SASSLER VS. SASSLER

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the district court's alimony and property rulings for abuse of discretion, noting that decisions in divorce proceedings will not be disturbed if supported by substantial evidence — "that which a sensible person may accept as adequate to sustain a judgment" — and that the appellate court is not at liberty to reweigh evidence or credibility determinations. Davitian-Kostanian v. Kostanian, 139 Nev., Adv. Op. 27, 534 P.3d 700, 705 (2023); Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007); Quintero v. McDonald, 116 Nev. 1181, 1183, 14 P.3d 522, 523 (2000). On modification of alimony, the court applied NRS 125.150(8), which permits modification of periodic alimony upon a finding of changed circumstances, and noted the district court may analyze any relevant factors, including changes to the paying spouse's income. Davitian-Kostanian, 534 P.3d at 705. Documentary evidence of Alan's substantially increased post-decree income supported the modification. The court further observed that the district court applied an adverse inference regarding evidence Alan withheld in concluding he had not shown inability to pay, and that Alan did not challenge that adverse-inference ruling on appeal, thereby waiving it. Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011). On conversion to a lump sum, the court relied on NRS 125.150(1)(a) (permitting alimony "in a specified principal sum or as specified periodic payments, as appears just and equitable") and on Klabacka v. Nelson, 133 Nev. 164, 179, 394 P.3d 940, 952 (2017) (citing Sargeant v. Sargeant, 88 Nev. 223, 228, 495 P.2d 618, 622 (1972)), for the rule that a lump sum may be awarded when a party's conduct indicates the party may attempt to avoid paying monthly alimony. The record supported findings that Alan refused to disclose income information, failed to make portions of previously ordered payments, and repeatedly failed to comply with court orders. A dispositive record deficiency reinforced the affirmance. Although Alan filed a transcript request in the district court, the transcript of the evidentiary hearing was not in the record, and he failed to provide it to the appellate court despite a supreme court notice citing NRAP 9(b)(1)(B). Under Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007), the court presumed the missing transcript supported the district court's decisions and found it could not meaningfully review Alan's evidentiary challenges. On the IRS tax credits, the court reviewed for abuse of discretion under Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004), and Schwartz v. Schwartz, 126 Nev. 87, 90, 225 P.3d 1273, 1275 (2010), and recognized the district court's inherent authority to interpret and enforce its decrees, Byrd v. Byrd, 137 Nev. 587, 590, 501 P.3d 458, 462 (Ct. App. 2021); NRS 125.240. The decree had directed the parties to obtain the credits' value from the IRS, with Julie entitled to one-half. Because Alan failed to disclose 2019 return information establishing value, the court relied on his 2018 return reflecting a $67,557 credit and awarded Julie $33,778.50. The appellate court declined to second-guess this factual resolution. Ellis, 123 Nev. at 152, 161 P.3d at 244. On the EDCR 5.706 issue, the court cited Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 483 (Ct. App. 2023), for the principle that a district court may adopt a party's proposed order provided the opposing party is apprised and given an opportunity to respond, and EDCR 5.706(a)(1). It held that to the extent the district court adopted Julie's proposed orders without first apprising Alan and giving him an opportunity to respond, that constituted error, but the error was harmless because it did not affect Alan's substantial rights and he did not establish that "a different result might reasonably have been reached." Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010); cf. NRCP 61. In a footnote, the court noted that any challenge to the post-judgment order awarding Julie attorney fees was not properly before it, because such an order is independently appealable as a special order after final judgment, NRAP 3A(b)(8); Smith v. Crown Fin. Servs., 111 Nev. 277, 280 n.2, 890 P.2d 769, 771 n.2 (1995), it was entered after Alan initiated the appeal, and Alan did not file a notice of appeal from it.

In plain language

Alan and Julie divorced in 2019. As part of the divorce, the court divided their property, awarded Julie alimony (spousal support), and made findings about a surplus of tax credits the IRS was holding that belonged to the couple. The alimony award started at $2,500 per month for seven years, then dropped to $1 per month for ten more years. The court also ordered Alan to give Julie yearly information about all of his sources of income. Later, Julie went back to court, saying Alan had not given her the income information he was ordered to provide, had not divided the tax credits, and had failed to make his alimony payments. During the fact-gathering (discovery) part of the case, documents surfaced showing Alan's income had grown substantially — a loan application listing monthly income over $20,000, and a 2021 tax form showing more than $254,000 in self-employment income plus another $115,662 in a separate category. Julie also produced Alan's 2018 tax return, which showed the IRS held a tax credit of $67,557, meaning her half would be $33,778.50. The court repeatedly ordered Alan to produce his recent tax returns, but he did not. Because he refused to disclose this information, the court granted Julie's request for sanctions: it barred Alan from using evidence at the upcoming hearing that he had not turned over, and said it would draw an "adverse inference" (an assumption against him) about the information he withheld. The court also warned Alan that he was required to appear at the hearing. At the June 23, 2023 hearing, Julie testified, but Alan did not show up. Because Alan failed to produce his tax returns for 2019 through 2022, the court found he had not met his burden to show he could not afford to pay alimony. The court raised his alimony to $3,500 per month for the remaining 161 months. Then, pointing to Alan's repeated failures to follow orders and to pay, the court decided to convert those monthly payments into a single lump sum of $563,000, reasoning this was necessary to make sure Julie actually received her support. The court also awarded Julie her $33,778.50 share of the tax credits, found Alan owed $30,500 in back alimony, and held him in contempt. On appeal, Alan argued the court went too far and essentially rewrote the divorce decree, that it should not have believed Julie's testimony, and that the alimony would extend into his retirement years and be more than he could afford. He also argued there were actually zero tax credits left, and that the court broke a local rule by adopting Julie's proposed orders without letting him review them first. The Court of Appeals affirmed. A central reason: Alan never provided the appeals court with a transcript of the evidentiary hearing, even though he was told he needed to. Without the transcript, the court explained, it had to presume the missing record supported the district court's decisions, and it could not meaningfully review his challenges to the factual findings. The court also emphasized that it does not re-weigh evidence or second-guess a trial court's decisions about which witnesses to believe. On the local-rule issue, the court agreed that if the district court adopted Julie's proposed orders without giving Alan a chance to respond, that was error — but it found the error harmless because Alan had not shown that a different result would have been reached without it.