SCHRICKER VS. SCHRICKER

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals addressed a series of assignments of error under differing standards of review. **Jurisdiction.** Reviewing subject matter jurisdiction de novo (Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009)), the court held that the category of the case regarding the Almanor property was disposition of community property under NRS 125.150(1)(b), which confers subject matter jurisdiction (citing, cf., Senjab v. Alhulaibi, 137 Nev. 632, 634, 497 P.3d 618, 619 (2021)). To the extent Donald framed his argument as in rem/personal jurisdiction, the court held it waived under NRCP 12(b)(2) and NRCP 12(h)(1) because it was not raised in the pleadings, an early motion, or on appeal (citing Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981)). **Necessary party (Rule 19).** Although raised for the first time on appeal (permitted under Rose, LLC v. Treasure Island, LLC, 135 Nev. 145, 152, 445 P.3d 860, 866 (Ct. App. 2019)), the court reviewed for abuse of discretion, with underlying legal questions de novo (Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934, 943 (9th Cir. 2022)). The court held the Whittenburgs were not necessary parties because their ownership interest was not at issue - only the Schrickers' interest was being divided - and there was no concealment, as the Whittenburgs knew of the litigation and Lorri provided deposition testimony (distinguishing the necessary-party authorities Schwob v. Hemsath, 98 Nev. 293, 646 P.2d 1212 (1982); Paso Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967); Robinson v. Kind, 23 Nev. 330, 47 P. 1 (1896)). The court noted potential parties may intervene under NRCP 24, NRS 12.130, and NRS 65.030 (citing State ex rel. Moore v. Fourth Jud. Dist. Ct., 77 Nev. 357, 363, 364 P.2d 1073, 1077 (1961); Las Vegas Police Protective Ass'n v. Eighth Jud. Dist. Ct., 138 Nev. 632, 636, 515 P.3d 842, 847 (2022)). **Characterization of the Almanor property.** Characterization is upheld if supported by substantial evidence (Lopez v. Lopez, 139 Nev., Adv. Op. 54, 541 P.3d 117, 125-26 (Ct. App. 2023)). Applying NRS 123.130, NAC 375.128, and Sprenger v. Sprenger, 110 Nev. 855, 858, 878 P.2d 284, 286 (1994), the court observed the evidence suggested the property was separate property held in equal shares under a partnership agreement. However, it held any error was harmless under NRCP 61 because the partnership agreement gave the parties equal interests and the district court had authority to order a buyout regardless of characterization (McCall v. McCall, 70 Nev. 287, 289, 266 P.2d 1016, 1017 (1954)). It further held any error was invited, as Donald repeatedly requested the buyout relief (Eivazi v. Eivazi, 139 Nev., Adv. Op. 44, 537 P.3d 476, 494 (Ct. App. 2023)). **Valuation of the Almanor property.** Reviewed for abuse of discretion (Shydler v. Shydler, 114 Nev. 192, 196, 954 P.2d 37, 39; Forrest v. Forrest, 99 Nev. 602, 606, 668 P.2d 275, 278 (1983)). A valuation method is not an abuse of discretion "so long as the value placed on the property falls within a range of possible values demonstrated by competent evidence" (Alba v. Alba, 111 Nev. 426, 427, 892 P.2d 574, 574-75 (1995)). Donald's income-capitalization argument (see Canyon Villas Apartments Corp. v. State, 124 Nev. 838, 848, 192 P.3d 746, 753-54 (2008)) was waived as newly raised (Old Aztec Mine, 97 Nev. at 52, 623 P.2d at 983), and his comparator argument was not cogently argued (Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)). The parties had stipulated to valuation by brief, and the court found no abuse of discretion (Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014)). **Deed of trust.