Martin v. Martin , 2022 NV 78 ( 2022 )

138 Nev., Advance Opinion 76
IN THE SUPREME COURT OF THE STATE OF NEVADA
ERICH M. MARTIN, No. 81810
Appellant,
vs.
RAINA L. MARTIN,
Respondent.
ERICH M. MARTIN, No. 82517
Appellant,
vs.
RAINA L. MARTIN,
FILE
Respondent.
Consolidated appeals from district court orders enforcing a
divorce decree and awarding pendente lite attorney fees. Eighth Judicial
District Court, Family Division, Clark County; Rebecca Burton, Judge.
Affirmed.
Marquis Aurbach Coifing and Chad F. Clement and Kathleen A. Wilde, Las
Vegas,
for Appellant.
Willick Law Group and Marshal S. Willick and Richard L. Crane, Las
Vegas,
for Respondent.
Kainen Law Group and Racheal H. Mastel, Las Vegas,
for Amicus Curiae American Academy of Matrimonial Lawyers.
SUPREME COURT
OF
NEVADA
12 377,11,
(0) I947A
Pecos Law Group and Shann D. Winesett, Henderson,
for Amicus Curiae Family Law Section of the State Bar of Nevada.
BEFORE THE SUPREME COURT, EN BANC.'
OPINION
By the Court, STIGLICH, J.:
In this opinion, we consider whether an indemnification
•provision in a property settlement incident to a divorce decree is enforceable
where a divorcing veteran agrees to reimburse his or her spouse should the
veteran elect to receive military disability pay rather than retirement
benefits. Electing disability pay requires a veteran to waive retirement
benefits in a corresponding amount to prevent double-dipping. And so,
where a state court divides military retirement pay between divorcing
spouses as a community asset, this election diminishes the amount of
retirement pay to be divided and thus each party's share. Federal law
precludes state courts from dividing disability pay as community property
in allocating each party's separate pay, and courts may not order the
reimbursement of a nonveteran spouse to the extent of this diminution. We
conclude, however, that state courts do not improperly divide disability pay
when they enforce the terms of a negotiated property settlement as res
judicata, even if the parties agreed on a reimbursement provision that the
state court would lack authority to otherwise mandate. We also conclude
'The Honorable Abbi Silver having retired, this matter was decided
by a six-justice court.
SUPREME COURT
OF
NEVADA
(0) I947A 40SID
2
that a court does not abuse its discretion by awarding pendente lite attorney
fees under NRS 125.040 without analyzing the Brunzell2 factors because
those factors consider the quality of work already performed, in contrast to
an NRS 125.040 attorney fee award, which is prospective in nature.
Therefore, in this case, we affirm the orders of the district court.
FACTS AND PROCEDURAL HISTORY
Erich and Raina married in 2002 while Erich was serving in the
military. They later separated, Erich filed a complaint for divorce, and the
district court ordered mediation. Following mediation, the parties put the
terms of their divorce agreements into a signed marital settlement
agreement. According to the district court minutes, the next day, at the
scheduled case management conference, Erich's counsel informed the
district court that "the parties reached an agreement resolving all issues,
and a Decree of Divorce is forthcoming."
The district court entered the divorce decree in November 2015.
In relevant part, the decree allotted to Raina half of Erich's military
retirement benefits and provided that Erich shall reimburse Raina for any
reduction in that amount if he elects to receive disability pay instead of
retirement pay. A year later, the court entered an order incident to the
divorce decree to provide sufficient details to allow the Defense Finance and
Accounting Service (DFAS) and the parties to correctly allocate Raina's
percentage of the military retirement benefits in accordance with the
divorce decree. The court specified that the order was intended to qualify
under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C.
2Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 455 P.2d 31 (1969).
SUPREME COURT
OF
NEVADA
(0) 1947A
3
§ 1408 (2018). The order further provided that Erich shall pay Raina
directly to make up any deficit created if he applies for disability pay.
Erich retired from the military in 2019, and Raina began
receiving her agreed-upon share of Erich's retirement benefits from DFAS.
The following year, DFAS informed Raina that she would no longer be
receiving benefit payments from DFAS because Erich opted for full
disability pay, waiving all retirement pay. Raina contacted Erich to inquire
how she would receive payments from him, and Erich responded that he
would not be paying her, claiming he was not required to do so under federal
law.
Raina subsequently moved to enforce the divorce decree. Erich
opposed, arguing that reimbursement for selecting disability pay is
unenforceable under federal statute and United States Supreme Court
precedent. Following a hearing, the district court issued an order enforcing
the divorce decree. The district court determined that federal law did not
"divest the parties of their right to contract" to the terms in the divorce
decree requiring Erich to reimburse or indemnify Raina for any waiver of
military retirement benefits resulting in a reduction of her payments. The
district court also concluded that the decree was binding on the parties as
res judicata. The district court accordingly granted Raina's motion to
enforce the reimbursement provision of the divorce decree and ordered
Erich to pay Raina monthly installments in the amount she would have
been entitled to if Erich had not waived his retirement pay.
