injunctions are not appealable under NRAP 3A(b)(3). The court noted that writ relief remains available: where no rule or statute authorizes an appeal, relief must be sought by an original writ petition under NRS Chapter 34. Pengilly v. Rancho Santa Fe Homeowners Ass'n, 116 Nev. 646, 649, 5 P.3d 569, 571 (2000). Given EDCR 5.517's mandatory language, a writ petition is the appropriate vehicle to review the order for an arbitrary or capricious exercise of discretion. Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). The court dismissed the appeal for lack of jurisdiction.

In plain language

Lynita and Eric Nelson, while married, signed an agreement that converted their community property into separate property and funded two self-settled spendthrift trusts (the Eric L. Nelson Nevada Trust and the Lynita S. Nelson Nevada Trust). After Eric filed for divorce in 2009, the court clerk automatically issued a standard family-court 'joint preliminary injunction' - an order that freezes the parties from selling, hiding, or giving away property that might be community property while the divorce is pending. In an earlier appeal (Klabacka v. Nelson), the Supreme Court sent the case back to the trial court to trace which assets were truly separate versus community. On remand, Lynita asked the district court to reaffirm the joint preliminary injunction over the trust assets. The court issued a preliminary injunction covering only two assets and, in an October 2018 order, declined to extend it to the other assets in Eric's trust. Lynita appealed that refusal. The Supreme Court never reached whether the trial court was right or wrong. Instead, it dismissed the appeal because it lacked jurisdiction to hear it. Nevada appellate courts can only hear appeals that a statute or court rule actually authorizes. The rule Lynita relied on, NRAP 3A(b)(3), allows appeals only from injunctions governed by NRCP 65 - the general civil rule for injunctions. Joint preliminary injunctions in family cases are different animals: they come from a local court rule (EDCR 5.517), the clerk issues them automatically on request without any showing of likely success or irreparable harm, and no bond is required. NRCP 65 itself expressly says it does not apply to divorce, alimony, separate-maintenance, or custody cases. Because these family-court injunctions are not NRCP 65 injunctions, an order granting or denying one cannot be appealed under NRAP 3A(b)(3). The Court explained that Lynita was not left without a remedy: the correct way to challenge such an order is to file a writ petition (a request asking the higher court to order the lower court to act correctly), which can be used to review an arbitrary or capricious exercise of the trial court's discretion. The appeal was dismissed.