** Reviewed for abuse of discretion, affirmed if supported by substantial evidence (Shydler, 114 Nev. at 196, 954 P.2d at 39). Applying Facklam v. HSBC Bank USA, 133 Nev. 497, 499, 401 P.3d 1068, 1070 (2017), and Edelstein v. Bank of N.Y. Mellon, 128 Nev. 505, 520, 286 P.3d 249, 259 (2012), the court held the absence of a promissory note was not dispositive because Cheryl presented the deed only as evidence of an existing debt, not to foreclose (see also Johnson v. Steel, Inc., 94 Nev. 483, 485-86, 581 P.2d 860, 861-62 (1978)). Deferring to the district court's credibility determinations (Ellis v. Carucci, 123 Nev. 145, 152, 161 P.3d 239, 244 (2007)), the court held substantial evidence supported the $119,000 debt finding because the deed was never canceled or rescinded. **Preclusion/discovery sanction order.** A district court "enjoys broad discretion in imposing discovery sanctions" (Blanco v. Blanco, 129 Nev. 723, 729, 311 P.3d 1170, 1174 (2013)). The court declined to apply the heightened Young standard (Young v. Johnny Ribeiro Building, Inc., 106 Nev. 88, 92-93, 787 P.2d 777, 779-80 (1990)) because the sanction did not result in dismissal with prejudice; the trial lasted six days and Donald litigated on the merits. Under NRCP 37(b)(1) and NRCP 37, the sanction was supported by the record given Donald's noncompliance, and Donald did not cogently argue what excluded evidence would have altered the outcome (Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38). **Characterization of the Tapadero property (cross-appeal).** Upheld if based on substantial evidence (Waldman v. Maini, 124 Nev. 1121, 1128, 195 P.3d 850, 855 (2008)). Under NRS 123.220, property acquired after marriage is community property, and a spouse claiming separate property must prove it by clear and convincing evidence (Draskovich v. Draskovich, 140 Nev., Adv. Op. 17, 545 P.3d 96, 99 (2024)). Tenancy-in-common title during marriage is compatible with community property (Peters v. Peters, 92 Nev. 687, 690, 557 P.2d 713, 715 (1976)). Although inheritance is separate property (NRS 123.130), it may be gifted to the community (Schmanski v. Schmanski, 115 Nev. 247, 249, 984 P.2d 752, 754 (1999)), and a gift is presumed when a spouse consciously uses separate property to pay community expenses (Cord v. Cord, 98 Nev. 210, 214, 641 P.2d 1026, 1029 (1982)). Deferring to the district court's determination of whether evidence was clear and convincing (Todkill v. Todkill, 88 Nev. 231, 236, 495 P.2d 629, 632 (1972)), the court found no abuse of discretion. **Breach of fiduciary duty and fraud (cross-appeal).** Legal conclusions reviewed de novo; factual determinations upheld if supported by substantial evidence (Iliescu v. Steppan, 133 Nev. 182, 185, 394 P.3d 930, 933 (2017)). NRS 645.252 imposes disclosure duties on real estate agents, and NRS 645.252(1)(d) requires written consent when acting for multiple parties, enforceable under NRS 645.257(1). A fiduciary's failure to disclose can constitute constructive fraud (Golden Nugget, Inc. v. Ham, 95 Nev. 45, 48, 589 P.2d 173, 175 (1979)). The court held the duties under NRS 645.252(1)(d)(2) apply only to agents representing parties with adverse interests, and the district court found the parties lacked adverse interests at the time of purchase. Although spouses owe each other a fiduciary duty (Williams v. Waldman, 108 Nev. 466, 472, 836 P.2d 614, 618 (1992)), Cheryl failed to establish adverse interests or fraud with substantial evidence, and mere ignorance of contract terms does not establish fraud (Gage v. Phillips, 21 Nev. 150, 153, 26 P. 60, 61-62 (1891)). On the requests for admission, establishing fraud is ordinarily a question of fact (Epperson v. Roloff, 102 Nev. 206, 211, 719 P.2d 799, 802 (1986)), but applying the law to admitted facts is the district court's role (Fed. Ins. Co. v. Coast Converters, Inc., 130 Nev. 960, 967-68, 339 P.3d 1281, 1286 (2014); Roe v. Roe, 139 Nev., Adv. Op. 21, 535 P.3d 274, 285 (Ct. App. 2023)). **Valuation of the Tapadero property.