After Erich filed a notice of appeal, Raina moved for pendente
lite attorney fees and costs for the appeal. Erich opposed, asserting that
Raina could afford her own attorney fees. The district court granted Raina's
request, although in a reduced amount, awarding $5000 in attorney fees.
SUPREME COURT
OF
NEVADA
(0) I947A
4
Erich appealed both the order regarding enforcement of
military retirement benefits and the order awarding pendente lite attorney
fees, and the two appeals were consolidated for review. The court of appeals
affirmed in part the order awarding attorney fees, reversed in part the
district court order enforcing the divorce decree, and remanded. Martin v.
Martin, Nos. 81810-COA & 82517-COA, 2021 WL 5370076 (Nev. Ct. App.
Nov. 17, 2021) (Order Affirming in Part, Reversing in Part, and
Remanding). Raina petitioned this court for review under NRAP 40B. We
granted the petition and invited the participation of amici curiae. The
American Academy of Matrimonial Lawyers (AAML) filed an amicus brief
in support of Raina. The Family Law Section of the State Bar of Nevada
joined AAML's brief.
DISCUSSION
Erich argues that the district court erred by enforcing the
divorce decree and ordering indemnification because federal law, including
10 U.S.C. § 1408 (2018) and Howell v. Howell, 581 U.S. , 137 S. Ct. 1400(2017), preempts state courts from dividing military disability benefits. He
argues that the United States Congress has directly and specifically
legislated in the area of domestic relations regarding the division of
veterans' benefits, preempting state law. Erich further argues that the
district court's reliance on contract principles and res judicata was
misplaced and did not permit the court to enforce the divorce decree.
In response, Raina argues that the district court appropriately
ordered indemnification pursuant to the divorce decree. She asserts that
the district court correctly determined that res judicata applied because the
parties negotiated and agreed to the terms of the divorce decree and that
federal law did not preempt the court from enforcing the final, unappealed
decree. She argues that Howell is distinguishable because contractual
SUPREME COURT
OF
NEVADA
(0) I 947A .40241ID
5
indemnification was never raised in Howell and asserts that the United
States Supreme Court left open the possibility that parties may consider
that a spouse could later waive retirement pay when drafting divorce
terms.3
Howell and Manse114 are distinguishable
We review questions of law, including interpretation of caselaw,
de novo. Liu v. Christopher Homes, LLC, 130 Nev. 147, 151, 321 P.3d 875,
877 (2014) (reviewing a district court's application of caselaw de novo);
Wyeth v. Rowatt, 126 Nev. 446, 460, 244 P.3d 765, 775 (2010) ("Appellate
issues involving a purely legal question are reviewed de novo."). Statutory
construction likewise presents a question of law that we review de novo.
Leven v. Frey, 123 Nev. 399, 402, 168 P.3d 712, 714 (2007). "[Wlhen a
statute's language is plain and its meaning clear, [we generally] apply that
plain language." Id. at 403, 168 P.3d at 715.
Congress passed the Uniformed Services Former Spouses'
Protection Act (USFSPA) in 1982. See Pub. L. No. 97-252, §§ 1001-02, 96
Stat. 730-35 (1982) (codified at 10 U.S.C. § 1408 (2018)). Pursuant to 10
U.S.C. § 1408(c)(1), courts are authorized to treat veterans' "disposable
retired pay" as community property upon divorce. "Disposable retired pay"
is defined as "the total monthly retired pay to which a member is entitled,"
31n its amicus brief, AAML argues that Howell does not preclude
enforcement of indemnification provisions when the parties agreed to the
terms in a marital settlement. AAML asserts that federal law does not
preempt state courts from enforcing an agreed upon judgment, such as the
divorce decree at issue here, when the purpose of the enforcement order is
consistent with the intent of the parties. AAML provides examples of other
jurisdictions that enforce indemnity clauses in agreements where one party
has reduced his or her retirement pay amount in favor of disability benefits.
Mansell v. Mansell, 490 U.S. 581 (1989).
4
SUPREME COURT
OF
NEVADA
(0) 1947A 4:40(44
6
less certain deductions. 10 U.S.C. § 1408(a)(4)(A). Disability benefits
received involve "a waiver of retired pay" and are deducted from a veteran's
"disposable retired pay" amount.5 See 10 U.S.C. § 1408(a)(4)(A)(ii); see also
38 U.S.C. § 5305 (2012) (providing that military disability payments require
a waiver of retired pay). Thus, where parties agree to a particular division
of military retirement pay, waiving that pay in whole or part in favor of
receiving disability benefits will reduce the share of military retirement pay
that each party will receive.
