OSHIRO VS. OSHIRO (FAMILY)

Statutes cited

Key holdings

Practitioner summary

Standard of review: Statutory construction is reviewed de novo, Martin v. Martin, 138 Nev. 786, 789, 520 P.3d 813, 817 (2022); the fairness of an alimony award is reviewed for abuse of discretion, Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 918-19 (1996). "Rulings supported by substantial evidence will not be disturbed on appeal." Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004). Doctrinal framework: NRS 125.150(1)(a) authorizes alimony "as appears just and equitable," and NRS 125.150(9) lists 11 factors the court "shall consider," beginning with each spouse's "financial condition." See also Kogod v. Cioffi-Kogod, 135 Nev. 64, 68, 439 P.3d 397, 401 (2019) ("[a]limony, in its most elementary form, is based on the receiving spouse's need and the paying spouse's ability to pay"). NRS 125.150's authorization is qualified by NRS 125.165, which provides that "in making an award of alimony, the court shall not: (1) Attach, levy or seize by or under any legal or equitable process . . . [or] (2) Make an assignment or otherwise divide any federal disability benefits awarded to a veteran for a service-connected disability." Statutory construction: Applying Mason v. Cuisenaire, 122 Nev. 43, 50, 128 P.3d 446, 450 (2006), the court found NRS 125.165's plain text reaches only direct action against benefits, not passive consideration. Invoking noscitur a sociis, Bldg. Energetix Corp. v. EHE, LP, 129 Nev. 78, 85, 294 P.3d 1228, 1234 (2013), the court held that the prohibitive verbs - attach, levy, seize, assign, divide - share a collection-action character. Inserting "consider" would render those verbs superfluous, contrary to Clark County v. S. Nev. Health Dist., 128 Nev. 651, 656, 289 P.3d 212, 215 (2012), and contradict NRS 125.150(9)'s mandate to consider financial condition. The court invoked Merritt v. Merritt, 40 Nev. 385, 389-90, 160 P. 22, 22 (1916), for the principle that courts cannot read into statutes what is not there. Legislative history: As introduced, A.B. 140 (78th Leg. 2015) prohibited courts from "consider[ing]" military disability benefits in alimony, intended to mirror 38 U.S.C. § 5301. After legislative debate, the word "consider" was removed and replaced with the current verbs more closely tracking § 5301. The court treated this excision as confirming the natural reading. See Urias v. First Jud. Dist. Ct., 141 Nev., Adv. Op. 24, 568 P.3d 576, 580 (2025); Sandpointe Apartments v. Eighth Jud. Dist. Ct., 129 Nev. 813, 828, 313 P.3d 849, 859 (2013); Pitmon v. State, 131 Nev. 123, 129, 352 P.3d 655, 659 (2015). The court also cited Justice O'Connor's concurrence in Rose v. Rose, 481 U.S. 619, 637 (1987), for the proposition that 38 U.S.C. § 5301 was "not intended to protect the veteran against claims by his family." Federal preemption arguments: The court distinguished Mansell v. Mansell, 490 U.S. 581 (1989), and Howell v. Howell, 581 U.S. 214 (2017), as concerning waiver of military retirement pay in the community-property context, not alimony. Robert conceded he received no military retirement pay. Citing Shydler v. Shydler, 114 Nev. 192, 197-98, 954 P.2d 37, 40 (1998), the court emphasized that community property division and alimony are distinct doctrines. Howell, 581 U.S. at 222, expressly left courts "free to take account of" disability benefits when evaluating alimony need. The court reaffirmed its narrow reading of Mansell from Martin, 138 Nev. at 790-91, 520 P.3d at 817-18. Persuasive authority: The court joined the "overwhelming majority" of jurisdictions permitting consideration of military disability benefits for alimony purposes, citing In re Marriage of Morales, 214 P.3d 81, 85 (Or. Ct. App. 2009); Marriage of Strong v. Strong, 8 P.3d 763, 770 (Mont. 2000); Clauson v. Clauson, 831 P.2d 1257, 1263 n.9 (Alaska 1992); Urbaniak v. Urbaniak, 807 N.W.2d 621, 626 (S.D. 2011); and Conte v. Conte, No. 87945-COA, 2025 WL 1770864, at *5 (Nev. Ct. App. June 25, 2025). The court rejected the contrary approach in Ex Parte Billeck, 777 So. 2d 105, 108-09 (Ala. 2000). NRS 125.150(1)(b) argument: The court rejected Robert's contention that the district court was required to provide a "compelling reason" for the award. NRS 125.150(1)(b) governs community property division; alimony is governed by NRS 125.150(1)(a). See Kogod, 135 Nev. at 66-79, 439 P.3d at 400-06. Application to award: Reviewing for abuse of discretion, the court found substantial evidence supported the $2,000 monthly award given the parties' financial conditions, earning capacities, ages, health, contributions in the home, and standard of living. The court noted that the district court did not order payment from disability benefits and that the decree "stays within the bounds by leaving Robert's military disability benefits to Robert." Reservation: The court expressly "reserve[d] for another day the more difficult question, not presented by this appeal, of whether NRS 125.165 would invalidate an award that could be paid only by drawing from military disability benefits," noting that NRS 125.165 differs from analog statutes such as Cal. Civ. Proc. Code § 483.013 (West 2025) and Wyo. Stat. Ann. § 20-2-114(b) (West 2025) by applying anti-attachment language expressly to alimony.

