Volume 24, Issue 3 Fall 2011 Nev. Fam. L. Rep., Vol. 1, No. 3, Winter 1987, at 5.

AWARDING THE FAMILY BUSINESS

TO THE WIFE By Ronald J. Logar, Esq.

In Kozen, the parties owned two Burger King fran- chises in southern California – one “highly profitable” in Hollywood and another, newer operation in Burbank, owned with a partner. The husband had been solely responsible for their management. Wife, during the 13- year marriage, had been a homemaker and mother to their children. The Hollywood Burger King was valued at $1,187,000, and their residence at $700,000. Wife decided to become the Burger Queen of Holly- wood by requesting that the larger and more profitable Hollywood franchise be set aside to her. A representative

(cont’d. inside on page 3) This article originally appeared in the Winter 1987 NFLR IN THIS ISSUE:

It is difficult to convince the trial court to set aside AWARDING THE FAMILY BUSINESS TO THE WIFE the family business to the wife. The reasons for denying Page 1 such relief are persuasive: the husband has been the oper- EDITOR’S NOTES ating spouse, with wife having little if any participation Page 2 in its operation; where the husband has the special skill THE EVOLVING CONCEPT OF MARRIAGE and training, the wife does not have experience in the Page 5 field. Simply, the operating spouse is favored to continue MESSAGE FROM THE SECTION CHAIR in the sole management of the family business after disso- Page 16 1 lution. “I SPENT THE MONEY ON WHISKEY, WOMEN AND GAMBLING. The presence of other factors, however, may support THE REST, I WASTED.” the wife’s position. A recent case provides certain guide- Page 18 lines to follow, In Re Marriage of Kozen (9/29/86).2 BENCH/BAR MEETING REPORT: SOUTH Page 26 Page 2 NFLR Nevada Family Law Report

Editor: EDITOR’S NOTES Shelly Booth Cooley

By Shelly Booth Cooley, Esq. Family Law Section Executive Council This issue of the NFLR is dedicated to the recipients of the Pillar Award. The Pillar Award was created by the Family Law Section of the Robert Cerceo, Chair Reno State Bar of Nevada in 2009 to honor attorneys who have epitomized the Michael Kattelman, Vice-Chair values and principles of the profession and its role in protecting the family. Las Vegas Recipients of the Pillar Award are recognized for their leadership and Katherine L. Provost, Secretary service in the advancement of Family Law. Since its inception, three attor- Las Vegas neys have been awarded this prestigious Award: Ronald J. Logar was the Jennifer V. Abrams, Treasurer first recipient of the Pillar Award in 2009, Marshal S. Willick received the Las Vegas award in 2010, and Gary R. Silverman was awarded in 2011. In our first feature, by Ronald J. Logar, Mr. Logar provides guidelines Jessica Hanson Anderson, Reno for deciding who should be awarded the family business. Mr. Logar’s arti- Kristine Brewer, Las Vegas cle first appeared in the Winter 1987 issue of the NFLR and the formal Shelly Booth Cooley, Las Vegas Hon. Bryce C. Duckworth, Las Vegas NFLR citation is stated above its title. Our second feature, by Marshal S. Dixie R. Grossman, Reno Willick, outlines the evolution of the concept of marriage in Nevada and John “Jack” Howard, Las Vegas its effect on property and support obligations. Our third feature, by Gary Josef M. Karacsonyi, Las Vegas R. Silverman, defines and discusses “waste” and suggests adopting an Raymond E. Oster, Reno “explicit, forthright rule for addressing waste in family law cases.” Abbrevi- Eric A. Pulver, Reno ated versions of Mr. Willick’s and Mr. Silverman’s articles appeared in the Hon. Chuck Weller, Reno May 2011 Nevada Lawyer (Volume 19, Issue 5), addressing family law is- sues. Design/Production Mr. Logar, Mr. Willick and Mr. Silverman – your leadership, devotion Christina Alberts, State Bar of Nevada and service to the advancement of family law is truly appreciated.

NEVADA FAMILY LAW REPORT is an electronic Specialization Exam: publication of the Family Law Section of the State Bar of Nevada. To subscribe, please send a request to [email protected]. The Family Law Section is offeringa test date on February 25, 2012

The NEVADA FAMILY LAW REPORT is intended (the Saturday prior to the Family Law Conference), rather than Nevada to provide family law-related material and infor- Day 2011. Those people interested in sitting for the exam should apply no mation to the bench and bar with the understanding that neither the State Bar of Nevada, Family Law later than December 31, 2011. Section editorial staff nor the authors intend that its content constitutes legal advice. Services of a law- yer should be obtained if assistance is required. Find the applications at: Opinions expressed are not necessarily those of the https://www.nvbar.org/sites/default/files/Family_Law_Specialization_App_2011.pdf State Bar of Nevada or the editorial staff.

This publication may be cited as Nev. Fam. L. Rep., Find the Standards at: Vol. 24, No. 3, 2011 at ____. https://www.nvbar.org/sites/default/files/FL%20Specialization_Standards.pdf The Nevada Family Law Report is supported by the State Bar of Nevada and its Family Law Section. Advanced Family Law Program CLE:

On December 1, 2011, from 8:45 a.m. - 4:45 p.m., at the Federal Courthouse, located at 333 Las Vegas Boulevard South, Las Vegas, Nevada, the State Bar of Nevada will be offering (cont’d. on page 4) Fall 2011 Page 3 NFLR

Family Business “interfacing” with the franchisor, restaurant managers, cont’d. from page 1 purveyors, equipment manufacturers and the insurance company. of Burger King testified that the franchisor maintained a The Kozen decision provides certain guidelines to be management training program available to all fran- applied where both parties seek the family business. First, chisees, that the wife could satisfactorily complete the if it is the husband who has operated the business, then program, and that the company would accept her as an the wife must provide proof that she possess the neces- owner-franchisee. sary skills to run the business, or that she can learn the Much to husband’s dismay, the trial court awarded skills without substantial impairment of its operation. the Hollywood franchise to wife, awarded the residence An expert witness should be used for this purpose. and Burbank franchise to husband, required wife to Second, show that the income from the business is make an equalizing payment to husband, and ordered necessary to support the wife, children or another legiti- husband to assume the remaining debt on the Holly- mate need. Third, establish that the wife needs to be wood Burger King. self-sufficient without dependence upon the husband. The trial court explained that wife carried the burden (This latter consideration is relevant where the divorce of proving that she could operate the business profitably. has been acrimonious or where husband’s income fluctu- It found that she could learn the business with no prior ates.) experience, much like the husband did when the first Kozen can serve the practitioner well by providing franchise was developed. Further, the court pointed out guidelines for reasonable consideration of the wife’s that wife could support herself and the children from the request for the family business. profits, without relying upon the husband in a dissolu- tion given to acrimony between the two parties. Hus- References band’s motion for reconsideration and a new trial was denied. On appeal, the decision was affirmed – the appel- 1. Goss v. Edwards, 68 CA 3.d 264, 137 CR 252 (1977). late court distinguishing the many cases cited by the 2. California Court of Appeals, 2 Civil B008375 and husband as authority for overruling the trial court, as B009412 (DIV.4) _____ CA 3.d _____, 230 CR 304. being inopposite. 3. 143 Cal. App. 3.d 65, 70-71, 191 Cal. Rptr. 541. In In Re Marriage of Burlini (1983),3 the family busi- 4. 79 Cal. App. 3.d 726, 748-751, 145 Cal. Rptr. 205. ness was a coin laundry operation consisting of washers and dryers located at various apartment complexes. The court denied wife’s request for one-half of the business Ronald J. Logar is certified as a Family Law Specialist by the since only the husband had the skill and experience to State Bar of Nevada. He founded the Family Law Section of the state bar, and served as its president for several years. service the machines, which was necessary to prevent the He is the founder and editor emeritus of the Nevada Family destruction of the business. Law Report. He has been a Fellow of the American Academy Similarly, in In Re Marriage of Smith (1978),4 the of Matrimonial Lawyers since 1981. He lectures on most husband had performed the technical work for the fami- matrimonial issues and has numerous legal articles widely published. He specializes in complex marital estates and ly’s custom sign-making business while the wife multi-state jurisdictional disputes. He has been certified and performed the clerical and bookkeeping duties. Again, trained in all disciplines of alternative dispute resolution. the business was awarded to husband since his technical knowledge and experience were necessary to the business. Mr. Logar can be reached at: Logar Pulver, 1875 Plumas Street, Suite 1, In , the evidence clearly showed that wife could Kozen Reno, Nevada, 89509; do as good a job as the husband at running the business Telephone: (775) 786-5040; even though the husband had formed and developed it. Fascimile: (775) 786-7544; There was no showing that the husband had any special E-mail: [email protected]. training when the franchise was acquired years ago. There was no reason that the wife could not perform the same functions as the husband – and as well – such as Fall 2011 Page 4 NFLR Editor’s Notes Tom Standish – Presenting Property Distributions cont’d. from page 2 at Trial. an Advanced Family Law Program seminar. Bruce I. Supreme Court Justices Kristina Pickering and Shapiro will be the moderator. Nancy Saitta will give an update on Supreme Court Presenters will cover the following topics: Family Law .  Humberto Rodriguez of SOS Litigation Services – Lastly, there will be a Family Court Judges Forum, What you should know about court reporters and where Family Court Judges Bryce Duckworth, Frank the rules their ethical rules; Sullivan, Cynthia Guiliani, Charles Hoskin, Cheryl  Gary Silverman – Litigating Relocation Cases; Moss, Robert Teuton, Cynthia Diane Steele, Mathew  Judge Rob Bare – Ethical Issues From the Bench; Harter, William Potter, William Voy and Vincent  Howard Ecker – Cohabitation Agreements; Ochoa will discuss important issues in the Family Court  James J. Jimmerson – Decree of Divorce versus and answer participant questions. Decree of Separate Maintenance and how to avoid malpractice; Family Law Conference:  Judge Charles Hoskin – Trial Practice in Family Court; The Family Law Conference has been scheduled for  Robert Dickerson, Malpractice Traps When March 1 through 2, 2012, in Ely, Nevada. Preparing and Reviewing Prenuptial Agreement;  Marshal Willick & Ed Kainen – The Great Shelly Booth Cooley is the Principal of The Cooley Law Firm, Debates (Ed and Marshal will debate current trends where she practices exclusively in the area of family law. and issues in Nevada family law); She can be reached at 10161 Park Run Drive, Suite 150, Las Vegas, Nevada 89145; Telephone: (702) 265-4505;  Radford Smith – Evidentiary Issues In Family Facsimile: (702) 645– 9924; E-mail: Court; [email protected].