The Supreme Court has held "that the [USFSPA] does not grant
state courts the power to treat as property divisible upon divorce military
retirement pay that has been waived to receive veterans' disability
benefits." Mansell v. Mansell, 490 U.S. 581, 594-95 (1989). While
retirement pay may be a community asset subject to division by state courts,
disability benefits are not. Id. at 588-89. The Court further clarified that a
state court may not "subsequently increase, pro rata, the amount the
divorced spouse receives each month from the veteran's retirement pay in
order to indemnify the divorced spouse for the loss caused by the veteran's
waiver." Howell, 581 U.S. at , 137 S. Ct. at 1402. When the Howell
parties divorced, the divorce decree treated the veteran husband's future
military retirement pay as community property and awarded the
nonveteran wife 50 percent of the retirement pay as separate property. Id.at , 137 S. Ct. at 1404. After the husband waived some military
retirement pay for disability benefits, the wife sought to enforce the decree
5The United States Supreme Court has observed that "since
retirement pay is taxable while disability benefits are not, the veteran often
elects to waive retirement pay in order to receive disability benefits."
Howell, 581 U.S. at , 137 S. Ct. at 1403.
SUPREME COURT
OF
NEVADA
(0) I 947A
7
in state court, and the court ordered the husband to pay the 50-percent
portion of the original retirement amount. Id. The Supreme Court
reversed, concluding any reimbursement was a division of disability
benefits by the state court, which federal law prohibits. Id. at , 137 S.
Ct. at 1406. Howell and Mansell thus provide that federal law preempts
state courts from treating disability benefits as community property that
may be divided to reimburse a divorcing spouse for a lost or diminished
share of retirement pay. Howell, 581 U.S. at , 137 S. Ct. at 1405;
Mansell, 490 U.S. at 594-95.
Neither of those cases, however, involved the parties agreeing
to an indemnification provision in the divorce decree property settlement.
See Howell, 581 U.S. at , 137 S. Ct. at 1404 (involving a state court
ordering husband to pay wife the original amount set out in the divorce
decree after he waived some military retirement pay for• disability benefits);
Mansell, 490 U.S. at 586 (involving a state court declining to modify a
divorce decree where the parties divided disability benefits as community
property). The Alaska Supreme Court distinguished Howell on this basis,
explaining that lallthough Howell makes clear that state courts cannot
simply order a military spouse who elects disability pay to reimburse or
indemnify the other on a dollar for dollar basis, Howell does not preclude
one spouse from agreeing to indemnify the other as part of a negotiated
property settlement." Jones v. Jones, 505 P.3d 224, 230 (Alaska 2022); see
also id. (quoting a treatise on military divorce for the observation that "[ilt's
one thing to argue about a judge's power to require . . . a duty to indemnify,
but another matter entirely to require a litigant to perform what he has
promised in a contract" (alteration and omission in original) (internal
quotation marks omitted)).
SUPREME COURT
OF
NEVADA
(0) 1947A .100
The instant matter is thus distinguishable. Here, Raina and
Erich expressly agreed while negotiating marital settlement terms, as
incorporated in the divorce decree, that "[s]hould Erich select to accept
military disability payments, Erich shall reimburse Raina for any amount
that her share of the pension is reduced due to the disability status." Howell
and Mansell direct that state courts lack the authority to treat disability
pay as community property and to divide it in a divorce disposition. They
do not bar parties themselves from taking into account the possibility that
one divorcing spouse may elect to receive disability compensation in the
future and structuring the divorce decree accordingly.
Federal law does not preempt enforcement
In light of our conclusion that Howell and Mansell are
distinguishable, we proceed to Erich's argument that Congress intended to
preempt state law in this instance. The Supremacy Clause of the United
States Constitution provides that federal law is the supreme law of the land.
U.S. Const. art. vI, § 2; Nanopierce Techs., Inc. v. Depository Tr. & Clearing
Corp., 123 Nev. 362, 370, 168 P.3d 73, 79 (2007). The doctrine of federal
preemption thus provides that federal law shall apply and preempt state
law where Congress intended to preempt state law. Id. Preemption may
be either express, by explicit statement in the federal statute, or implied,
when Congress seeks to legislate over an entire subject or field or when
state and federal statutes conflict. Id. at 371-75, 168 P.3d at 79-82. While
state law typically controls in matters of family law including divorce,
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979), there have been some
"instances where Congress has directly and specifically legislated in the
area of domestic relations," Mansell, 490 U.S. at 587. We review questions
of federal preemption de novo. Nanopierce Techs., 123 Nev. at 370, 168 P.3d
at 79. At the outset, we note that neither express preemption nor field
SUPREME COURT
OF
NEVADA
(0) 1947A
9
preemption apply, as 10 U.S.C. § 1408 contains no specific bar against state
enforcement of divorce decrees and as family law matters are typically
issues of state law.
