PELZ VS. PEREA (FAMILY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the post-judgment attorney fee award for abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). "An abuse of discretion occurs when the court's decision is not supported by substantial evidence." Otak Nev., LLC v. Eighth Jud. Dist. Ct., 129 Nev. 799, 805, 312 P.3d 491, 496 (2013). The court noted, however, that "deference is not owed to legal error, or to findings so conclusory they may mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450, 352 P.3d 1139, 1142 (2015). The court restated the governing framework for attorney fees in a family law case: the district court must consider the factors set forth in Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969), and must also consider the disparity in the parties' income pursuant to Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998). See Miller, 121 Nev. at 623-24, 119 P.3d at 730. Brandee sought fees under NRS 125C.250, which allows the award of attorney fees in a child custody action, and NRS 18.010(2)(b), which allows the award of attorney fees when the complaint or claim is brought "without reasonable ground or to harass the prevailing party." Her memorandum discussed the Brunzell factors and attached exhibits showing costs and fees incurred, requesting $27,441. Applying the framework, the court found that the district court's written order stated it had reviewed the pleadings, papers, and arguments; made findings regarding the Brunzell factors presented in Brandee's fee memorandum; awarded $21,000 (less than requested) and deemed that amount reasonable; and expressly addressed the approximately twenty percent income difference between the parties. See Miller, 121 Nev. at 623-24, 119 P.3d at 730; Wright, 114 Nev. at 1370, 970 P.2d at 1073. The court concluded that the award and the conclusion that James was in a superior financial position were supported by substantial evidence and that the district court did not abuse its discretion. See Logan v. Abe, 131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015). On the harmless-error point, the court observed that the district court did not make specific findings that an award under NRS 18.010(2)(b) was warranted. But because Brandee also sought fees under NRS 125C.250 and substantial evidence supported the award under that statute, the court held — assuming without deciding that the district court erred by failing to make specific findings under NRS 18.010(2)(b) — that James failed to meet his burden to demonstrate any such error was prejudicial and not harmless. See Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010). The court declined to consider James' argument that the district court failed to consider whether the fee award was necessary to ensure equal access to justice, finding it was not supported by cogent argument. See Edwards v. Emperor's Garden Restaurant, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006).

In plain language

James Pelz and Brandee Perea share one minor child. James went to court seeking primary physical custody, joint legal custody, and permission to homeschool the child. He later asked the court for permission to move with the child to New York. Brandee opposed his requests and filed her own counterclaim asking for sole or primary physical custody, joint legal custody, and child support. She argued that James' plan to relocate to New York was impulsive and not in the child's best interest. After an evidentiary hearing (a hearing where the judge hears testimony and reviews evidence), the district court denied James' request to relocate and gave Brandee primary physical custody. The court noted that James had long absences from the child's life and an unstable living situation. The court also ordered James to pay monthly child support. Brandee then asked the court to make James pay her attorney fees and costs from the custody case. She pointed to two Nevada statutes, gave information about the parties' incomes (noting that James earned more than she did), addressed the factors Nevada courts use to evaluate the reasonableness of fees, and submitted her billing records. After a hearing, the district court awarded Brandee $21,000 in attorney fees — less than the roughly $27,441 she had requested. James appealed that fee award. He argued the income gap between him and Brandee was small, that the award was too large, and that the court did not make detailed enough findings about the parties' financial needs, the reasonableness of the fees, or whether the parties' conduct justified a fee award. The Court of Appeals affirmed. It explained that it reviews attorney fee awards for "abuse of discretion" — meaning the appeals court will not overturn the decision unless it is not supported by substantial evidence or rests on a legal error. The court found that the district court had reviewed the relevant factors, made findings about the reasonableness of the fees, and specifically addressed the roughly twenty percent difference in income between James and Brandee. Because the district court considered the required factors and substantial evidence supported its conclusion that James was in a better financial position, the appeals court held there was no abuse of discretion. The appeals court also noted that one of the two statutes Brandee cited (which allows fees when a claim is brought without reasonable grounds or to harass the other party) was not supported by specific findings from the district court. But because the fee award was fully supported under the other statute that governs fees in child custody cases, the court concluded that even if the district court made a mistake on that point, James did not show that the mistake harmed him or changed the outcome. The judgment was affirmed.