ARTICLE SUBMISSIONS

Articles are Invited! The Family Law Section is accepting articles for the Nevada Family Law Report. The next release of the NFLR is expected in November, 2011, with a submission deadline of October 15, 2011.

Please contact Shelly Cooley at [email protected] with your proposed articles anytime before the next submission date. We’re targeting articles between 350 words and 1,500 words, but we’re always flexible if the information requires more space.

Fall 2011 Page 5 NFLR THE EVOLVING CONCEPT OF MARRIAGE

By Marshal S. Willick, Esq.

INTRODUCTION: distinctions, “FAMILIES” AND LAW such as recog- nizing oppo- It is no secret that the develop- site-sex couples ment of law tends to lag behind real as a family, life by a period of years to decades. whether or not So it is not surprising that demo- they have chil- graphic shifts have altered what was dren, but same- previously thought of as “marriage” sex relation- and “family,” and what elements are, ships as a fam- and should be, in play in the dissolu- ily when chil- tion of marital and non-marital dren are pre- relationships. sent, but not In modern America, millions of otherwise.3 households consist of unmarried These cohabitants, both with and without changing de- children, and consisting of both mographic real- opposite-sex and same-sex couples. ities and per- Lawyers revealed that nearly half of According to the government, one- ceptions are important, because the them have noted a spike in the third of all children in the United legal concepts of property ownership, number of suits between former States reside with only one biological and of support obligations, derive parent.1 Some sources indicate that from underlying assumptions about cohabitants, and 39 percent noted in Europe, the majority of children what relationships “merit” recogni- an increase in the number of cohabi- grow up in households without two tion of co-ownership of assets ac- tation agreements between live-in natural, married parents. quired, or of possible claims to sup- couples – mostly for opposite-sex The concept of what constitutes a port should the relationship termi- couples. Both the frequency of suits “family unit” appears to be more a nate. If legal tests and remedies do between cohabitants, and the preva- matter of decision than empirical not keep some pace with the reality lence of agreements intended to head fact, and is so fluid that the label is of of living arrangements, family law off such suits, are increasing dramati- very little value as a legal test, runs the risk of becoming a source of cally. especially over time.2 Popular unfairness, rather than a mechanism This article does not purport to conceptions are fickle, and as the gay for achieving equity.4 be a comprehensive cataloging of marriage debate goes on, some All trends point toward an either demographic trends or the law demographers have observed that increase in cohabitant cases. A governing marriage, divorce, cohabi- portions of the population see arbi- February, 2011, survey of the Ameri- trary and logically unsupportable can Academy of Matrimonial (cont’d. on page 6) Fall 2011 Page 6 NFLR Evolution of Marriage cally before the court for distribution law is concerned, is a civil contract, to upon divorce. which the consent of the parties cont’d. from page 5 Whatever timing focus or dis- capable in law of contracting, is tation, property, and support. tributive scheme, family courts have essential.” The early case law opined Rather, it intends to identify some of long been accustomed to having fixed that Nevada’s adoption of a statuto- the paths those disparate matters are measuring points for determining ry, regulated procedure for marriage tracing, with the objective of helping what property could be considered was presumed to be in addition to Nevada lawyers and judges increase belonging to a couple and distrib- the tradition of common-law mar- the likelihood of achieving substan- uting it between them in accordance riage.12 tial justice for individuals in a variety with the relevant state’s rules for In 1943, the Nevada Legislature of relationships who find themselves property distribution upon dissolu- did away with common-law marriage, engaged with the legal system. tion. adding a sentence to the definition of marriage that had existed since the CLASSICAL NOTIONS AND The Nevada Law of Marriage and Putative original Territorial Statutes: RAMIFICATIONS OF Marriage “Consent alone will not constitute