We further conclude that conflict preemption also does not
apply. The Supreme Court has recognized that Congress, in enacting 10
U.S.C. § 1408, intended to preempt state courts from dividing disability
benefits as community property. Howell, 581 U.S. at , 137 S. Ct. at 1405;
see also 10 U.S.C. § 1408(c)(1) (providing when a court may treat disposable
retired pay as separate or community property in accordance with the laws
of its jurisdiction). The Court has observed that section 1408(c)(1) "limit [s]
specifically and plainly the extent to which state courts may treat military
retirement pay as community property." Mansell, 490 U.S. at 590. As
discussed, however, that is not what the district court did in this instance.
By its plain language, nothing in 10 U.S.C. § 1408 addresses what
contractual commitments a veteran may make to his or her spouse in a
negotiated property settlement incident to divorce. Rather, the statute in
this regard limits what divisions a state court may impose based on
community property laws.
Neither Howell nor Mansell confronted the intersection of 10
U.S.C. § 1408 and such contractual issues, and the Court intimated that
such contractual duties lay beyond the federal preemption in this regard, as
.Mansell observed that whether res judicata applies to a divorce decree in
circumstances such as these is a matter for a state court to determine and
over which the United States Supreme Court lacks jurisdiction. See 490
U.S. at 586 n.5. And indeed, the Supreme Court's treatment of Mansell
after remand is instructive. Where Mansell reversed a state court order
reopening a settlement and dividing military benefits as community
SUPREME COURT
OF
NEVADA
10
(0) 1947A CEGROD
property, id. at 586 n.5, 594-95, the state court on remand reached the same
distribution of assets on res judicata grounds, as the parties also had
stipulated to the division of gross retirement pay, and the Supreme Court
denied certiorari from this amended disposition, In re Marriage of Mansell,
265 Cal. Rptr. 227, 233-34 (Ct. App. 1989), cert. denied, 498 U.S. 806 (1990).
Similarly, this court has observed that "[a]lthough states cannot divide
disability payments as community property, states are not preempted from
enforcing orders that are res judicata or from enforcing contracts or from
reconsidering divorce decrees, even when disability pay is involved."
Shelton v. Shelton, 119 Nev. 492, 496, 78 P.3d 507, 509 (2003) (footnotes
omitted). This aligns with the majority practice in state courts following
Mansell. Foster v. Foster, 949 N.W.2d 102, 124 (Mich. 2020) (Viviano, J.,
concurring) (recognizing that "[a] strong majority of state court cases
likewise hold that military benefits of all sorts can be divided under the law
of res judicata" (alteration in original) (internal quotation marks omitted)).
Accordingly, we conclude that federal law does not prevent Nevada courts
from enforcing Raina and Erich's settled divorce decree. Cf. Jones, 505 P.3d
at 230 (concluding that Howell does not prevent courts from enforcing
indemnification provisions in negotiated property settlements).
Nevada law requires enforcement of the decree of divorce
As federal law does not preempt enforcement of the divorce
decree, we turn to analysis under Nevada law. Erich argues the
reimbursement provision of the divorce decree is unenforceable on contract
grounds and that the district court erred by enforcing the decree through
the doctrine of res judicata. In this regard, he contends this court should
SUPREME COURT
OF
NEVADA
(0) 1947A 441414
11
revisit Shelton, contending that the decision is incompatible with federal
law concerning veterans' disability benefits.6
Divorce decrees that incorporate settlement agreements are
interpreted under contract principles, Shelton, 119 Nev. at 497-98, 78 P.3d
at 510, and are subject to our review de novo, May v. Anderson, 121 Nev.
668, 672, 119 P.3d 1254, 1257 (2005). See also Grisham v. Grisham, 128
Nev. 679, 685, 289 P.3d 230, 234 (2012) (providing that an agreement
between parties to resolve property issues pending divorce litigation is
governed by general contract principles). An enforceable contract requires
"an offer and acceptance, meeting of the minds, and consideration." May,
121 Nev. at 672, 119 P.3d at 1257. "Parties are free to contract, and the
courts will enforce their contracts if they are not unconscionable, illegal, or
in violation of public policy." Rivero v. Rivero, 125 Nev. 410, 429, 216 P.3d
213, 226 (2009), overruled on other grounds by Romano v. Romano, 138
Nev., Adv. Op. 1, 501 P.3d 980 (2022).
