ROBERSON VS. ROBERSON C/W 87925

Statutes cited

Key holdings

Practitioner summary

**Standard of review.** The court reviews awards of attorney fees for abuse of discretion. Chowdhry v. NLVH, Inc., 109 Nev. 478, 485, 851 P.2d 459, 464 (1993). A district court abuses its discretion when its findings are not supported by substantial evidence. Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). Awards of pendente lite attorney fees are likewise reviewed for abuse of discretion. **Framework - NRS 125.040 pendente lite fees.** Under NRS 125.040(1)(c), "[i]n any suit for divorce the court may . . . require either party to pay moneys necessary . . . [t]o enable the other party to carry on or defend such suit." The court must consider the financial situation of each party before making such an order. NRS 125.040(2). However, "a party need not show necessitous circumstances in order to receive an award of attorney fees under NRS 125.040." Griffith v. Gonzales-Alpizar, 132 Nev. 392, 395, 373 P.3d 86, 89 (2016). Fees under NRS 125.040(1)(c) are "pendente lite" because they cover fees in an ongoing divorce suit, Levinson v. Levinson, 74 Nev. 160, 161, 325 P.2d 771, 771 (1958), and they contemplate prospective expenses rather than work already performed. **Application - prospective tie.** Conrad argued the $25,000 award was not sufficiently tied to prospective appellate work because briefing was complete by the time the district court held its hearing. Relying on Levinson, the court explained that consideration of a pendente lite fee award is evaluated from the time the motion seeking such fees is filed; a later request for an additional allowance is treated as a renewal of the original motion, reviewing the preliminary order in light of circumstances existing at the time of review. Levinson, 74 Nev. at 163, 325 P.2d at 772. Because Heidi moved for fees after Conrad initiated the appeal (Docket No. 85635-COA) and before briefing was filed, the appeal was pending when the motion was filed, and the district court's order specified the $25,000 was "to pay for the costs of participating in the appeal filed by Defendant." See Griffith, 132 Nev. at 395, 373 P.3d at 88. The award was therefore properly tied to prospective appellate work. **Application - financial circumstances.** The court rejected Conrad's contention that the district court's financial findings were insufficient. The district court found Heidi earns "$50,000 a year along with court-ordered child support and alimony," while Conrad earns approximately $500,000 a year, that no other evidence was provided regarding Conrad's income, and that no objection disputed the amount. The order reflected that Conrad continued his medical practices and opened new businesses since trial, while Heidi was the primary caregiver, and that the court recognized Conrad's alimony and child-support payments yet still found a significant income disparity. The court held the district court sufficiently considered the parties' financial circumstances under NRS 125.040. See Martin v. Martin, 138 Nev. 786, 796, 520 P.3d 813, 821 (2022). Both the decision to award fees and the amount were within the district court's discretion. Griffith, 132 Nev. at 395, 373 P.3d at 89. **Framework and application - NRS 18.010(2)(b) fees.** Under NRS 18.010(2)(b), a district court may award attorney fees to a "prevailing party" when "the court finds that the claim . . . of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party." The statute is to be liberally construed in favor of awarding fees "in all appropriate situations to punish for and deter frivolous or vexatious claims and defenses." There must be evidence supporting the proposition that a claim was brought or maintained without reasonable grounds. Chowdhry, 109 Nev. at 486, 851 P.2d at 464. "For purposes of NRS 18.010(2)(b), a claim is frivolous or groundless if there is no credible evidence to support it." Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009). The district court found Heidi the prevailing party on Conrad's motion to alter or amend, that Conrad brought the motion despite a lack of supporting evidence, that he "engaged in self-help, continues to play litigation games, and unnecessary[ily] continues to inflict cost, stress and drama into this case," and that his conduct reflected bad faith. See Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993). Finding these conclusions supported by substantial evidence, the court found no abuse of discretion. See Bergmann v. Boyce, 109 Nev. 670, 675, 856 P.2d 560, 563 (1993), superseded by statute on other grounds as recognized in In re DISH Network Derivative Litig., 133 Nev. 438, 451 n.6, 401 P.3d 1081, 1093 n.6 (2017). **Sanctions.** The court denied Heidi's request for NRAP 38 sanctions.

In plain language

Conrad and Heidi Roberson were married, had two children, and divorced in 2018-2021 after extensive litigation. After their divorce was finalized by a stipulated decree in October 2021, Conrad asked the trial court to change the decree and the child-custody arrangement. The trial court said no, and Conrad appealed that decision. While that earlier appeal was still going on, Heidi went back to the trial court and asked it to order Conrad to pay $25,000 to help cover her lawyer costs in fighting the appeal. (This kind of payment is called "pendente lite" attorney fees - fees a court orders during an ongoing case so one party can carry on or defend the suit.) Heidi explained that Conrad was behind on what he owed under the decree, and her lawyer noted that the appeal had been removed from the settlement program, with a briefing schedule already set. The trial court agreed and ordered Conrad to pay the $25,000, pointing to a large gap in the parties' incomes: Heidi earns about "$50,000 a year along with court-ordered child support and alimony," while Conrad earns approximately $500,000 a year. Conrad then filed a motion asking the court to reconsider (a "motion to alter or amend") and to pause the order. He argued that the court did not properly weigh his finances - including the alimony and child support he already pays Heidi - and that the fee award was not actually connected to the future appellate work that still needed to be done. The trial court rejected those arguments. It also found that Conrad had acted in bad faith by refusing to pay and continuing what it described as litigation games, and on that basis awarded Heidi an additional $10,975.32 in attorney fees under a separate statute that allows fees against a party who brings claims without reasonable grounds or to harass. Conrad appealed both fee awards. On appeal, the Court of Appeals of Nevada affirmed - meaning it upheld the trial court's decisions. The court explained that because Heidi asked for the fees while the appeal was still pending and before briefing was filed, the award was properly tied to future appellate work. It also concluded the trial court had adequately considered both parties' financial circumstances, including the income gap and Conrad's existing payments. As for the additional fee award, the court found there was enough evidence in the record to support the trial court's conclusion that Conrad's reconsideration motion lacked reasonable grounds and was brought in bad faith. The court also denied Heidi's request for sanctions on appeal.