MARRIAGE marriage; it must be followed by In Nevada, the critical elements solemnization as authorized and of a common-law marriage were: Marital or Community Property provided by this chapter.”13 1) “Present assent, between Measuring Periods Generally But existing common-law marriages parties capable of contract- remained valid; the new provision 5 Common law marriage was ing marriage;” applied only to marriages contracted widespread from Colonial times 2) Followed by “subsequent after the date of enactment. through the 19 century, when state cohabitation as husband In the 1948 Wolford case,14 the regulations more consistently re- husband alleged that he was still mar- quired a license from the state and and wife;” and 3) “And the holding out to the ried to another at the time he entered some ceremonial proceeding before a into the marriage ceremony with the marriage was recognized under law. world of each other as 10 wife, although at that time he In previous years, it was relatively such.” thought his earlier wife was dead. He simple, in most places, to determine As discussed below, some of these requested an annulment and half of whether property was accrued by a elements have rather sloppily leaked the property. The district court single person or a couple. The period into evaluation of cohabitation cases, granted the annulment and divided of joint acquisition started with a causing much unnecessary confusion. the property in half. The Supreme marriage, either common-law or cere- Nevada’s first statutes were Court affirmed. monial, and depending on the law of passed in 1861, styled the “Laws of By the time of Williams15 nearly the jurisdiction, ended upon final the Territory of Nevada.” They were 60 years later, everyone had forgotten 6 separation, filing and service of a passed at the first regular session of about Wolford, and neither party 7 complaint for divorce, or a divorce the territorial legislative assembly, cited the earlier opinion, leading the 8 trial or decree. which convened from October 1 to Nevada Supreme Court to incorrect- In a minority of places, marriage November 29, 1861, in Carson City, ly believe it was dealing with “an issue was considered more transformative and laid the groundwork for a body of first impression.” Williams was, as to property. Giving literal mean- of laws to be enacted upon entry into however, the first Nevada case to ing to the words “with all my worldly the Union. explicitly recognize the “putative goods I thee endow,” the “hotchpot” That first legislative set fell into spouse doctrine” by name in an an- 9 jurisdictions placed all property of line completely with the conceptual- nulment case – the kind of case in both spouses, whether accrued before ization of marriage as determined by which parties live together as man or during marriage, at least theoreti- the mid-19th century, and declared: “That marriage, so far as its validity in (cont’d. on page 7) Fall 2011 Page 7 NFLR Evolution of Marriage during the pendency of an action, of the award upon a showing of a cont’d. from page 6 which terminate upon entry of a change of circumstances. final decree.18 Judicial determination of all cate- and wife, often for many years, and  Temporary spousal support – a gories of alimony are so subjective only discover when one of them files specified post-divorce award in- and discretionary that the subject has for a divorce that there was a legal tended to terminate at a specified been described as “the last great crap- impediment to their marriage in the future time or upon a specified shoot in family law.”24 While the first place. future event.19 judiciary has criticized the legislature While stating what kind of a case  Permanent alimony – a speci- for not providing any objective crite- Williams was not, Justice Nancy fied post-divorce award intended ria for alimony,25 it also has not Becker stated that recognition of the to continue indefinitely, unless provided such guidance, but only putative spouse doctrine would not modified by later court order reiterated “factors” to be interfere with public policy support- (usually upon “changed circum- “considered” – which were in turn ing lawful marriage, after which she stances” of some sort).20 rather uselessly adopted as statutory added the unfortunate dicta: “Nor  Rehabilitative alimony – a spec- criteria.26 does the doctrine conflict with ified post-divorce award for the For purposes of this examination, Nevada’s policy in refusing to recog- purpose of obtaining training or however, the point is that Nevada has nize common-law marriages or education relating to a job, career never recognized a right to compel palimony suits.” This was not a hold- or profession.21 payment of support from one person ing, but it is problematic, because  Lump-sum alimony, which to another except within the context while there is a statutory statement presumably requires a set aside of of a marital relationship. In Wil- of public policy in NRS 122.010 one spouse’s separate property to liams, the court provided one prohibiting formation of common the other.22 exception to that bright line (despite law marriages, there is no such state- In practice, these categories are Justice Becker’s comment to the ment relating to palimony suits, in sometimes blurred and overlap. For contrary) – support payments can be any case, statute, or court rule. example, the Nevada Supreme Court ordered from one unmarried person has directed entry of a temporary to another unmarried person where Alimony16 alimony award “at least for a period the two parties went through a of rehabilitation” where no specific marriage ceremony, the parties Nevada provisions empowering job or career training was at issue.23 apparently believed themselves to be courts to make awards of “support of Similarly, a lump-sum award is married, and there was evidence of the wife and children” go all the way sometimes designated as providing fraud, bad faith or bad conduct, such back to the territorial laws of 1861.17 for temporary or permanent alimony. as cruelty, on the part of the potential They remained in the form of hus- NRS 125.150(1) authorizes the obligor.27 bands paying support for wives until court to award alimony at the the whole statutory scheme was conclusion of a divorce case. Unless COHABITANT LAW IN reworded in 1975, during the debate otherwise ordered by the court, NEVADA28 regarding the proposed Equal Rights alimony terminates in the event of Amendment. After that time, alimo- the death of either party or the subse- As to Property ny could theoretically flow in either quent remarriage of the spouse direction. receiving periodic payments pursuant Starting with the sensible The basic form of the Nevada law to NRS 125.150(5). Pursuant to holding that the public policy of on the subject has thus been in place NRS 125.150(7), prior to the expira- encouraging legal marriage would not for some time, and provides for five tion of the term during which be “well served by allowing one basic flavors of alimony awards: alimony is being paid, either party participant in a meretricious relation-  “Maintenance” – temporary may file a motion for a modification spousal support payments made (cont’d. on page 8) Fall 2011 Page 8 NFLR Evolution of Marriage planned to marry at a future date can is used as shorthand for Michoff-like cont’d. from page 7 be the basis for a palimony award.35 divisions of property accrued during These holdings and precedents a relationship by analogy to commu- ship to abscond with the bulk of the can be applied in a large number of nity property. couple’s acquisitions,”29 the Nevada factual contexts having a big impact On the east coast, however, the Supreme Court issued a series of on property distributions, going to term has a completely different cases finding that property may be subjects as diverse as appreciation of meaning. In New Jersey, in Ko- jointly acquired, and divided, even real estate, contributions to and zlowski,40 the court recognized that when it was accrued by parties who increases in value of retirement bene- unmarried adult partners, even those were not married at the time the fits, andPereira /Van Camp analyses36 who may be married to others, have property was acquired. of a domestic partner’s interest in a the right to choose to cohabit togeth- Through a process that has come separately owned business. er in a marital-like relationship, and to be known as “tacking,” property All of this law is “judge-made,” that if one of those partners is accrued during a period of premarital insofar as none of it is found in any induced to do so by a promise of sup- cohabitation may be divided between specific provision of the NRS. port given her by the other, that the cohabiting parties after they mar- Courts throughout the country have promise will be enforced. ry, and later divorce.30 reviewed cases in which assets were The court held that the palimony The same holds true for cohabit- accrued before, during, or after contract may be oral and usually is ing parties when the time-line is cohabitation relationships that did or because “[p]arties entering this type reversed. Where parties marry, did not include marriage, whether of relationship usually do not record divorce, and then live together in a that marriage was before or after the their understanding in specific legal- meretricious relationship, the proper- cohabitation.37 As the Nevada Fami- ese . . . .” The contract may be express ty accrued by either of them during ly Law Practice Manual notes, in or implied. Consequently, the exist- the cohabitation period may be appropriate circumstances, all assets ence of the contract and its terms are equally divided when the relationship acquired during a couple’s relation- ordinarily determinable not merely ends.31 ship should be equally divided, by what was said but “primarily by As discussed above, the same because courts of equity would the parties’ acts and conduct in light applies when two parties think that determine that “any possible alterna- of . . . [their] subject matter and the they are married, but they are not by tive to that rule would be worse.”38 surrounding circumstances.” reason of a legal impediment making In sum, the law of cohabitant A plaintiff seeking to make out a any attempted marriage between relationships, as it is has evolved in prima facie case for such is required them void.32 Nevada, is essentially a contract anal- to present competent evidence con- The same result occurs when ysis, directing a court to look for clusively showing: (1) that the parties there is no purported marriage at all, evidence of an express contract, cohabited; (2) in a marriage-type but the parties have either an express implied contract, or to enter into a relationship; (3) that, during this or implied agreement to accrue partnership or joint venture, the core period of cohabitation, defendant property together, which becomes concept of which is that “courts will promised plaintiff that he/she would community property by analogy.33 protect [parties’] reasonable expecta- support him/her for life; and (4) that The Nevada Supreme Court has tions with respect to transactions this promise was made in exchange explained that it is not critical in such concerning property rights.”39 for valid consideration. On that last cases whether the parties lived point, the law nationally has been together full time, or apparently for As to Support Obligations quite consistent – there is no measur- any particular time at all.34 This able “consideration” required for mirrors holdings elsewhere, which As an aside, it is worth noting enforcement of a promise to support, have concluded that a part-time that there are two nearly-unrelated and the fact that the parties had a relationship between parties that concepts of “palimony” in the United States. In the west, the term (cont’d. on page 9) Fall 2011 Page 9 NFLR Evolution of Marriage Holdings such as that one were CONFLICTING AND cont’d. from page 8 the underlying law in New Jersey CONTRADICTORY upon which its more specific palimo- PRESUMPTIONS IN sexual relationship is no kind of bar ny holdings were later based,43 MARITAL AND to enforcement of such promises. specifically holding that the Statute COHABITANT CASES The New Jersey Supreme Court of Frauds is no barrier to enforce- found money damages to be adequate ment of a promise for lifetime There is much to address and in remedying a non-matrimonial support.44 resolve in the case law. The existing partner’s breach of his contract to In other words, the Williams authorities treat married and unmar- provide lifetime support to an dicta notwithstanding, “support pali- ried persons very differently, insofar aggrieved partner, measured by the mony” does not appear any more as legal presumptions concerning reasonable actuarially-determined incompatible with Nevada law than their words and actions are con- lifetime support needs of the cohabit- does the “property palimony” already cerned. ant.41 recognized. Testing this hypothesis, For example, a “spouse to spouse The parallel of the New Jersey however, will apparently require a conveyance of title to real property reasoning to the Nevada analysis for trip to the Nevada Supreme Court. creates a presumption of gift that can parties intending to co-own property only be overcome by clear and is obvious. To date, no Nevada case Impact of the Nevada Domestic convincing evidence.”47 However, a squarely addresses such a claim, but Partnership Law conveyance of title to an unmarried there is no immediately-apparent cohabitant may be entirely disregard- reason why such a case could not be If anything, the expansion of pal- ed, and the property distributed brought. imony from property to also include between the parties in accordance The Statute of Frauds, NRS support rights was made much more with their actual contributions to its 111.220, has been on the books since likely by the 2009 adoption in Neva- acquisition.48 Nevada was a territory, and forbids da of a Domestic Partnership There are many similar examples 45 the enforcement of any alleged “oral statute. in Nevada law, going to presump- contract” not to be performed within The full impact of that law is tions, tracing, attributions, and one year, or to answer for the debt or beyond the scope of this article, but burdens of proof. As the law of mari- default or another, or to loan money at minimum the legislature seems to tal dissolution and cohabitant break- or grant or extend credit to another. have provided at least one explicit ups continues to converge, all such However, it would apparently form of “statutory authority” looked dichotomies will have to be explicitly not bar enforcement of a promise of for in Williams for ordering spousal confronted, re-analyzed, and explicit- “support for life,” because such a support between persons not lawfully ly addressed. Matters are even more promise is one that could be complet- married, since domestic partners are severe in the federal sphere, where ed within a year, depending on facts definitionally unmarried, and spousal not only Social Security, but myriad that neither party knows when the support is explicitly available upon tax and other laws vary enormously 46 promise is made. The Nevada dissolution of the relationship. depending on marital status.49 Supreme Court has held that the Given this evolution of the statu- Statute of Frauds only bars contracts tory authority, it is hard to see a solid THE FUTURE OF MARITAL that necessarily cannot be completed basis for arguing that it is within the AND COHABITANT LAW IN NEVADA within a year: “[A]ny agreement ambit of district courts to find an which, by fair interpretation and in agreement to share property as if it As to Property view of all circumstances existing at was community property, but the time, does not admit of perfor- beyond the power of those courts to Not every instance of parties mance within a year from the time find that there was a promise for sup- living in the same place is going to of its making is void under the port which is likewise enforceable. statute.”42 (cont’d. on page 10) Fall 2011 Page 10 NFLR Evolution of Marriage It is possible that the “contract” considered for distribution after cont’d. from page 9 analysis explained in Michoff and those parties later married and then Gilman could further soften to a divorced.52 create a claim for division of assets simple examination of the parties’ Courts elsewhere have applied accrued during that period, or for intent. Similar evolutions are occur- identical reasoning to spousal support payments thereafter. The ring elsewhere. In a recent Alaska support claims. One found that the parties may have an agreement for case, the court brushed aside all tech- wife’s “very significant and substan- extremely separate economic tial” contributions to the hus- lives, or have some different band’s “status and earning capaci- arrangement. In the cohabita- ty,” both before and during mar- tion cases handled by this riage, were properly considered in office, we have tended to determining a proper award of watch for facts giving rise to a alimony. The facts showed that “common economic unit” – an the parties cohabited for seven inter-relation beyond mere years, while the future-husband presence in the same physical completed college and much of space where the successes and medical school. They married in failures of one party have a 1993, and the marriage fell apart direct impact on the fortunes in 1997, just as the husband com- of the other. pleted residency and was begin- Such a common economic ning his medical career.53 unit might be very easy to spot, These holdings are signs and or could be very subtle. If parties nical assertions as to contract portents that a court could find merge their finances, jointly ac- elements made by the party with title pre-marital (or post-divorce) cohabi- quire property and debts, etc., such to the property at issue, finding that tation just as valid a basis for a claim, an arrangement seems facially appar- the words and behavior of the parties or an enlarged claim, to spousal ent. Where such is the case, deposits manifested a clear intent to co-own support as it would be for a property by one party into an IRA deprive the it: claim. economic unit they have formed of In summary, we hold that courts, In the larger picture, if non- resources it could have used, in ex- when dealing with the property marital “contributions” to another’s change for future tax breaks and re- disputes of a man and a woman who career can be considered, valued, and wards – which look a lot like joint have been living together in a non- compensated if the parties happen to investments. marital domestic relationship, should marry and divorce after those contri- Where one party contributes distribute the property based upon butions are made, it is hard to discern only services, and the other contrib- the express or implied intent of those a rationale for why identical contri- utes all cash, the same joint venture parties. butions should be considered entirely composed of unlike contributions ...[W]e affirm under Wood and without value if no such marriage can be found. Holdings elsewhere Beal, which ask what the parties occurs. This makes future judicial indicate that homemaking services intended, not whether they formed a approval of entirely non-marital may constitute adequate considera- contract.51 “support palimony” seem even more tion for a contract to share accrued likely. property.50 The evidence in such a As to Support Obligations case, however, might be much scanti- As to Procedure er, and the chances that the parties As discussed above, the Nevada would retrospectively disagree as to Supreme Court found that the prop- their expressed intentions would erty accrued during a period of seem increased. premarital cohabitation could be (cont’d. on page 11) Fall 2011 Page 11 NFLR Evolution of Marriage of property allegedly acquired during dealing with unmarried cohabitants cont’d. from page 10 their relationship.”56 to the civil/criminal division to be Family courts are quite accus- addressed by judges more used to cor- Currently pending decision on tomed to resolving disputes related to porate spats and fender-benders, the rehearing in the Nevada Supreme such implied or express agreements. Nevada Legislature should waste no Court is the Landreth54 matter. This Every case involving a premarital, time amending the relevant statutes has greatly expanded beyond its post-nuptial or separation agreement to ensure that cases involving the original issues to become a general involves parties similarly addressing break-up of cohabitant relationships exploration of the subject matter contractual property matters within are addressed by judges who “develop jurisdiction of the Nevada family the context of such an “intimate the expertise and have the time to courts; it raises the question of what arrangement.” study the case law and to understand court is best suited to handle all the Judicially-created causes of action the current state of the art in family multiple scenarios in which property belong in the court assigned the tasks issues” as was intended when the division issues between unmarried to which the analogy applies. Both family courts were created. cohabitants might be raised. community property and spousal As the court noted in Gilman, support are dealt with in NRS Chap- CONCLUSIONS AND such actions are based not on status, ter 125, and the family courts have CONVERGENCE but on enforcement of an agreement, exclusive jurisdiction to hear cases either express or implied. Where the under that chapter. Cases involving Societal evolution is leading to question is whether conduct has disposition of property accrued “by rapid changes in traditional concepts demonstrated an implied contract for analogy” to community property, or of property ownership and support “partnership or joint venture,” the claims for lifetime support by analogy duties; relevant law, both substantive action does not fit squarely into any to alimony, likewise belong in family and procedural, must change to keep of the statutory provisions recited in court. up, or it will be the source of much NRS 3.223. injustice. Still, dissolution of a cohabitant As the Family Law Section’s Stepping back from the individu- relationship is far more similar to the Amicus Brief on rehearing in al cases and disputes, it seems clear breakdown of a marriage than it is to Landreth stated: that the entire concept of “family a contract dispute between strangers. law” is in transition – to what As an Illinois court once put it, a Whether a child has been born, remains to be seen, but it does seem property-accrual agreement between or one or both parties are falsely clear that the law of marital cohabitants is “not the kind of arm’s asserting that they are married, dissolution per se is destined to be an length bargain envisioned by tradi- are poor reasons to send some ever-smaller piece of the whole. The tional contract principles, but an cases one way, and others anoth- lines of authority relating to marital intimate arrangement of a funda- er. Case assignments should be dissolution and unmarried cohabit- mentally different kind.”55 deliberate, and based on which ant break-ups appears to be And the most appropriate court court is best equipped to handle converging. to hear such cases is the court most the subject matter of the dispute, There can be little question that familiar with distributing assets not on the happenstance of unre- the demographics of marriage and between parties terminating such lated facts, the lies of the parties, family have undergone enormous relationships – the family court, or the contents of their compet- change in the past century.57 Some which was specifically created and ing allegations. commentators have called for the staffed with personnel trained in outright abolition of the institution dealing with subject matters includ- At this writing it is unknown of marriage as now known, on the ing “actions between unmarried, what decision the Nevada Supreme basis of traditional gender inequality childless parties who used to live to- Court will make in Landreth. But if, gether and who dispute the division for whatever reason, it sends cases (cont’d. on page 12) Fall 2011 Page 12 NFLR Evolution of Marriage biological mothers and step- (Cal. Ct. App. 1985). cont’d. from page 11 fathers. 7. E.g., Arizona. See Ariz. Rev. Stat. § and other grounds.58 One commen- 2. Compare Robertson v. Western 25 – 211 (1998). tator59 predicts possible scenarios Baptist Hospital, 267 S.W.2d 395 resulting from the conflicting (Ky. Ct. App. 1954) (1954 concep- 8. E.g., Nevada. See Forrest v. pressures to “preserve traditional tualization of family) with Allen v. Forrest, 99 Nev. 602, 668 P.2d marriage” on the one hand, and to State Farm Mutual Automobile Ins. 275 (1983). expand marriages to include same-sex Co., 708 N.W.2d 131 (Mich. Ct. unions on the other, ranging from App. 2005) (2005 debate among 9. Alaska, Delaware, Hawaii, Kansas, extinction of marriage to its enor- court members for what consti- Massachusetts, Michigan, Missis- mous expansion. tutes a legitimate “family”); see sippi, Montana, New Hampshire, However the clash of ideals, also North Dakota, Oregon, South Dako- demands, initiatives, and reforms ta, Utah, Vermont, Washington, 3. “Definition of Family – Theoretical and Wyoming. evolve, it seems clear that the Definitions,” posted at http:// concepts of both “marriage” and family.jrank.org/pages/488/ 10. See Dahlquist v. Nev. Indus. “family” are undergoing significant Family-Definition-Theoretical- Comm’n, 46 Nev. 107, 206 P. 197 examination and redefinition, and Definitions.html, recounting eight (1922); In re Keig’s Estate, 59 Cal. that change – perhaps drastic, conceptual approaches to deter- App. 2d 812 (Ct. App. 1943) reformative change – can be expected mining what groupings are or are (discussing evolution of Nevada in the immediate future. The imme- not families, as discussed by multi- common law marriage cases). diate front addressed here is the ple studies and papers. “Definition convergence and conflicts in the of Family,” supra. 11. See Laws of the Territory of Neva- treatment of married and non- da, Ch. 33, § 1 (1861). married couples by Nevada law, and 4. This is not a new concept: “Law the need to derive a legal scheme that must be stable, and yet it cannot 12. See, e.g., State v. Zichfeld, 23 Nev. can and does treat the parties to all stand still.” Roscoe Pound (1870 – 304, 313-14, 46 P. 802, 805 sorts of real-life relationships equita- 1964). (1896) (“Our statute does not bly. expressly, nor by necessary impli- The concepts addressed in family 5. A marriage that takes legal effect, cation, as we view it, render a law are fluid of necessity, making it without license or ceremony, when marriage had in disregard of its a couple live together as husband prescribed formalities void. We are and wife, intend to be married, and to presume that the legislature hold themselves out to others as a knew that marriages by contract References married couple. A validly-entered are valid at common law; that they