Res judicata, or claim preclusion, applies when "[a] valid and
final judgment on a claim precludes a second action on that claim or any
part of it." Univ. of Nev. v. Tarkanian, 110 Nev. 581, 599, 879 P.2d 1180,
1191 (1994), holding modified on other grounds by Exec. Mgmt., Ltd. v. Ticor
Title Ins. Co., 114 Nev. 823, 963 P.2d 465 (1998). This court applies a three-
6 Erich also argues the decree is unenforceable because he did not
voluntarily sign the divorce decree. We decline to address this argument
because we find no support in the record for Erich's claim that he opposed
the division of retirement pay and benefits, and Erich does not identify any
supporting evidence. See NRAP 28(e)(1) (requiring citations to the record
to support every assertion); cf. Edwards v. Emperor's Garden Rest., 122 Nev.
317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating this court need not
consider claims that a party does not cogently argue or support with
relevant authority).
SUPREME COURT
op
NEVADA
PI I947A ceito
12
part test to determine whether res judicata applies: "(1) the parties or their
privies are the same, (2) the final judgment is valid, and (3) the subsequent
action is based on the same claims or any part of them that were or could
have been brought in the first case." Five Star Capital Corp. v. Ruby, 124
Nev. 1048, 1054, 194 P.3d 709, 713 (2008) (footnote omitted), holding
modified on other grounds by Weddell v. Sharp, 131 Nev. 233, 350 P.3d 80(2015). Generally, after parties settle or stipulate to a resolution, "a
judgment entered by the court on consent of the parties" "is as valid and
binding a judgment between the parties as if the matter had been fully
tried, and bars a later action on the same claim or cause of action as the
initial suit." Willerton v. Bassham, 111 Nev. 10, 16, 889 P.2d 823, 826
(1995). As Mansell acknowledges, res judicata as applied to divorce
agreements is a state law issue. 490 U.S. at 586 n.5. The application of res
judicata, or claim preclusion, is a question of law we review de novo. Kuptz-
Blinkinsop v. Blinkinsop, 136 Nev. 360, 364, 466 P.3d 1271, 1275 (2020).
This court has held that state courts may enforce divorce
decrees as res judicata even if those decrees involve distributions of military
disability pay. Shelton, 119 Nev. at 496-97, 78 P.3d at 509-10. In Shelton,
this court considered a divorce decree designating a veteran husband's
military retirement pay and disability benefits as community property. Id.
at 494, 78 P.3d at 508. The parties agreed that the husband would receive
$500 as half of his retired pay and $174 in disability pay and that the wife
would receive $577 as the other half of the retirement pay. Id. After the
husband was deemed fully disabled, he waived his military retirement
benefits and stopped paying the wife. Id. The wife moved to enforce the
divorce decree and sought the agreed-upon $577. Id. This court concluded
that the parties clearly contracted for the husband to pay the wife $577 each
SUPREME COURT
OF
NEVADA
13
(0) I947A .421D,
month and enforced that obligation as res judicata. Id. at 497-98, 78 P.3d
at 510-11 (explaining that the parties agreeing to a payment of $577 a
month was more specific than simply "one-half' and that this amount was
more than the amount the husband would receive from just the military
retirement-specific pay). The court determined that Mansell and its
progeny did not preclude enforcing the husband's obligations pursuant to
the divorce decree. Id. at 495-96, 78 P.3d at 509. It observed that the
husband may satisfy his contractual obligations with whatever monies he
wished, even if that involved using disability pay. Id. at 498, 78 P.3d at
510-11.
Here, Erich and Raina engaged in negotiations, which were
reduced to a signed settlement agreement and incorporated into the divorce
decree. This created a valid, unambiguous contract between the parties.
The divorce decree provided that Erich would reimburse Raina in the event
that her share of the retirement benefits was reduced by Erich's decision to
accept military disability payments. This indemnification provision may be
enforced through contract principles, consistent with Shelton's embrace of
contract law to govern a military disability indemnification provision in a
divorce decree. The provision at issue is unambiguous and requires Erich
to reimburse Raina for her share of any amount he elects to waive from his
retirement pay.
We conclude that res judicata applies, and the obligations set
forth in the decree cannot now be relitigated because Raina and Erich are
the same parties in the matter, the divorce decree is a valid final judgment,
and the action here enforces the original decree without modifying it or
introducing matters that could not have been addressed initially. Cf.
Mansell, 265 Cal. Rptr. at 229, 236-37 (precluding challenge to distribution
SUPREME COURT
OF
NEVADA
(0) 194TA
14
of disability pay where husband stipulated to its inclusion in property
settlement and declining to reopen and modify settlement); In re Marriage
of Weiser, 475 P.3d 237, 246, 249, 252 (Wash. Ct. App. 2020) (affirming
enforcement of divorce decree under res judicata where lower court enforced
the original terms and did not modify its property disposition and rejecting
argument that Howell barred distribution of military disability pay).
