SALAZAR VS. LANDA

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the alimony determination for abuse of discretion (Kogod v. Cioffi-Kogod, 135 Nev. 64, 66, 439 P.3d 397, 400 (2019)) and will not reverse where findings are supported by substantial evidence (Kelly v. Kelly, 86 Nev. 301, 307, 468 P.2d 359, 363 (1970)), defined as "that which a sensible person may accept as adequate to sustain a judgment" (Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004)). The court reiterated that it will not reweigh witness credibility or the weight of evidence on appeal (Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007); Quintero v. McDonald, 116 Nev. 1181, 1188, 14 P.3d 522, 523 (2000)). On alimony, the court applied NRS 125.150(1)(a), requiring a "just and equitable" award, and the factors of NRS 125.150(9)(d)-(i), including duration of marriage, income and earning capacity, standard of living, pre-marriage career, specialized training, and contribution as homemaker. The court invoked Kogod, 135 Nev. at 71, 439 P.3d at 404, for the proposition that alimony may compensate a spouse for non-monetary contributions and economic losses from early termination of the marriage. It relied on Rodriguez v. Rodriguez, 116 Nev. 993, 998-99, 13 P.3d 415, 418-19 (2000), to hold that marital fault or misconduct is not a permissible consideration. The court found the district court had evaluated each NRS 125.150(9) factor, found a 19-year marriage under NRS 125.150(9)(d), and found Agustina primarily a homemaker. It rejected Jose's cohabitation argument (cohabitation not being a required factor) and his fault-based argument regarding Agustina residing with another man. On income calculation, the court deferred to the district court's factual findings under Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009), citing the 2018 IRS Schedule C (Form 1040) in the record, and relied on Rogers v. Rogers, Docket No. 76173-COA, No. 76758-COA (Ct. App., March 26, 2020), for the rule that testimony is a permissible basis for determining income. On child support, the court held that under NAC 425.025(1)(m) alimony is considered income for purposes of determining a parent's gross income when calculating child support. Because the district court used only Agustina's $800 monthly income and omitted the $600 in monthly alimony, the court held the district court abused its discretion and directed recalculation of child support on gross monthly income that must include alimony. On property division, the court reviewed for abuse of discretion (Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010)). Community property is property owned in common by a husband and wife with each having an undivided one-half interest (McNabney v. McNabney, 105 Nev. 652, 659, 782 P.2d 1291, 1295 (1989)). Under NRS 125.150(1)(b), the district court must make, as close as possible, an equal distribution of community property, though it may make an unequal distribution supported by a compelling written reason. Separate property under NRS 123.130 is all property owned before marriage. Where community funds are used to make payments on separate property, the community is entitled to a pro tanto interest in the ratio community payments bear to separate-fund payments (Robison v. Robison, 100 Nev. 668, 670, 691 P.2d 451, 453 (1984)), and community funds include income earned by either spouse. Under Malmquist v. Malmquist, 106 Nev. 231, 239-40, 240 n.1, 792 P.2d 372, 377-78, 378 n.1 (1990), the community is also entitled to appreciation attributable to community efforts. Because the parties did not dispute that Jose owned the Ardmore property before marriage, the court held the district court abused its discretion by awarding it to Agustina as her sole and separate property without considering Jose's separate interest, and directed the district court on remand to calculate both parties' separate interests and the community interests and award equitable shares (citing Lin v. Lin, No. 77351-COA, 2020 WL 1538967 (Nev. Ct. App. Mar. 30, 2020); Gafforini v. Gafforini, No. 79436-COA, 2020 WL 4249678 (Nev. Ct. App. July 23, 2020)). The court also noted that Agustina's requests for utility payments and attorney fees were not properly before it because she did not file a cross-appeal (Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994)).

In plain language

Jose Salazar and Agustina Cervantes Landa married in Las Vegas in March 2001. Before the marriage, in 1999, Jose bought a house on Ardmore Street (the "Ardmore property"). A few months into the marriage, Agustina was deported to Mexico, where she lived for about eleven years while Jose visited roughly once a year. The couple had three children during that time. In 2012, Agustina returned to Las Vegas and the couple lived together again in the Ardmore property. In 2014 they bought a second house on Panocha Street (the "Panocha property") and moved there, renting out the Ardmore house. In 2019, Jose filed for divorce. After a trial, the district court gave Jose primary physical custody of the children, ordered Agustina to pay him $144 per month in child support, and ordered Jose to pay Agustina $600 per month in alimony for ten years. It gave the Panocha property to Jose and the Ardmore property to Agustina, each as their own separate property, and ordered Jose to pay Agustina $60,000 to make the values of the two houses come out roughly even. Jose asked the court to reconsider. The district court kept the alimony award but corrected a math error, lowering the equity payment Jose owed Agustina from $60,000 to $38,999.50. It also required Agustina to take financial responsibility for the Ardmore property by refinancing the mortgage into her own name within 120 days or selling the house; if she did neither, Jose could sell it. Meanwhile, Jose had to keep making the Ardmore mortgage payments until the house was refinanced or sold, and in exchange he got monthly credits against both his alimony obligation and the equity payment he owed. On appeal, the Court of Appeals agreed with Jose on some points and disagreed on others. First, it upheld the alimony award. The court explained that the district court had walked through the required legal factors and made detailed findings, and that arguments about Agustina living with another man amounted to arguments about marital fault, which courts are not allowed to consider when setting alimony. The court also rejected Jose's complaints about how income was calculated, noting that tax records in the file supported the figure for his income and that a spouse's testimony is an acceptable basis for determining income. Second, the court agreed with Jose that the district court made a mistake in calculating Agustina's child support. Under the applicable regulation, alimony a person receives counts as income when calculating that person's child support obligation. Because the district court used only Agustina's $800 monthly income and left out the $600 in alimony she receives, the calculation was wrong and must be redone on remand. Third, the court agreed with Jose about the Ardmore house. Because Jose owned that house before the marriage, it started out as his separate property. The court explained that when community funds (money earned during the marriage) are used to pay a mortgage on separate property, the marital community earns a proportional share of the property, and it may also be entitled to a share of any increase in the home's value attributable to community efforts. The district court gave the whole Ardmore house to Agustina as her separate property without accounting for Jose's separate interest, so that award was reversed. On remand, the district court must calculate the parties' separate interests and the community's interest and divide the property equitably.