common-law marriage is recog- have thus been entered into from 1. United States Census Bureau, nized in all states, but the only time immemorial, and are liable to Majority of Children Live With Two places still permitting them to be continue to be so contracted . . . .”) Biological Parents (Feb. 20, 2008) entered into are apparently (based on 2004 data, available at Alabama, Colorado, Iowa, Kansas, 13. NRS 122.010(1). http://www.census.gov/ Montana, Oklahoma, Pennsylvania, newsroom/releases/archives/ Rhode Island, South Carolina, 14. Wolford v. Wolford, 65 Nev. 710, children/cb08-30.html, last visited Texas, and Utah. 200 P.2d 988 (1948). Feb. 20, 2011). The report indi-

cates that 19.1 million children 6. E.g., California. See, e.g., In re 15. Williams v. Williams, 120 Nev. lived in single-parent homes Marriage of Bergman, 168 Cal. 559, 97 P.3d 1124 (2004). (mostly with their mothers), and App. 3d 742, 214 Cal. Rptr. 661 another 4.1 million lived with their (cont’d. on page 13) Fall 2011 Page 13 NFLR Evolution of Marriage added NRS 125.150(8), requiring a language (“compelling circum- cont’d. from page 12 court granting a divorce to stances”) that most lump sum “consider the need to grant alimo- awards seem to be of separate

ny to a spouse for the purpose of property. 16. This is a bare pencil sketch of Ne- obtaining training or education vada alimony law. Those interest- relating to a job, career or profes- 23. See Shydler v. Shydler, 114 Nev. ed in the subject are referred to sion.” This provision did add some 192, 954 P.2d 37 (1998). Judge David Hardy’s thorough and language indicating what such an scholarly review. See David A. Har- award would encompass, and at 24. Marshal Willick, In Search of a dy, Nevada Alimony: An Important least two factors to consider in Coherent Theoretical Model for Policy in Need of Coherent Policy making such an award (whether Alimony, Nevada Lawyer, April, Purpose, 9 Nevada L.J. 325 (Winter the obligor obtained job skills or 2007, at 40. 2009). education during the marriage, and

whether the recipient provided 25. “Regarding the award of spousal 17. “Support” is a word of “broad signi- financial support while the obligor support, the legislature has failed fication,” permitting the separate did so). Such an order must to set forth an objective standard property of the husband to be set contain terms for when such train- for determining the appropriate aside for the wife and children for ing or education will commence. amount. Absent such a standard, “everything, necessities and there appears to be a disparity in luxuries, which the wife in like 22. NRS 125.150(1) considers on its the awards for spousal support on circumstances is entitled to have face that alimony might be payable similar facts even greater than for and enjoy.” Lake v. Bender, 18 “in a specific principal sum” rather child support.” Wright v. Osburn, Nev. 361, 403 (1884) opn. on re- than in installments, and NRS 114 Nev. 1367, 970 P.2d 1071 h’g. 125.150(4) provides: “In granting a (1998).

divorce, the court may also set 18. NRS 125.040 authorizes Nevada apart such portion of the 26. NRS 125.150(8). courts to make orders for husband’s separate property for “temporary maintenance for the the wife’s support, the wife’s sepa- 27. The insertion of these fault consid- other party” during the pendency of rate property for the husband’s erations into some alimony deter- an action. No standards are provid- support or the separate property of minations, where they are other- ed, and such temporary orders for either spouse for the support of wise forbidden from consideration the purpose of keeping everyone their children as is deemed just (see Rodriguez v. Rodriguez, 116 fed, clothed, and housed during the and equitable.” In the meantime, Nev. 993, 13 P.3d 415 (2000)) is pendency of the case are often the community property statutes emblematic of a larger logical error made on a perfunctory review of require a presumptive equal in the comprehensive structure of “need and ability,” as disclosed division of such property, absent a the Nevada law of property and solely by preliminary financial affi- “compelling reason” for an unequal alimony, but that topic will have to davits. division and the trial court “set wait for another day.