Accordingly, we find no reason to depart from our decision in Shelton. And
we therefore conclude the district court properly enforced the divorce decree
under contract principles and res judicata.
The district court did not abuse its discretion in awarding pendente lite
attorney fees
Erich argues that the district court abused its discretion by
awarding Raina $5000 for pendente lite attorney fees. He contends the
district court erred by not engaging in a Brunzell7 analysis and that the
court did not follow NRS 125.040. Raina argues that the district court
properly awarded the attorney fees for the appeal pursuant to NRS 125.040
and Griffith v. Gonzales-Alpizar, 132 Nev. 392, 395, 373 P.3d 86, 89 (2016),
because it was within the district court's discretion to award her these fees
after the court found a significant income disparity between the two parties.
"In any suit for divorce the court may . . . require either party
to pay moneys necessary . . . No enable the other party to carry on or defend
such suit." NRS 125.040(1)(c). The court must consider the financial
situation of each party before making such an order. NRS 125.040(2). Even
7 Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31,
33 (1969) (providing four factors for courts to consider when determining
the reasonable value of attorney fees: "the qualities of the
advocateU . . . the character of the work[,] ... the work actually
performed [,1 . . . [andl the result" (emphases omitted)).
SUPREME COURT
OF
NEVADA
(0) I 947A
15
so, "a party need not show necessitous circumstances in order to receive an
award of attorney fees under NRS 125.040." Griffith, 132 Nev. at 395, 373
P.3d at 89 (internal quotation marks omitted). Attorney fees awarded
under NRS 125.040(1)(c) are "pendente lite" because they cover fees in an
ongoing divorce suit. See Pendente Lite, Black's Law Dictionary (11th ed.
2019) ("During the proceeding or litigation; in a manner contingent on the
outcome of litigation."). We review an award of pendente lite attorney fees
for an abuse of discretion. See Griffith, 132 Nev. at 395, 373 P.3d at 89.
"[Ain award of attorney fees in divorce proceedings will not be overturned
on appeal unless there is an abuse of discretion by the district court." Miller
v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005).
After Erich filed the initial appeal, Raina moved for pendente
lite attorney fees and costs, requesting the district court award her $20,000
to defend against the appeal. The court considered the financial
circumstances of both parties and found that "Erich's income currently is
about three times as high as Raina's income." The court highlighted that
Raina's income had been reduced by COVID issues while Erich was still
making his full-time income and that Raina would therefore be more
financially impacted by the proceedings. At the same time, the court
recognized that Raina's household expenses were reduced by her domestic
partner but also noted that her domestic partner was not obligated to assist
Raina in paying for these legal proceedings. After considering these
circumstances, the court declined to award Raina all attorney fees sought
and instead ordered Erich to contribute $5000 to Raina's pendente lite
attorney fees.
SUPREME COURT
OF
NEVADA
(0) 1947A ctlAt.
16
We ascertain no abuse of discretion in this decision. The district
court properly considered the financial circumstances of each of the parties
before ordering attorney fees pursuant to NRS 125.040, and the record
supports its findings as to the income disparity between the parties.
Further, we conclude that the district court was not required to apply the
Brunzell factors because Brunzell requires analysis of attorneys' services
provided in the past. See 85 Nev. 345, 349, 455 P.2d 31, 33 (1969). In
contrast, here the district court was considering prospective appellate work
to award attorney fees. See Griffith, 132 Nev. at 395, 373 P.3d at 88
(distinguishing a decision addressing attorney fees for a previous matter
rather than a prospective appeal as was properly within the scope of NRS
125.040); Levinson v. Levinson, 74 Nev. 160, 161, 325 P.2d 771, 771 (1958)
(observing that attorney fees awarded pursuant to NRS 125.040
contemplate prospective expenses and should not reflect the attorneys' work
already performed or expenses already incurred). Therefore, we affirm the
district court order awarding pendente lite attorney fees to Raina.
CONCLUSION
Under federal law, state courts may not treat disability pay as
community property that may be divided in allocating the parties' separate
property. This prohibition does not prevent state courts, however, from
enforcing an indemnification provision in a negotiated property settlement
as res judicata. As res judicata applies to the divorce decree at issue here,
we conclude the district court properly ordered its enforcement. We further
conclude that the award of pendente lite attorney fees does not require
showing that the Brunzell factors are satisfied and that the district court
SUPREME COURT
OF
NEVADA
17
(0) 1947A 440:1.
did not abuse its discretion in awarding pendente lite attorney fees. We
affirm.
tCQ J.
Stiglich
We concur:
, C.
Parraguirre
Hardesty
J.
Herndon
SUPREME COURT
OF
NEVADA
18
(:)) 1947A
CADISH, J., with whom PICKERING, J., agrees, concurring:
I agree with the majority that, under our state law principles of
res judicata, or claim preclusion, Erich's challenge to the parties' divorce
decree is barred, and I would affirm the district court decision on that basis.
