Maldonado v. Robles ( 2015 )

 Maldonado first alleges that the district court improperly
concluded that he abandoned any claim to four vehicles—an Oldsmobile
Bravada, a Chevrolet Astrovan, a Ford Ranger, and a Chevrolet S-10—
clothing and jewelry he valued at $3,000 to $4,000, a paycheck on his
person at the time of his arrest, and $10,000 in cash. To support its
conclusion of abandonment, the district court found the following: the
parties were married in 2002; and in 2006, Maldonado was convicted of
sexual assault of a child and lewdness with a child under age of fourteen
years. When the molestation was revealed, the parties ceased all
communication. In particular, Maldonado did not attempt to contact
Robles about his possessions at any time, did not ask her or anyone else to
preserve his belongings, and made no other provision for them. He first
attempted to claim the property six years later, in his answer to the
complaint for divorce. The record reflects that the foregoing facts are
undisputed. Substantial evidence thus supports the district court's
findings.
The Uniform Unclaimed Property Act does not apply to
personal property such as vehicles, clothing, and jewelry. NRS 120A.113;
NRS 120A.510. Therefore, common law governs the question of whether
he abandoned those possessions. "Whether a person has abandoned his
property is a question of intent, which we infer from words, acts, and other
objective facts." State v. Taylor, 114 Nev. 1071, 1078, 968 P.2d 315, 320
(1998). A court may infer intent to abandon "by conduct clearly
inconsistent with any intention to retain and continue the use or
ownership of the property." 1 Am. Jur. 2d Abandoned, Lost and
Unclaimed Property § 58 (2005).
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Lapse of time, together "with the failure to conduct sufficient
efforts to recover the property," may imply an intent to abandon. Id. § 59.
Whether an owner has failed to claim his property within a reasonable
time is ordinarily a question for the trier of fact. Id. § 55. Because the
record reflects that Maldonado never attempted to recover and in fact
never inquired about his vehicles, clothing, and jewelry for over six years,
until the divorce complaint was filed, we conclude that the district court
did not abuse its discretion by finding them abandoned.
The authority cited by Maldonado, Hawkins v. Mahoney, 990
P.2d 776 (Mont. 1999), is factually and legally inapposite. In that case,
Hawkins escaped prison and his personal property was packed in boxes,
labeled with his name, and placed in the prison storage room. Id. at 777-
78. He was apprehended two days later, and within the next month he
requested several times that his property be returned. Id. Subsequent to
his requests, prison officials allowed Hawkins to retrieve legal papers from
the boxes but refused him the rest of his personal property, which was
then destroyed or sold. Id. at 778. The court held that under those facts,
Hawkins had rebutted a presumption that he intended to abandon his
property. Id. at 780. The dissent noted that "the notion of a 'rebuttable
presumption" was a significant change to Montana law on abandonment.
Id. at 781. Nevada has not recognized such a rebuttable presumption, nor
do Hawkins's vastly distinct facts suggest a similar result in this case.
The Uniform Unclaimed Property Act would apply to the
payroll check Maldonado claims was given to Robles by the jail, as well as
the $10,000 in cash he alleges he left behind when arrested. NRS
120A.113(1). However, the district court found that Robles discarded the
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check as trash with Maldonado's other belongings, and that the cash did
not exist. In particular, the court found:
After Maldonado's arrest, Robles and her children vacated the
apartment the parties had shared. When she moved, Robles placed all of
Maldonado's possessions in a storage unit. The items she stored included
a plastic bag containing his clothing and items on his person at the time of
his arrest, which were given to her by the jail. According to Maldonado,
the bag also contained his final payroll check.
Robles paid to store Maldonado's possessions for five to six
months, then offered them to his family members, who declined and told
her to burn the property. Because she no longer wanted to pay storage
fees, she threw Maldonado's items away, receiving no compensation for
them. At this time, she disposed of the plastic bag she received from the
jail without opening it or handling or cashing a check. Maldonado
presented conflicting testimony about the source of the cash, alleging both
that he had saved it from earnings and that it was given to him by a
friend. Robles denied that the cash existed.