[ting] forth in writing the reasons 19. NRS 125.150(1) authorizes the for making the unequal disposi- 28. Again, this forum does not permit a court to award alimony at the tion.” NRS 125.150(1). So while comprehensive discussion of each conclusion of a divorce case “as “lump sum alimony” could, at least related topic. For background, see appears just and equitable.” No theoretically, be made from Marshal Willick, “What Do You Do standards are provided there, community property, the required When They Don’t Say ‘I Do’? either. standard and legal findings are so Cohabitant Relationships and Com-

much lighter under the alimony munity Property” (Council of 20. Id. rubric (“abuse of discretion”) than Community Property States &

under the property division 21. In 1989, the Nevada Legislature (cont’d. on page 14) Fall 2011 Page 14 NFLR Evolution of Marriage 35. See Sullivan v. Rooney, 533 N.E.2d “an equitable division of property cont’d. from page 13 1372 (Mass. 1989) (where parties accumulated by unmarried cohab- had a relationship of approximately itants has been sustained upon State Bar of Nevada, 1998), posted 14 years, during seven of which finding a partnership, contract for at http:// they lived together, were engaged services, and/or a www.willicklawgroup.com/ to be married at some “indefinite trust.” (footnotes omitted). palimony_cohabitation. future date,” female cohabitant, who gave up her career and main- 38. Nevada Family Law Practice Manu- 29. Hay v. Hay, 100 Nev. 196, 678 tained a home for herself and the al, 2008 Edition § 1.269. P.2d 672 (1984). male cohabitant, was entitled to an imposition of a constructive trust 39. Western States Constr. v. Michoff, 30. Carr – Bricken v. First Interstate on the property, allotting her a one 108 Nev. 931, 937, 840 P.2d Bank, 105 Nev. 570, 779 P.2d 967 –half interest in the residence). 1220, 1224 (1992). (1989). 36. See Johnson v. Johnson, 89 Nev. 40. Kozlowski v. Kozlowski, 80 N.J. 31. Hay v. Hay, 100 Nev. 196, 199, 244, 510 P.2d 625 (1973) 378, 403 A.2d 902 (1979). 678 P.2d 672, 674 (1984). (discussing and applying the theo- ries under which a separately-titled 41. Id., 80 N.J. at 388-389, 403 A.2d 32. Williams v. Williams, 120 Nev. 559, asset which increases in value 902. 97 P.3d 1124 (2004). during a marriage as the result of one spouse’s labor and skills 42. Stanley v. A. Levy & J. Zentner Co., 33. Western States Constr. v. Michoff, creates a property interest in the 60 Nev. 432, 112 P.2d 1047 (Nev. 108 Nev. 931, 840 P.2d 1220 other spouse, citing Pereira v. 1941) (emphasis added). (1992). Pereira, 103 P. 488 (Cal. 1909), and Van Camp v. Van Camp, 199 P. 43. Kozlowski v. Kozlowski, 80 N.J. 34. Gilman v. Gilman, 114 Nev. 416, 885 (Cal. 1921)). 378, 403 A.2d 902 (1979) (“[An] 427, 956 P.2d 761, 767 (1998) agreement between adult non- (explaining Michoff and noting that 37. In deciding In re Rolf, 16 P.3d 345 marital partners, whereby Plaintiff the basis of that decision was (Mont. 2000), the court discussed agreed to live with Defendant and implied contract, pooling of assets, parties who had cohabited for run the household, in exchange for holding out as husband and wife, almost three years, and then Defendant’s promise to provide for treating assets as community prop- married, only to divorce less than Plaintiff for the rest of her life, was erty, and building a business two more years later. On appeal, enforceable, because the agree- together, and finally concluding: the trial court’s holdings were ment was not explicitly and “neither cohabitation nor a roman- affirmed, including that it was inseparably founded on sexual tic relationship is the real basis for proper to consider the premarital services. The relationship between the Michoff holding”). The only cohabitation of the parties in ruling the parties was not tainted by thing that does not belong on the on the fairness of the eventual the fact that Defendant was mar- list of “contract-like” considerations property distribution, and that “it ried at that time. [A]n agreement is “holding out,” an unfortunate and would be wholly inequitable for the between adult parties living togeth- apparently ill-thought-out relic of Court to disregard the relationship er is enforceable to the extent it the common-law marriage of the parties as it existed from is not based on a relationship elements from 100 years ago that [the date they began cohabita- proscribed by law, or on a promise really has no place in the concept tion].” 16 P.3d at ¶¶ 33-37. Utah to marry”). of express or implied contract to law holds similarly. In Layton v. treat property as if it were commu- Layton, 777 P.2d 504, 505-506 44. See, e.g., Crowe v. De Gioia, 495 nity. (Utah App. 1989), the court stated (cont’d. on page 15)

Fall 2011 Page 15 NFLR Evolution of Marriage wald., 67 Cal. Rptr. 3d 86 (Ct. App. cont’d. from page 14 2007); Whoreton v. Dillingham, 57. See Ira Mark Ellman et al., 3 Family 248 Cal. Rptr. 405 (Ct. App. 1988). Law: Cases, Text, Problems (1998) A.2d 889 (N.J. App. Div. 1985); (recounting summary of compre- Connel v. Diehl, 938 A.2d 143 (N.J. 51. Tolan v. Kimball, 33 P.3d 1152 hensive demographic changes). App. Div. 2008) (an unmarried per- (Alaska 2001). son has a well settled right to 58. See Nancy Polikoff, Ending enforce her cohabitant’s promise 52. Carr – Bricken v. First Interstate Marriage as We Know It, 32 Hof- to support her for life). Bank, 105 Nev. 570, 779 P.2d 967 stra L. Rev. 201 (2003-04); Martha (1989). Albertson Fineman, The Neutered 45. NRS ch. 122A. Mother, the Sexual Family, and 53. Meyer v. Meyer, 606 N.W.2d 184 other Twentieth Century Tragedies 46. NRS 122A.200(1)(j)(3). (Wis. 2000). 161-66 (1995); Judith Stacey, Good Riddance to “The Family”: A 47. Kerley v. Kerley, 112 Nev. 36, 910 54. Landreth v. Malik, 125 Nev. ___, Response to David Popenoe, 55 J. P.2d 279 (1996). 221 P.3d 1265 (Adv. Opn. No. 61, Marriage & Fam. 545 (1993) Dec. 24, 2009). (asserting that stable marriage 48. Sack v. Tomlin, 110 Nev. 204, 871 depends on inequality). P.2d 298 (1994); Langevin v. York, 55. Hewitt v. Hewitt, 394 N.E.2d 1204 111 Nev. 1481, 907 P.2d 981 (Ill. 1979). 59. Elizabeth S. Scott, A World Without (1995). Marriage, 41 Fam. L. Q. No. 3 (ABA 56. Hay was precisely such a case; the Fam. Law Section, Fall, 2007) 49. See, e.g. Estate of Shapiro v. United published opinion recites only that States, ___ F.3d ___, No. 08- one of the parties made a claim of Marshal S. Willick is the principal of the th “holding out” after the fact of their 17491, slip op. at 2735, fn. 4 (9 Willick Law Group, an A/V-rated Las Cir., Feb. 22, 2011) (“rightly or divorce. Both Hay and Michoff Vegas family law firm, and wrongly, as a policy choice of Con- addressed the proof required to practices in trial and appellate family gress the estate tax bestows spe- establish property rights of cohabit- law. He is a Certified Family Law Spe- cial status on married couples that ants under theories of contract or cialist, a Fellow of both the American and International Academies of other equitable remedies. The ma- it does not bestow on unmarried Matrimonial Lawyers, former chair of couples”) (J. Tashima, dissenting in jority opinion in Landreth, however, the State Bar of Nevada Family Law part). seemed to confuse elements of Section and past president of the Ne- proof tending to show an implied vada chapter of the AAML. Willick can be reached at (702) 438-4100 or 50. See, e.g., Carroll v. Lee, 712 P.2s contract to co-own property as [email protected] 923 (Ariz. 1986); Chiba v. Green- components of subject matter (website: www.willicklawgroup.com). jurisdiction.

Coming Soon to a Bookshelf Near You:

The Family Law Practice Manual, 2012 Edition

This manual is currently being updated and should be released in 2012.

Fall 2011 Page 16 NFLR A MESSAGE FROM THE CHAIR

By Robert Cerceo, Esq.

[email protected] Secretary, Military Legislation, Bylaws Review

Jennifer Abrams: [email protected] Treasurer, Bylaws Review, Pricing Matters and Income Sharing with the Bar

Jessica Anderson: [email protected] NFPM 3d Editor, Entertainment North

Kristine Brewer: [email protected] Pro Bono Liaison with LACSN, Washoe Legal Service, VARN and Nevada Legal Services

Shelly Booth Cooley: [email protected] NFLR, General Legislation

Judge Bryce Duckworth: [email protected] South and Rural Coordination Meet Your Executive Council Dixie Grossman: Here is a list of current assignments for the Executive [email protected]: Council. Individual projects may change from quarter to Landreth Issues, Bench/Bar Quarterly Summaries quarter, but these are the current assignments as of Sep- North for NFLR tember 2011. If you have information to share, an issue to raise, wish to teach a course, submit an article, or wish John (“Jack”) Hall Howard: to participate in the often-goofy entertainment, then [email protected] Mentoring Program, please contact the Council member for your area of inter- Pro Bono Overlap Issues est. Josef Karacsonyi: [email protected] Robert Cerceo: [email protected] Listserv Moderator, Sponsors at Ely, Entertainment Chair, Amicus Brief Coordinator South

Michael Kattelman: [email protected] Raymond Oster: [email protected] Vice Chair, Ely Paralegal Program Specialization – Applications, Bylaws Review

Katherine Provost: (cont’d. on page 17) Fall 2011 Page 17 NFLR Chair’s Message Friday Midday cont’d. from page 16 Case and legislative update. Eric Pulver: [email protected] Specialization – FLS annual meeting. Test Drafting , Applications for Ely Friday Afternoon Judge Chuck Weller: [email protected] North and Rural Session A – Early childhood development, parental Coordination alienation, specific evidentiary issues – including those arising with the use of us custody experts. Ely 2012 Preview Session B – High conflict custody cases involving the use of private investigators, surveillance, e-mail and text Reactive to your comments regarding some of the messages, social media and cellular phones. Court securi- recent past national speakers, we have developed a more ty and how we can help assess serious threats. home-grown course. The topic will be custody and evi- dence with a more “how to” focus. Here are some of the Nuts and Bolts – Not to be missed. details: Paralegal Course – An expanded two-day course General Track with select speakers from the main session also teaching in the Paralegal Course. Thursday Afternoon Advanced Track – Led by Ray, to be presented Jurisdiction under UCCJEA and UIFSA. Thursday afternoon concurrent with the general track will be evidence and custody under Hague Convention, Mounting a custody case using the NRS 125.480 fac- UCCJEA, UIFSA and relocation. tors as a template, reviewing each factor for: what does it mean; how do you prove it; common evidentiary problems; and burdens of proof. Custody expert Robert Cerceo is the chair of the Family Law Section, a appointments/designations, whether under NRCP 35 or Certified Family Law Specialist, and a Fellow to the IAML. He is new to the Abrams Law Firm and can be the Best Interests of the Child, the benefits and burdens reached at www.TheAbramsLawFirm.com. of such an expert and a relocation primer.

Friday Morning

Session A – Ethics, including in part: meeting with and interviewing the children; the child witness; viola- tions of Joint Legal Custody by unilateral therapy sessions (Rivero requirements); the taking of ridiculous legal positions (Rules of Professional Conduct and the AAML Bounds of Advocacy); mandatory reporting for abuse (when and how to do it). Session B – Drug and alcohol abuse and domestic violence overlays during a custody case, and a review of lower level problems (e.g., smoking near children), and common evidentiary problems.