However, I write separately because I disagree that the Howell and Mansell
cases are otherwise distinguishable or that the fact the parties here entered
into a settlement agreement that was later incorporated into the divorce
decree prevents the indemnification provision at issue from being
preempted under the Uniformed Services Former Spouses' Protection Act,
10 U.S.C. § 1408 (2018) (USFSPA).
In this case, during their underlying divorce proceedings, the
parties reached a marital settlement agreement at a mediation that
included provisions by which Erich and Raina would each receive their
portion of Erich's military retirement when he retired, based on a
calculation of the community property interest therein. It further stated,
"Should [Erich] elect to accept military disability payments, [Erich] shall
reimburse [Raina] for any amount her amount of his pension is reduced due
to the disability status from what it otherwise would be." The divorce decree
subsequently entered by the district court provided in pertinent part,
"Raina shall be awarded the following[:] ... One-half (1/2) of the marital
interest in the [sic] Erich's military retirement . . . . Should Erich select to
accept military disability payments, Erich shall reimburse Raina for any
amount that her share of the pension is reduced due to the disability
status." The section of the decree awarding property to Erich has a similar
provision, including verbatim the last sentence requiring reimbursement by
Erich for any reduction in Raina's share of the pension due to his acceptance
of disability benefits. These provisions in the decree are contrary to federal
SUPREME COURT
OF
NEVADA
(0) 1947A clam
law and preempted, under the USFSPA and decisions of the United States
Supreme Court interpreting it.
In Mansell v. Mansell, 490 U.S. 581, 594-95 (1989), the
Supreme Court held "that the Former Spouses' Protection Act does not
grant state courts the power to treat as property divisible upon divorce
military retirement pay that has been waived to receive veterans' disability
benefits." Then in Howell v. Howell, 581 U.S. „ 137 S. Ct. 1400, 1406
(2017), the Supreme Court reiterated this holding, emphasizing that
describing the order as just requiring the military spouse to "reimburse" or
"indemnify" the nonmilitary spouse for a reduction in retirement pay as a
result of such waiver does not change the outcome, as "Mlle difference is
semantic and nothing more." The Court specifically noted that the
indemnification there was a "dollar for dollar" payment of the "waived
retirement pay." Id. In concluding this portion of its analysis, the Court
stated, "Regardless of their form, such reimbursement and indemnification
orders displace the federal rule and stand as an obstacle to the
accomplishment and execution of the purposes and objectives of Congress.
All such orders are thus pre-empted." Id. (emphasis added).
The majority attempts to distinguish Mansell and Howell
because those cases did not "involveH the parties agreeing to an
indemnification provision in the divorce decree property settlement." Maj.
Op., ante at 8. The majority also says that these cases do not deal with the
interplay between the USFSPA and "such contractual issues." Id. at 10.
However, this ignores that the Mansell case did involve a divorce where the
parties "entered into a property settlement which provided, in part, that
Major Mansell would pay Mrs. Mansell 50 percent of his total military
retirement pay, including that portion of retirement pay waived so that
SUPREME COURT
OF
NEVADA
(0) I947A
2
Major Mansell could receive disability benefits." 490 U.S. at 585-86.
Several years later, Major Mansell asked to modify the divorce decree
incorporating this provision to remove the requirement to share the
disability portion of his retirement pay. Id. at 586. Although the decree
provision at issue had been agreed to by the parties as part of their property
settlement, the Court nevertheless held it was preempted by the USFSPA.
Id. at 587-95.
Further, as discussed above, the Court made clear in Howell
that calling it "indemnification" rather than a division of community
property did not avoid the preemptive effect of the USFSPA. 581 U.S. at
, 137 S. Ct. at 1406. The fact that the disability election came after the
divorce decree was finalized, as in the instant case, also did not change that
outcome. Id. at , 137 S. Ct. at 1404-06. The Howell Court thus
acknowledged that, at the time of divorce, the parties may consider that the
value of future military retirement pay may be less than expected should
an election for disability pay be made, but simultaneously held that state
courts may not account for this contingency by ordering reimbursement or
indemnification if that occurs. Id. at , 137 S. Ct. at 1405-06. The Court
held the following:
[A] family court, when it first determines the value
of a family's assets, remains free to take account of
the contingency that some military retirement pay
might be waived, or . . . take account of reductions
in value when it calculates or recalculates the need
for spousal support.
We need not and do not decide these matters,
for here the state courts made clear that the
original divorce decree divided the whole of John's
military retirement pay, and their decisions rested
entirely upon the need to restore Sandra's lost
SUPREME COURT
OF
NEVADA
(0) 1947A .61)11,4
3
portion. Consequently, the determination of the
Supreme Court of Arizona must be reversed.