** Factual findings upheld if supported by substantial evidence, but set aside if clearly erroneous (Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004); Roe, 139 Nev., Adv. Op. 21, 535 P.3d at 285-86; Unionamerica Mortg. & Equity Tr. v. McDonald, 97 Nev. 210, 211-12, 626 P.2d 1272, 1273 (1981) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). The decree valued the property at $407,000, but the transcript showed both parties agreed on $704,000, and no evidence supported $407,000 (Real Est. Div. v. Jones, 98 Nev. 260, 264, 645 P.2d 1371, 1373 (1982)). Concluding the $407,000 figure appeared to be a clerical error (see NRCP 60(a)), the court reversed and remanded to correct the valuation and update the equalization payment. **Attorney fees.** An award of attorney fees in divorce is discretionary (NRS 125.150(4); Blanco, 129 Nev. at 732, 311 P.3d at 1176), and a court may order payment from separate property (Culculoglu v. Culculoglu, No. 67781, 2016 WL 3185998, at *1 (Nev. June 6, 2016) (Order of Affirmance)). Because Donald did not object at the case management conference and waited until his motion to alter or amend, he did not preserve the claim (Rives v. Farris, 138 Nev. 138, 142, 506 P.3d 1064, 1068 (2022)). Cheryl's argument about tax and penalty amounts was not supported by relevant authority (Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38).

In plain language

This case involves a divorce between Donald and Cheryl Schricker, a couple who dated beginning in 1998, bought and shared property over many years, and married in 2005 before Cheryl filed for divorce in 2019. Their dispute centered on several pieces of real estate and money. The first property was a lakefront property at Lake Almanor in northern California, which the couple bought in 1998 before marrying, and later shared ownership of with friends (the Whittenburgs) through a partnership. The couple's interest in this property became a major point of contention. The district court ordered Donald to buy out Cheryl's share. The second property was a home on Tapadero Trail in Reno, bought in 2010 for $350,000 using money Cheryl inherited from her father. Cheryl said she wanted this to be her own separate property, but Donald's name ended up on the deed. She claimed he added his name secretly; he said she watched the documents being signed. The district court found this home was community property (property belonging to both spouses) rather than Cheryl's separate property. There was also a deed of trust - a document that puts a lien on property to secure a debt - on a separate property Donald owned in Reno, naming Cheryl as beneficiary for $119,000. Cheryl testified she did not know about it until after she filed for divorce and never had a promissory note (the document that normally records the actual loan). Donald said he never borrowed money from her. The district court still found Donald owed Cheryl $119,000 based on the deed of trust because it had never been canceled. During the litigation, Donald did not fully respond to Cheryl's discovery requests and did not file certain tax returns as ordered. As a result, the district court imposed sanctions: he could not present documents he had not disclosed, certain requests for admission were treated as admitted, and the court could draw negative inferences from questions he did not answer. On appeal, the Court of Appeals largely upheld the district court. It held the Nevada court had authority to decide the case, that the Whittenburgs did not have to be added as parties, and that the district court did not abuse its discretion in valuing the Almanor property or in imposing discovery sanctions. It rejected Cheryl's arguments that the Tapadero home should have been her separate property and that Donald committed fraud or breached a fiduciary duty. The one point on which the appellate court reversed involved the value of the Tapadero property. The written decree valued it at $407,000, but the trial transcript showed both parties actually agreed on $704,000. The court concluded the $407,000 figure was not supported by the evidence and appeared to be a clerical error, so it sent the case back to correct the valuation and update the related payment.