Fall 2011 Page 18 NFLR “I SPENT THE MONEY ON WHISKEY, WOMEN AND GAMBLING. THE REST, I WASTED.”

By Gary Silverman, Esq.

Introduction

The Bench and Bar classically think of waste as the diamond bracelet and sable coat for a girlfriend, high rise apartment for a mistress, “allowance” for the pool boy or hidden account on the Isle of Wight. Those and other uses of community funds are the subject of this article. This article discusses what may constitute waste, the potential of unequal division, general or punitive damag- es, and how the case law and NRCP 16.2 deal with the issue. The sanctions set forth in Lofgren and Putterman, infra, and under NRS 125.150 may be superseded by NRCP 16.2, but still help in analysis of a waste case.

I. What is Waste? actions is often waste, e.g., a foreign bank account or drug money.2 First, a definition of terms. Lawyers often speak of

“waste.” Our Supreme Court in its two most recent deci- II. NRS 125.150(1)(b) and NRCP 16.2 are the sions on the topic speaks of “compelling reasons” to remedies. make an unequal division of community property pursu- ant to NRS 125.150. In those decisions the court also NRS 125.150 provides: uses the term “waste.” Submitted: the terms mean the In granting a divorce, the court...(b) Shall, to the same; community property spent, conveyed, hidden or extent practicable, make an equal disposition of otherwise converted by a spouse which, inter alia, the community property of the parties, except compels the court in justice and equity to reinstate the that the court may make an unequal disposition property to the community balance sheet and then of the community property in such proportions divide such property as the facts compel. as it deems just if the court finds a compelling This article is not about sanctions for violation of reason to do so and sets forth in writing the interim court orders – that is a contempt/sanction issue reasons for making the unequal disposition. (though such sanctions are intermingled with the notion of waste in the existing case law and NRCP 16.2). It is (Emphasis added.) The statute does not set forth any not about the minefield of seizures, forfeitures and resti- tution proceedings, even though the subject of those (cont’d. on page 19) Fall 2011 Page 19 NFLR Waste in Family Law the actions of persons occupying don v. Peardon, 65 Nev. 717, 767, cont’d. from page 18 relations of confidence and trust 201 P.2d 309, 333 (1948). The cases toward each other. [Emphasis hold that the doctrine of undue reasons for an unequal division, thus added.] influence “reaches every case, and the substantive rules setting out the grants relief ‘where influence is rights under which an unequal divi- Also, Sogg v. Sogg, 108 Nev. 308, 312 acquired and abused, or where confi- sion might be ordered lie elsewhere. (1992) (even affianced parties are in a dence is reposed.” Crawford, supra. presumed fiduciary relationship). Absent, perhaps, a prenuptial NRCP 16.2(A)(1)(B)states: agreement to the contrary, marriage 4 If a party intentionally fails to is such a relationship. include a material asset or liabil- “The law’s model for marriage ity in the party’s financial V. What, exactly, are disclosure form, the court, after is the partnership model: “It is fiduciary duties? notice and hearing, may impose generally recognized that the an appropriate sanction, includ- marital community is a The rules of intra-partnership ing but not limited to the partnership to which both duties are set out in Clark v. Lubritz, following: parties contribute. Each spouse 113 Nev. 1089, 944 P.2d 861 (1997) (i) An order awarding the omit- contributes his or her industry at p. 1095: ted asset to the opposing party as The fiduciary duty among part- in order to further the goals of his or her separate property or ners is generally one of full and the marriage.” York v. York, making another form of unequal frank disclosure of all relevant division of community property; 102 Nev. 179, 180 (1986). information for just, equitable (ii) An order treating the party’s and open dealings at full value failure as a contempt of court; or and consideration. Each partner (iii) An order requiring the party has a right to know all that the failing to make the disclosure to IV. What Kind of Fiduciary others know, and each is required pay the other party’s or opposing Relationship do Spouses to make full disclosure of all party’s reasonable expenses, in- Enjoy? material facts within his cluding attorney’s fees and costs, knowledge in anything relating related to the omitted items. A fiduciary relationship is a fidu- to the partnership affairs. The ciary relationship is a fiduciary requirement of full disclosure III. The hypothesis of this relationship, but the kind of fiduciary among partners in partnership article is that the fiduciary relationship between spouses is that business cannot be escaped...Each relationship is the source of of partners. The law’s model for partner must...not deceive anoth- the right. marriage is the partnership model: er partner by concealment of “It is generally recognized that the material facts. Spouses are in a fiduciary rela- marital community is a partnership [Emphasis added.] tionship. NRS 123.070 provides: to which both parties contribute. Either husband or wife may enter Each spouse contributes his or her The Lubritz court went on to into any contract, engagement or industry in order to further the goals say: “In addition, a partner’s motives transaction with the other, or of the marriage.” York v. York, 102 or intent do not determine whether his with any other person respecting Nev. 179, 180 (1986). actions violate his fiduciary duty … property, which either might en- Case law reinforces the notion of Despite the contractual source of ter into if unmarried, subject in a fiduciary relationship. Relations of partners’ duties inter se, … it is well any contract, engagement or trust and confidence are defined in established that when a fiduciary du- transaction between themselves, Crawford v. Crawford, 24 Nev. 410 to the general rules which control (1899) at p. 417, et. seq.,3 and Pear- (cont’d. on page 20) Fall 2011 Page 20 NFLR Waste in Family Law course, other possible compelling VI. Burden of Proof; Which cont’d. from page 19 reasons, such as negligent loss or Party and What Quantum? destruction of community proper- ty exists between the parties, and the ty...” Putterman at p. 608.) The duties In a fiduciary relationship, the conduct complained of constitutes a of a fiduciary apparently include the party who gains an advantage over breach of that duty, the claim sounds duty of care. the other must justify that result by in tort regardless of the contractual The question as to what consti- clear and convincing evidence, In re underpinnings. Id. at 1284 n.24 tutes negligence as between fiduciaries Tiffany Living Trust 2001, 124 Nev. (quoting Wagman v. Lee, 457 A.2d is not clear. Do persons in a fiduciary Adv. Op. ____(2008): 401, 404 (D.C. 1983)).” Lubritz, p. relationship suffer greater damages if A presumption of undue influ- 1098. Emphasis added. they are negligent with community ence arises when a fiduciary Under Putterman and Lofgren, property? Is there a higher duty than relationship exists and the fiduci- infra, a spouse has a fiduciary duty to that owed to strangers? Does acci- ary benefits from the questioned account for all community funds. In transaction. A fiduciary relation- a case regarding law partners, Foley v. ship between Dabney and Jane Morse & Mowbray,109 Nev. 116, existed in this case because Dab- 121 (1993) the court said: ney’s law firm partner Woloson, Foley claims that the court erred had prepared Jane’s living trust, when it awarded Morse & which benefitted Dabney in that Mowbray an interest in three he was the beneficiary of Jane’s contingency fee cases identified house. Thus, when Dabney sub- as Father Kenny, Lawyer John- stantially benefitted from Jane’s son, and Cynthia Gifford. In a estate plan, a presumption of similar case concerning a law firm undue influence arose. dissolution, the California Court of Appeals ruled that every We have previously noted, in the partner must account to the part- context of an attorney obtaining nership for any benefit and hold a business advantage from a as trustee for it any profits client, that a presumption of derived without the consent of impropriety may be overcome the other partners from any only by clear and satisfactory transaction of the partnership or evidence. As it appears that this from any use of its property. court has never precisely defined Rosenfeld, Meyer & Susman v. “clear and satisfactory” evidence, Cohen, 237 Cal.Rptr. 14, 22-23 dently losing a material sum of we clarify that “clear and satisfac- (Ct.App. 1987). community property create a puni- tory” evidence is equivalent to tive damage claim? Seemingly not “clear and convincing” evidence. In Lofgren, the court spoke of under NRS 42.001. Indeed, in In re Drakulich, we intentional behavior (“...we hold that The partnership model should recognized that clear and con- if community property is lost, not be exclusive. There is also guardi- vincing evidence must produce expended or destroyed through the an and ward and parent and child, “satisfactory” proof that is so intentional misconduct of one e.g., In Re Tiffany Living Trust 2001, strong and cogent as to satisfy the spouse, the court may consider such 124 Nev. Adv. Rep. 8 177 P3d 1060, mind and conscience of a com- misconduct as a compelling reason...” (2008). As stated, a fiduciary rela- mon man, and so to convince at p. 1283. tionship is a fiduciary relationship is a him that he would venture to act In Putterman, the court spoke of fiduciary relationship. negligent behavior (“There are, of (cont’d. on page 21) WinterFall 2011 2010 Page 21 NFLR Waste in Family Law most elementary conceptions of jus- and parcel was approximately cont’d. from page 20 tice and public policy require that the $50,000. The gift was made as part of wrongdoer shall bear the risk of the a ceremony which Wife attended. upon that conviction in matters uncertainty which his own wrong has “Senator Nixons’ wealth at the time of the highest concern and im- created.” Bigelow v. RKO Radio Pic- of making the gift was estimated at portance to his own interest. It tures, 327 U.S. 251, 265 (1946). between three and five million dol- need not possess such a degree of Since Foley failed to bear his burden lars, and at the time of his death he force as to be irresistible, but to account, we conclude that the trial was admitted to be a millionaire.” there must be evidence of tangi- court’s rulings in favor of Morse & After Husband’s death, Wife sought ble facts from which a legitimate Mowbray with respect to the three to set aside the deed on the grounds inference . . . may be drawn. contingency fee cases were not erro- she had not signed it and had not Thus, regardless of the terminolo- neous. consented to the gift. The trial court gy used— whether “clear and found “the instrument in question satisfactory” or “clear and VII. Defenses [is]...void for failure on the part of convincing”— as the Tennessee the donor to obtain the written con- Court of Appeals has noted, “the The usual defenses of contributo- sent of his wife.” evidence must eliminate any seri- ry negligence, waiver, accord and Held: reversed. “The first ques- ous or substantial doubt about satisfaction and ratification seem to tion squarely presents the the correctness of the conclu- proposition: Can the husband in sions to be drawn from the evi- Nevada, during coverture, make a gift dence.” “The most elementary of a portion of the community prop- Only this heightened standard conceptions of justice and erty without obtaining the written can overcome the presumption public policy require that the consent of the wife? A gift negatives of undue influence because “[u] wrongdoer shall bear the risk of any idea of a consideration, either nder our case law, when an attor- the uncertainty which his own nominal or substantial, to the ney deals with a client for the wrong has created.” Bigelow v. community interest.” The applicable former’s benefit, the attorney statute, Section 2160 of the Revised RKO Radio Pictures, 327 U.S. must demonstrate by a higher Laws of Nevada stated “The husband standard of clear and satisfactory 251, 265 (1946). has the entire management and evidence that the transaction was control of the community property, fundamentally fair and free of with the like absolute power of professional overreaching.” This hold. The issues of statute of limita- disposition thereof...as of his own higher standard ensures that the tions and, laches are discussed below. separate estate. law will protect those who can- But, at least one defense seems partic- not protect themselves. [Fn. ular to divorce cases: materiality. Beginning with a discussion of omitted.] The case for the defense of mate- the law of the Visigoths, the Nevada riality is Nixon v. Brown, 46 Nev. 439 Supreme Court went on to reason as In the Foley case, supra, the court (1923). During marriage U.S. Sena- follows: spoke to the burden of proof as fol- tor George Nixon conveyed to the “...[Husband] may make a lows: City of Winnemucca a hall for vari- voluntary disposition of a The court stated that failure to ous performances. “It is admitted portion of the community prop- account properly was a burden of that the property conveyed by the erty, reasonable in reference to proof that rested with the fiduciary deed of trust was community proper- the whole amount, in the absence who had contravened duties enabling ty, not a portion of a homestead; and of a fraudulent intent to defeat allocation and accounting. Id. at 23. that the wife never signed or other- the wife’s claims. Foley, who was in a position to make wise consented in writing to the the allocation, failed to do so. “The conveyance.” The value of the hall (cont’d. on page 22) WinterFall 2011 2010 Page 22 NFLR Waste in Family Law either at the time it was made or cont’d. from page 21 at the time of the senator’s death. We therefore must conclude that the instrument in question was 2. Whether or not the gift is rea- not and is not void for the reason sonable or unreasonable, is a that Senator Nixon did not question to be decided by the procure his wife’s consent there- courts in each particular instance, to in writing. and no hard-and-fixed rule can (Note above in the last paragraph be laid down as to just what that the court implicitly recognizes proportion of the community the defense of ratification or waiver.) interest can be so disposed of by In Nixon, above, the court fur- the husband. ther states: “For the reasons stated above, and, in view of the order to be 3. ...it is admitted that Senator made in this case, we deem it unnec- Nixon, at the time of making the essary to pass upon the question of gift, was wealthy; that his wealth laches, equitable estoppel and the was estimated as between three statute of limitations urged by appel- and five million dollars; that at lants, as being a bar to the action.” the time of his death he was rated Implicitly the defenses were held to as a millionaire. And we have exist. searched the petition in vain to The question is whether those find an allegation on the part of defenses are tolled during marriage. the respondents that the gift was As to laches, later case law holds the made with the intention of defense is tolled during marriage. depriving the wife of her just Cord v. Neuhoff, 94 Nev. 21, 25 interest in the community prop- (1978). As to the statute of limita- erty. We do not believe it is so tions, the issue has not been decided.5 large in proportion to the whole The arguments for and against tolling may follow from litigation between estate that a fraudulent intent the statute are well-known. With spouses commenced for fear that the can be inferred, or that it was un- abolition of fault and the easy availa- bar of laches would attach by lapse of reasonable with reference to the bility of divorce, the viability of the time.” Cord v. Neuhoff, 94 Nev. 21, value of the entire estate. And defense is compelling. Tolling of the 25 (1978). The logic of laches would the acts and conduct of respond- statute of limitations would also seem to apply to statutes of repose. ent Kate I. Nixon negative any muddle the claims of waiver or ratifi- The rule that the statute only thought that she possessed the cation. The argument for tolling is begins to run when the victim knew idea for a minute that Senator highlighted in the hypothetical case or should have known of the tort or Nixon was in any way attempting where Husband is wasting the com- violation of trust would not be to deprive her of any portion of munity assets gambling. Should the impaired.6 her rightful interest in and to the policy of the law be that a mother of community property; but on the three young children must file for VIII. Remedies contrary leads us to the conclu- divorce sooner rather than later just sion that she was in full accord to save her claim. The public policy of Common law remedies for with the senator’s plans, and that Nevada is to foster marital accord breach of a fiduciary duty are set she did not for a moment think and discourage marital discord: “The forth in Clark v. Lubritz, supra: the gift was unreasonable, consid- policy of the law is to refrain from ering their financial circumstances, fostering domestic discord which (cont’d. on page 23) WinterFall 2011 2010 Page 23 NFLR Waste in Family Law implied malice in the form of further described) as a “just and equi- cont’d. from page 22 “despicable conduct” accompa- table” division. It is not clear if the nied by a “conscious disregard of trial court had “evened up” the Despite the contractual source of the rights” of Lubritz. community with the missing and partners’ duties inter se, … it is unaccounted-for funds or awarded well established that when a fidu- Because there is ample evidence the innocent spouse something more. ciary duty exists between the to support a punitive damage If the country club membership and parties, and the conduct com- judgment based on malice, we do the stock which the court awarded to plained of constitutes a breach of not consider it necessary to dis- wife were indeed more valuable than that duty, the claim sounds in cuss fraud or oppression. We the missing property then an unequal tort regardless of the contractual therefore affirm the punitive division occurred. The facts do not underpinnings. Id. at 1284 n.24 damage award.” clearly reveal if the membership and (quoting Wagman v. Lee, 457 stock “evened up” the division or A.2d 401, 404 (D.C. 1983)). Besides common law tort reme- somehow exceeded it on the wife’s dies, another remedy exists under side and imposed a sort of penalty on Therefore, we conclude that the NRS 125.150(1)(b) – unequal divi- husband. breach of fiduciary duty arising sion. Those remedies are found in the In both cases the court deemed from the partnership agreement Lofgren and Putterman cases. In both the restitution of the phantom mon- is a separate tort upon which pu- Lofgren v. Lofgren, 112 Nev. 1282 ies to be a just result. It is submitted nitive damages may be based. (1996) and Putterman v. Putterman, that putting back on the balance 113 Nev. 606 (1997, an order of the sheet that which the malefactor had Under NRS 42.001(3), “express court was violated and in Putterman already enjoyed is simply not an une- malice” is “conduct which is in- the husband had apparently lied to qual division. It is (1) an equal tended to injure a person;” the court. Arguably, other sanctions division of funds in the case of the “implied malice” is “despicable would be available for perjury and party who simply will not account for conduct which is engaged in with contempt of court, but in both cases them: They may well exist in an over- a conscious disregard of the the spouse also hid or failed to reveal seas account or (2) an equal division rights … of others. assets or spent community money on of a (usually) finite amount which things which apparently did not one of the spouses has already … a conscious decision was made benefit the community. enjoyed, i.e., spent on the diamond not to inform Lubritz about the In Lofgren, the effect of the bracelet, the fur and the object of his decision to reduce Lubritz’s court’s decision was not an unequal affections. It is submitted that if the share. For many years appellants division – there was an equal divi- court does not sanction the malefac- “pocketed as profit,” a dispropor- sion. Community funds spent and tor, there is no incentive not to try to tionate distribution, by reducing gone were placed on husband’s side steal or hide funds or to spend them Lubritz’s share and not telling of the community balance sheet. He on the proverbial chorus girl. Only if him about the reduction. In addi- had had the use of the now-phantom there is a sanction from the post- tion, appellants concede that the funds and at trial those funds were division property of the malefactor at decision not to inform Lubritz of set over to him. At the bottom of the the least in the form of an award of the unequal year-end distribu- balance sheet and ultimately as the fees and costs incurred in determin- tion was “not unconscious or net result of the decision, all commu- ing the breach/defalcation, there is accidental. nity funds were accounted-for and no incentive for the guilty party not divided equally. to try to get away with the wrong. It Even if there were not clear and In Putterman, wife was awarded is submitted that the courts should convincing evidence of intent to one-half all known community prop- injure, there is certainly clear and erty and a “valuable” country club convincing evidence here of membership and “certain stock” (not (cont’d. on page 24 WinterFall 2011 2010 Page 24 NFLR