Id. at , 137 S. Ct. at 1406 (citations omitted).
Similarly, here, the provision of the divorce decree at issue
discusses the division of the parties' assets and is in an entirely separate
section than that covering spousal support, or alimony, as they are separate
concepts under Nevada law. See NRS 125.150(1)(a) (providing for a
permissible award of alimony); NRS 125.150(1)(b) (providing for an equal
division of community property between parties to a divorce). The
indemnification provision is not based on the factors appropriate for
consideration in awarding spousal support, see NRS 125.150(9) (listing 11
nonexhaustive factors that must be considered in determining whether, and
in what amount, to award alimony), but instead is designed to restore
Raina's "lost portion" of Erich's military retirement pay, a community
property asset. This is exactly what the Court has said is prohibited, and
thus a family court may not enter this type of divorce decree provision
because it is preempted by federal law.
The majority asserts that "[13j37 its plain language, nothing in
[the USFSPA] addresses what contractual commitments a veteran may
make to his or her spouse in a negotiated property settlement incident to
divorce." Maj. Op., ante at 10. But Raina here does not seek to enforce a
private contract or assert a claim for breach of a contract; rather, as the
majority notes, she "moved to enforce the divorce decree." Id. at 4. In
response to her motion, "the district court issued an order enforcing the
divorce decree." Id. Indeed, the majority's analysis of the applicability of
res judicata principles acknowledges that this case involves enforcement of
a "final judgment [that] is valid." Id. at 13 (quoting Five Star Capital Corp.
v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008)). Thus, the question
SUPREME COURT
OF
NEVADA
(0) 1947A 4ZIP
4
is not whether a private contract can be enforced, but whether a court-
entered judgment can be enforced. And the Supreme Court has made clear
that such judgments are contrary to federal law and thus preempted, even
when containing provisions agreed to by the parties. A state court cannot
enter an order that is contrary to federal law—and would thus be
preempted—simply because it is entered based on the parties' settlement
agreement. Mansell, 490 U.S. at 587-95 (holding preempted enforcement of
a divorce decree provision based on the parties' settlement requiring
payment of half of the military spouse's retirement pay and any portion of
the retirement pay waived to receive disability benefits). To the extent we
held to the contrary in Shelton v. Shelton, 119 Nev. 492, 78 P.3d 507 (2003),
it must be overruled in light of Mansell and Howell.' See State v. Lloyd, 129
Nev. 739, 750, 312 P.3d 467, 474 (2013) (discussing that a decision may be
overturned if it has proven "badly reasoned" or "unworkable" (internal
quotation marks omitted)); Armenta-Carpio v. State, 129 Nev. 531, 535-36,
306 P.3d 395, 398-99 (2013) (recognizing that precedent may be overturned
based on clearly erroneous reasoning).
The majority incorrectly conflates the application of preemption
principles to enforcement of the provision in the divorce decree and their
application to res judicata or claim preclusion. While the Mansell Court
recognized that the application of res judicata principles to the parties'
divorce settlement was a matter of state law, 490 U.S. at 586 n.5, the ability
to treat disability benefits as divisible even when based on a settlement
'While Shelton also alluded to res judicata principles to support its
decision, 119 Nev. at 496, 78 P.3d at 509 (holding that "states are not
preempted from enforcing orders that are res judicata"), it provided no
analysis of its application to that case. However, I agree that such
principles would appear to be applicable in that case.
SUPREME COURT
OF
NEVADA
(0) I947A
5
agreement was entirely a matter of federal law since it was preempted by
the USFSPA, id. at 594-95. As the SupreMe Court of Michigan held in
Foster v. Foster, while "the Offset provision iri the parties' corisent ju.dgment
of divorCe impermissibly divides defendant's military disability pay in
violation of federal law," "the• doCtrine of res judicata applies even if the
prior judgment rested on an invalid legal principle," and "a divorce d..ecree
which has become final may not have its property settlement provisions
modified .except for fraud or for other such cauees a.s any other final deeree
may be modified." No. 161892, 2022. WL .1.020390, at *6-7 (Mich. Apr. '5,
2022), (quäting, in the last clause, Pierson v. .Pierson, 88 N.W.2d 500, 504
(1958))., Similarly, under Nevada law, larl -decree of divorce cannot be
modified or set aside Occept as provided by rule or statute." Kramer v.
Kram.er, 96 Nev. 759, 761, 616 P.2d 395, 3-97 (1980). Thus, while the
indemnifiCation provision in the divorce decree is an impermissible division
of military disability pay. in violation of federal law, I agree . with the
majority that .Erich may not now collaterally attack the decree,*which has
become final. I thus concur in the majority's decision to affirrn.
,
I cbneur:
el
SUPREME COURT
OF
NEVADA
6
(0) l947A