Bowlby v. Bowlby C/W 56687/58888 ( 2013 )


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  •                 separate properties, with appellant receiving a $1.7 million equalization
    payment for the difference in value between the two homes.
    The FMA provided that the parties had agreed that rather
    than valuing and dividing their wealth at the time of the divorce, they
    would proceed to liquidate various community business holdings in an
    orderly fashion and divide the net proceeds. As part of that liquidation
    process, each party could be required to make separate property capital
    contributions ("capital calls") for ongoing business expenses as approved
    by a court-appointed financial expert. Under the FMA, appellant and
    respondent were "obligated to use their respective sole and separate
    property to answer capital calls as may be required." Additionally, under
    the district court's judgment of partial property distribution, each party
    was required to maintain $1 million in liquid assets or a line of credit to
    satisfy any future capital calls. If a dispute arose as to the capital calls,
    the parties were to bring the issue before the district court for resolution.
    Finally, the district court retained continuing jurisdiction over
    the liquidation of the parties' community property. In this regard, the
    decree specifically states that the district court "shall have continuing
    jurisdiction over the Orderly Liquidation, as it relates to the parties'
    community property, and all permutations of that Orderly Liquidation."
    During the liquidation process, appellant failed to pay the
    second capital call as requested, and respondent sought relief from the
    district court. The district court entered an order directing appellant to
    pay the second capital call in the amount of $291,676.58. When appellant
    again failed to pay the capital call, respondent filed a motion to hold
    appellant in contempt under NRS 22.010 and requested sanctions in the
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    form of attorney fees and expert fees associated with the collection of that
    capital call.
    After a show cause hearing, the district court entered an order
    on February 5, 2010, finding appellant in contempt for failing to pay the
    capital call. That order also awarded respondent attorney fees incurred in
    collecting the capital call and directed respondent's attorney to provide an
    affidavit regarding his fees. The affidavit was thereafter filed with the
    court, and appellant filed an objection. On March 24, 2010, the district
    court entered an order awarding respondent $25,000 in attorney fees. On
    April 26, 2010, appellant filed her first appeal designating both the
    contempt order and the attorney fees order, which is currently pending in
    Docket No. 56062.
    Respondent then filed in the district court a motion to
    sequester funds for future capital calls, in which he requested that the
    court order the sale of appellant's Traditions home for the purpose of
    meeting future capital calls and assisting with his negotiations with
    various lenders aimed at reducing the loans for which the marital estate
    was still obligated. Appellant opposed the motion. On July 8, 2010, the
    district court entered an order directing the sale of both the Traditions
    home and the Hideaway home. That order also approved another capital
    call to be paid by appellant in the amount of $99,911.99. Appellant's
    timely appeal from that order is pending in Docket No. 56687.
    About eight months after the district court ordered appellant
    to sell her Traditions home, respondent filed a motion to hold appellant in
    contempt for continuing violation of court orders and for attorney fees. In
    the motion, respondent alleged, among other things, that appellant
    interfered with the marketing of her home, failed to meet certain capital
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    calls, and failed to execute documents as required by court order.
    Appellant opposed the motion. After a hearing, the district court entered
    an order on June 29, 2011, denying respondent's request to find appellant
    in contempt, but directing appellant to pay respondent $75,000 in attorney
    fees as a sanction based on appellant's continued delay tactics, which
    necessitated respondent's motion practice. Appellant's timely appeal from
    that order is pending in Docket No. 58888.
    DISCUSSION
    When our review of the documents pending before this court
    revealed a potential jurisdictional defect, we directed appellant to show
    cause why these appeals should not be dismissed for lack of jurisdiction
    because the orders did not appear to be substantively appealable.
    Appellant has filed her response as directed.' For the reasons set forth
    below, we conclude that we lack jurisdiction over these appeals.
    This court has jurisdiction to consider an appeal only when the
    appeal is authorized by statute or court rule.   Taylor Constr. Co. v. Hilton
    Hotels Corp., 
    100 Nev. 207
    , 
    678 P.2d 1152
     (1984). NRAP 3A(b) allows
    appeals to be taken from a final judgment and from a special order entered
    after a final judgment.   See NRAP 3A(b)(1) and (8). In response to our
    show cause order, appellant contends that the orders are final and
    appealable under NRAP 3A(b)(1) because they finally resolve issues
    relating to contempt. Alternatively, appellant contends that the orders
    are appealable as special orders entered after a final judgment because
    "On May 9, 2013, respondent filed a motion for leave to reply to
    appellant's response, but only if this court requires additional information.
    In light of our disposition of this matter, we deny the motion.
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    they affect her rights arising from the divorce decree by requiring her to
    sell property awarded to her under the decree and by directing her to pay
    substantial attorney fees to respondent.
    Appellant's contentions are unpersuasive. The district court
    has not entered a final judgment in the proceeding below. Therefore, the
    challenged orders are not appealable as either a final judgment or as
    special orders entered after a final judgment. In a divorce proceeding such
    as this, the final judgment is one that finally resolves all issues pertaining
    to the dissolution of the parties' marriage, including the division of
    property.   See Lee v. GNLV Corp.,    
    116 Nev. 424
    , 426, 
    996 P.2d 416
    , 417
    (2000) (recognizing that a final judgment is one that disposes of all issues
    presented and leaves nothing for the court's future consideration, except
    for certain post-judgment issues). In determining whether a judgment is
    final, this court will typically look beyond the label and instead take a
    functional view of finality.   Valley Bank of Nevada v. Ginsburg, 
    110 Nev. 440
    , 444, 
    874 P.2d 729
    , 733 (1994). The requirement of finality furthers
    judicial economy by avoiding piecemeal appellate review. 
    Id.
    Here, although the district court entered a divorce decree in
    2009, the decree and any prior orders incorporated therein did not finally
    resolve the division of the parties' community property, and that issue
    remains pending. The decree divided some community property assets,
    but pursuant to the parties' agreement, the remaining community estate
    was to be liquidated and the proceeds thereafter divided, with the court
    retaining jurisdiction over that liquidation process. The district court is
    still actively involved in the liquidation and division of the parties'
    community property assets, as evidenced by the various orders challenged
    in these appeals. Therefore, because no final judgment has been entered
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    in the divorce proceeding, the orders challenged in these appeals are
    interlocutory and not independently appealable, and we lack jurisdiction
    to consider them.   See NRAP 3A(b) (listing orders and judgments from
    which an appeal may be taken); Pengilly v. Rancho Santa Fe Homeowners
    Ass'n., 
    116 Nev. 646
    , 649, 
    5 P.3d 569
    , 571 (2000) (recognizing that a
    contempt order is not independently appealable).
    Accordingly, we dismiss these appeals. We note that because
    these orders are interlocutory, they may be challenged on appeal from the
    final judgment that resolves the remaining property distribution issues.
    Consol. Generator-Nevada, Inc. v. Cummins Engine Co., 
    114 Nev. 1304
    ,
    1312, 
    971 P.2d 1251
    , 1256 (1998) (stating that interlocutory orders may be
    challenged on appeal from the final judgment)
    It is so ORDERED.
    Gibbons
    locag            J.
    DougTas
    Saitta
    cc:   Ninth Judicial District Court Dept. 1
    Carolyn Worrell, Settlement Judge
    Black & LoBello
    Sherry B. Bowers
    Silverman, Decaria & Kattelman, Chtd.
    Jolley Urga Wirth Woodbury & Standish
    Douglas County Clerk
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