Waste in Family Law they are essentially an ad hoc cont’d. from page 23 approach. At bottom, lawyers are predictors: They are asked by their create a clear disincentive to the clients to foretell how a court will potential tortfeasor (thief). act on a specific set of facts, whether A hard question arises when the it be an activity covered by the Fed- tortfeasor comes forth without the eral securities laws, the Internal Rev- aggrieved party incurring costs and enue Code or covered by our more fees, and admits to the defalcation. mundane (exalted?) NRS Chapter The answer seems to lie in the 125. When a set of facts is dealt with language of Clark v. Lubritz, supra., predictably, those facts tend not to Therefore, it is submitted that in that the taking is what is to be the become triable issues because both lieu of an ad hoc, case-by-case subject of punitive damages. An sides reasonably predict the out- review, the court should adopt an award of interest, at the least, should come. Thus, a coherent, overarching explicit, forthright rule (or the Leg- be considered. rule of law which would permit law- islature amend the statute) which Another question arises when yers to predict the outcome of a set provides that all claims for misbe- the defalcation directly and proxi- of facts will save the courts time and havior under NRS 125.150(1)(b) be mately causes such a shortfall in the the clients’ money. examined in light of the fiduciary community that it cannot take The range of human behavior in duties already imposed on spouses advantage of a business opportunity, the waste aspects of family law is so under NRS 123.070. The proposed e.g., because of the breach not vast that a specific description of rule might be read: Any material enough cash is available for invest- what may constitute “waste” or breach of the duty of good faith, fair ment in what turns out to be a “compelling reasons” is impossible to dealing and disclosure to the communi- lucrative stock offering. Or, when the set forth in either a statute or case ty will be deemed “waste” recoverable business opportunity is seized by a rule. But the common law of fiduci- by the community and to be divided spouse who uses her separate proper- ary relationships is wide and deep, as justice requires under NRS ty to exploit it; interference with an perhaps because, in part, avarice has 125.150(1)(b) and NRCP 16.2, but opportunity. The law of business op- always been with us. The law of fidu- in no less than full reimbursement to portunities is outside the scope of ciaries, having “seen it all,” provides the community, including but not limited to this article, but once the fiduciary substantial guidance to the courts interest, consequential damages, approach is adopted, the analysis and practitioners. While not every punitive damages, interest and costs becomes much easier. form of deceit has yet been con- and fees incurred in such recovery.7