The district court found Robles's testimony credible regarding
these facts. "[J]udging the credibility of the witnesses and the weight to
be given to their testimony are matters within the discretion of the district
court." Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004)
(stating that where testimony was conflicting, district court was free to
reject testimony of one party). The record supports the district court's
findings and does not reflect an abuse of the court's discretion.'
'Maldonado attached to his appeal statement a copy of a canceled
check he claims is the payroll check at issue. However, he did not present
the check or any evidence relating to its endorsement in the district court.
continued on next page...
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Maldonado next argues that the district court erred by failing
to award him an equal distribution of the parties' community property to
the extent his share exceeds $2,000, the amount of restitution ordered by
the criminal court, which he admits has not been paid.
In Nevada, a court adjudicating a divorce shall make an equal
distribution of community property, "except that the court may make an
unequal disposition of the community property in such proportions as it
deems just if the court finds a compelling reason to do so and sets forth in
writing" its reasons. NRS 125.150(1)(b). We have held that marital
misconduct having an adverse economic impact on the other party is one
such "compelling reason" to deviate from the equal distribution standard.
Wheeler v. Upton-Wheeler, 113 Nev. 1185, 1189-90, 946 P.2d 200, 203
(1997).
In this case, the district court concluded that Maldonado's
misconduct had a continuing economic impact on Robles due to the need
for past and future counseling to address trauma resulting from his sexual
crimes against her daughters. The record further reflects that she
incurred lost wages and expense when she was requested to appear at
Maldonado's numerous criminal proceedings, that the trauma resulted in
medical bills for a hospitalization and medications, and that she was
required to move because the molestation had occurred in their residence.
...continued
Therefore, it may not be considered on appeal. Hooper v. State, 95 Nev.
924, 926, 604 P.2d 115, 116 (1979) ("Matters outside the record on appeal
may not be considered by an appellate court"); see NRAP 10(a) ("The trial
court record consists of the papers and exhibits filed in the district court.").
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Based on the record evidence and Wheeler, we conclude that the district
court did not abuse its discretion by finding a compelling reason to make
an unequal distribution of property.
The district court's decision is not invalidated by the criminal
court's prior order of restitution to the victims. In Major v. State, 130
Nev., Adv. Op. 70, 333 P.3d 235, 238 (2014), we held that an overlap may
exist between a family court's authority to impose an obligation and a
criminal court's authority to order restitution, even where arising from the
same occurrence, where one award is offset by the amount of the other.
The district court's order in this case does not run counter to Major
because there were no community assets to be distributed, thus the court's
‘`unequal" distribution of nothing was nothing. The court's findings of fact
regarding assets are as follows:
The Oldsmobile Bravada was purchased prior to the marriage
and titled to Robles alone, thus it was separate property. Robles did not
possess the Chevrolet Astrovan or Ford Ranger, which were titled in
Maldonado's name. When she moved from the apartment they shared,
following his arrest, the vehicles were in the apartment's parking lot, and
she does not know what happened to them thereafter. She received no
compensation for Maldonado's clothing and other personal property items,
which were rejected by his family and then discarded.
The district court further found that Robles had no
housecleaning business or any savings from housecleaning, thus there was
no business or income to be divided. Robles testified that she bought and
paid for the Chevrolet S-10 truck after Maldonado's arrest, and it was
titled in her name alone, thus he was not entitled to any of its value.
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Our review of the record reflects that substantial evidence
supports the district court's finding that there were no community assets
to be distributed and that, even if there were, an unequal distribution was
warranted. We cannot conclude that the district court abused its
discretion, and the record does not reveal that its findings are
unsupported by substantial evidence. Nor has Maldonado shown that the
district court's application of Nevada law was clearly erroneous.
Accordingly, for the reasons set forth above, we
ORDER the judgment of the district court AFFIRMED.
tdiai
Gibbons
cc: Hon. Chuck Weller, District Judge, Family Court Division
Greenberg Traurig, LLP/Las Vegas
Law Office of Thomas L. Qualls, Ltd.
Washoe District Court Clerk
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