In plain language

Cherlyn and Robert Oshiro married in 1999 in Las Vegas. Robert had served in the military, including four years in the Vietnam War, and received a service-connected injury. Throughout the marriage, the couple lived in part on Robert's military disability benefits. After Cherlyn stopped working in 2007 following a car accident and Robert retired in 2013, the couple lived on Robert's military disability benefits and their combined Social Security benefits, with Cherlyn serving as Robert's primary caretaker as his disability worsened. Cherlyn filed for divorce in 2023. The parties resolved how to split their shared property on their own, leaving only the question of alimony - ongoing financial support paid from one ex-spouse to the other - for the trial judge. At the time of trial, Robert received $3,946.25 per month in military disability benefits and $2,071 per month in Social Security benefits; Cherlyn received $998 per month in Social Security benefits. Cherlyn asked for $3,400 per month. Robert argued the court could only look at the couple's Social Security benefits and proposed $536.50 per month. The district court awarded $2,000 per month. Robert appealed. His main argument was that a Nevada statute, NRS 125.165, forbids courts from dividing a veteran's military disability benefits when setting alimony, and that the statute also forbids courts from even considering those benefits in the calculation. He argued the $2,000 award - which would require him to hand over about 96.6 percent of his Social Security income - effectively divided his disability benefits in disguise. The Nevada Supreme Court rejected that reading. The court held that NRS 125.165 prohibits direct actions against the benefits themselves - attaching, levying, seizing, assigning, or dividing them - but does not prohibit a court from considering that those benefits exist and contribute to a divorcing veteran's overall financial picture. The court relied on the plain text of the statute, the legislative history (an earlier draft contained the word "consider" but the legislature deliberately removed it), and the rule that words in a list take meaning from their neighbors - here, all the prohibited verbs describe collection actions, not passive consideration. The court also distinguished two U.S. Supreme Court cases Robert cited, Mansell v. Mansell and Howell v. Howell, explaining that those cases involved community property division and waivers of military retirement pay, not alimony. The court noted that Howell expressly left state courts free to take a veteran's disability benefits into account when evaluating need for alimony, and that the overwhelming majority of state courts allow consideration of such benefits in alimony determinations. Reviewing the $2,000 award itself for abuse of discretion, the court found substantial evidence supported it - the trial court considered both spouses' financial conditions, earning capacities, ages, health, home contributions, and standard of living. The court acknowledged that the award came "just up to that line" because Robert would have to pay nearly all of his Social Security benefits to satisfy it, but observed that the district court did not order him to pay from his disability benefits. The court expressly reserved for another day the harder question of whether NRS 125.165 would invalidate an alimony award that could only be paid by drawing from military disability benefits.