ceived, most have, and those schemes Will this rule create more litiga- IX. Advantages of Analysis have likely all been discovered and tion, especially in the claim for as Breach of Fiduciary Duty litigated. The body of fiduciary law general or punitive damages? Is that v. ad hoc Cases gives counsel the power to say that what the law should encourage? while he or she may not be able to Will this rule create more litigation, Bruce Shapiro’s fine article describe it, they know a breach when not less? It is submitted this rule “Community Waste in Neva- they see it and so will their adversary now exists in a fragmented form. da” (NFLR Fall, 2010) cites to the and the court. Creating a rule with The rule is based in existing case law various cases defining waste and substantial case law behind it permits and statutes and fairly restates the discusses those activities which in the courts, the lawyers and clients to current law from the cases Nevada have not yet been defined as predict results from a set of facts and (Putterman and Lubritz), the waste, e.g., gambling. His provocative thereby avoid litigation the predic- statute (NRS 125.150) and the pro- article points out the difficulties in tive function which the law exalts. cedural rule (NRCP 16.2). These the Putterman and Lofgren cases – (cont’d. on page 25) WinterFall 2011 2010 Page 25 NFLR any other person respecting prop- spousal immunity regarding claims Waste in Family Law erty, which either might enter into arising out of motor vehicle acci- cont’d. from page 24 if unmarried, subject, in any con- dents. Prior to Rupert, interspousal tract, engagement, or transaction immunity barred a tort action by claims are endemic in family law between themselves, to the gen- one spouse against the other. practice. It is submitted the court eral rules which control the actions Morrissett v. Morrissett, 80 Nev. may want to impose on them order of persons occupying relations of 566, 397 P.2d 184 (1964).” Ziglin- and predictability and end uncertain- confidence and trust towards each ski v. Farmers Insurance, 93 Nev. other. (Gen. Stats. 517.) 23, 24 (1977). The author could 8 ty and disarray. find no case in Nevada which abro- 4. The general rule of equity regulat- gates the statute of limitations (Thanks to Radford Smith, Jim ing dealings between parties between spouses or which tolls it. occupying fiduciary relations, or Jimmerson, Marshall Willick, relations of trust and confidence, is 6. NRS 11.190 (3)(d): “… ac- Bob Cerceo and Bruce Shapiro well known. It is said: “In this class tions...may only be commenced … for their review and input. All of cases there is often to be found [w]ithin 3 years ... an action for errors are theirs; the author is some intermixture of deceit, relief on the ground of fraud or mis- imposition, overreaching, uncon- take, but the cause of action in blameless.) scionable advantage, or other such a case shall be deemed to mark of direct and positive fraud. accrue upon the discovery by the But the principle on which courts of aggrieved party of the facts consti- Note: The preceding article equity act in regard thereto stands, tuting the fraud or mistake.” It appeared in the May 2011 independent of any such ingredi- may be argued the two year stat- Issue of the Nevada Lawyer ent, upon a motive of general ute would apply. That is for another public policy; and it is designed in article by another author. magazine, a publication of the some degree as a protection to the State Bar of Nevada. This parties against the effect of 7. This rule would not impair the abil- reprint contains the entire overweening confidence and self- ity of a court to make an unequal article. delusion and the infirmities of division of community property by hasty and precipitate judg- reason of a child’s or spouse’s ment.” (Story’s Eq. Jur. sec. 307.) security for payment of support, etc. 5. It is also said: “The doctrine to be References examined arises from the very con- 8. The question remains in which ception and existence of a fiduciary court, civil or domestic, such 1. Attributed to actor George Raft relation. While equity does not claims might be brought, also. who made, and squandered, about deny the possibility of a valid trans- $10 million in his movie career: action between the two parties, “Part of the loot went for gambling, yet, because every fiduciary rela- Gary R. Silverman is an author of the part for horses and part for wom- tion implies a condition of superior- Bounds of Advocacy (a book on eth- en. The rest I spent foolishly.” ity held by one of the parties over ics in divorce cases for the American English soccer star George Best: “I the other in every transaction be- Academy of Matrimonial Lawyers), spent a lot of money on booze, tween them by which the superior the Academy’s Client Relations birds and fast cars. The rest I just party obtains a possible benefit, Handbook. He has published an arti- squandered.” equity raises a presumption cle on evidence in the American Bar against its validity, and casts upon Association’s family law publication. 2. See “No Honor Among Thieves or that party the burden of proving He was President of the Washoe Spouses–Issues Confronting the affirmatively its compliance with County Bar Association and Chair of Divorce Spouse in Disgorgement, equitable requisites, and thereby the Family Law Section of the State Forfeiture, and Restitution overcoming the presump- Bar. He was a Pro Bono Lawyer of Proceedings, 44 Fam Law Qtrly, tion.” (Pomeroy’s Eq. Jur. sec. the Year. In 1996, 1997 and 2005, Summer 2010 (ABA). 956.)” the firm was the Pro Bono Law Firm of the Year. Mr. Silverman can be 3. Crawford, id.: “Coming now to the 4. This creates an issue to consider in reached at Silverman, Decaria & question of constructive fraud, we the drafting of nuptial agreements. Kattelman, Chtd., 6140 Plumas find that our statute provides that Street, Suite 200, Reno, Nevada either husband or wife may enter 5. “This court, in Rupert v. Stienne, 90 89519; Telephone: 775-322-3223; into any contract, engagement, or Nev. 397, 528 P.2d 1013 (1974), Facsimile: 775-322-3649. transaction with the other, or with abrogated the doctrine of inter-

WinterFall 2011 2010 Page 26 NFLR BENCH /BAR MEETING REPORT: “THE SOUTH”

For the Meeting Held June 30, 2011 By Andrew L. Kynaston, Esq.

Members of the judiciary, Judge Sanchez announced that analysis even in cases where representatives from the clerk’s office Judges Steven Jones and Cynthia attorneys’ fees may otherwise be and court administration, and family Dianne Steel were being reassigned warranted under other legal law practitioners throughout effective March 14, with Judge Jones precedents such as pursuant to Southern Nevada met at the Family beginning to handle juvenile matters Sargeant v. Sargeant, 88 Nev. 223, Court and Services Center 495 P.2d 618 (1972), or provisions for Bench/Bar meetings held of NRS Chapter 18. Judge February 24 and April 4, Pomrenze indicated that the 2011. Both meetings were District Court judges are routinely well attended with those in being reversed and remanded on attendance well prepared to awards of attorneys’ fees when the discuss matters relevant to same are awarded without making the ever-evolving practice of specific findings under Brunzell. family law in Southern The attorneys’ fees analysis should Nevada. include the following factors: At the meeting held 1. the qualities of the advocate February 24, Presiding (ability, training, education, Family Court Judge Gloria experience, professional standing Sanchez reminded attendees and skill); of the ongoing availability of 2. the character and difficulty of the Senior Judge Settlement the work performed (intricacy, Program, which continues to importance, time and skill have great success in helping litigants and Judge Steel hearing domestic required, responsibility imposed, resolve cases without trial, matters. and prominence and character of minimizing the level of conflict and Judge Sandra Pomrenze briefly the parties where they affect the reducing the court’s litigation load. spoke regarding motions for importance of litigation); Attendees were further advised that attorneys’ fees and stressed the 3. the work actually performed by proposed revisions to Eighth Judicial importance of including an analysis the attorney (time, skill, and District Court Rules regarding e- under the factors set forth in attention given to the work); and filing and governing the preservation Brunzell v. Golden Gate Nat’l Bank, 4. the result obtained (whether the of original documents have been 85 Nev. 345 (1969), in any motion attorney was successful and what approved by the District Court and requesting attorneys’ fees. She benefits were derived). are presently being reviewed by the recommended that attorneys err on Nevada Supreme Court. Finally, the side of caution and include such (cont’d. on page 27 Fall 2011 Page 27 NFLR Bench/Bar Meeting behavior when communicating with Financial Disclosure Form is still cont’d. from page 26 law clerks and practitioners must available for review and comment on respect the fact that the law clerks Marshal Willick’s web page: An open forum discussion then provide a valuable service to both the http://www.willicklawgroup.com/ occurred regarding the important judges they serve and the family law clark_county_bench_bar. role of the judges’ law clerks in the bar. The law clerks in attendance Also, it was announced that the efficient functioning of the Family agreed to meet to discuss the short form affidavit proposal was Court. The law clerks play a key role concerns raised during the meeting passed by the judiciary, which now as a buffer between the court and the and to review and revise existing allows attorneys to include a short practitioners. Some frustration was checklists. summary affidavit with pleadings expressed by both the law clerks and Additional important matters rather than being required to restate the practitioners in attendance at the were discussed during the meeting each and every fact set forth in the meeting regarding a certain level of held April 4. It was announced that body of the pleading in the incivility occurring in communications the court is in need of additional Pro supporting affidavit. An example of between practitioners and law clerks. Tem Hearing Masters and any the short form affidavit can be found The law clerks expressed that some practitioners interested in providing on Marshal Willick’s website. attorneys are rude when they call, or such services should contact the If you have any discussion items inappropriately try to argue their court. Also announced was a change you would like to include on the cases to the law clerks. Practitioners in the business hours of the Clerk’s agenda of any future Bench/Bar were concerned that the law clerk Office. Effective May 9, 2011, the meetings please e-mail Corinne relied too much on checklists when Clerk’s Office hours for in-person Price, Esq. at: reviewing decrees and orders and that filing were changed to 9 a.m. to 4 there was a lack of uniformity p.m. E-filing services remainAndrew L. Kynaston, Esq., is a partner at the law firm of Ecker & Kainen, between departments with regard to available anytime. Chartered, where he practices exclu- checklists utilized by the law clerks. By way of follow-up to the sively in the area of family law. Mr. There was a general consensus that discussion regarding law clerks at the Kynaston can be reached at: law clerks and attorneys must be able February 24 meeting, it was reported [email protected]. to have appropriate open lines of that the law clerks were still working communication and mutual respect. The firm’s website is on revising checklists. Practitioners www.eckerkainen.com. Further, there is no excuse for rude were advised that the revised The 2012 Family Law Conference

Join the Family Law section March 1-2 in Ely, Nevada

This Year’s Topics Include:

UCCJEA UIFSA Legislative updates And more!

Fall 2011