Cruea v. Terry ( 2015 )

 the monthly child support payment. 2 This court affirms Judge Loehrer's
order in full, reverses the inconsistent parts of Judge Pollock's post-
judgment ruling, and remands the question of whether Judge Loehrer's
award of attorney fees was meant as a sanction.
Child support
Cruea argues 3 that the district court judges miscalculated the
parties' gross monthly income for child support purposes. 4 Gross monthly
Cruea argues that Judge Pollock applied the wrong standard of
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review when assessing Judge Loehrer's order. However, because we
uphold Judge Loehrer's findings of fact and conclusions of law, the
argument is moot.
3Additionally, Cruea argues that Terry is required to pay child
support arrears pursuant to NRS 125B.030. NRS 125B.030 states that a
parent with physical custody "may recover . . . the cost of care, support,
education and maintenance" from the other parent. The district court
judges found that Cruea presented inadequate evidence on the subject,
and we agree. Further, the law prior to a 2015 amendment gave the
mother "primary physical custody" where the mother and father were not
married and an order of paternity had not been entered. NRS 126.031,
repealed by 2015 Nev. Stat., ch. 445, § 19, at 2591. Here, Cruea and Terry
were not married, and there was no order determining paternity.
Moreover, Cruea cannot avail himself of NRS 126.031(2)(b)(1), because
there is no showing that Terry abandoned the child to the custody of
Cruea. For these reasons, we conclude that Cruea is not entitled to child
support arrears.
4 Cruea argues that both district court judges improperly determined
Terry's gross income because they failed to include the value of employer
retirement contributions and health care benefits. "A point not urged in
the trial court, unless it goes to the jurisdiction of that court, is deemed to
have been waived and will not be considered on appeal." Old Aztec Mine,
Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). At trial, Judge
Loehrer determined that Linda's gross monthly income was $5,196 per
month. Our review of the record indicates that Cruea did not dispute this
amount• until the post-judgment hearing. In the post-judgment order,
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income for a self-employed person is "the gross income from any source . . .
after deduction of all legitimate business expenses." NRS 125B.070(1)(a)
(emphasis added). The district court has discretion in determining what a
legitimate business expense is because "[afters of. . . support of minor
children rest in the sound discretion of the trial court." Wallace v.
Wallace, 112 Nev. 1015, 1019, 922 P.2d 541, 543 (1996).
Both district court judges set the amount Cruea owed by
determining both parents' gross monthly income, applying a support
obligation percentage to each income, and then subtracting the higher
support obligation from the lower support obligation. See NRS 125B.070;
NRS 125B.080. Judge Loehrer found that Cruea owed $1,049.94 per
month, which was over the statutory cap, so she held that Cruea was
obligated to pay the statutory cap of $925 per month. In the post-
judgment order, Judge Pollock reduced Cruea's payment obligation to
$754.44 per month. The district court judges arrived at different amounts
because they calculated Cruea's business related depreciation differently.
Cruea claimed a $43,332 depreciation expense on his 2012
taxes and argues that the entire amount should be excluded from his gross
income. Judge Loehrer did not account for any depreciation when
calculating Cruea's gross income. Judge Pollock subtracted $19,500 from
Cruea's gross yearly income, which was an insurance reimbursement for
...continued
Judge Pollock determined that because Cruea had failed to raise the claim
at trial, it was waived. We agree with Judge Pollock's determination on
this matter.
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destroyed equipment. 5 We agree with Judge Loehrer's determination as to
Cruea's gross income and disagree with Judge Pollock's post-judgment
determination and Cruea's argument.
Judge Loehrer did not exclude Cruea's depreciation from his
gross income because the "totality of the evidence presented and testimony
offered [demonstrated] that [Cruea's] position regarding his income [was]
not credible," he was unwilling to "voluntarily come forward with the
requested financial information," and engaged in "unorthodox and highly
irregular record keeping. . . and . . . herculean efforts to avoid discovery of
his true gross monthly income." Specific problems with Cruea's
depreciation expenses included Cruea taking depreciation in a computer
that his son used in school, numerous vehicles not being properly
accounted for, and failing to use a sinking fund. As such, this court
affirms Judge Loehrer's decision that the deductions are not "legitimate
business expenses," and therefore, agrees with Judge Loehrer's child
support calculations.
Attorney fees
"This court review[s] [the] district court's [award] of attorney
fees for abuse of discretion." Foster v. Dingwall, 126 Nev. 56, 72, 227 P.3d
1042, 1052 (2010). Judge Loehrer's order, entered on August 9, 2013,
stated that because of Cruea's behavior, attorney fees were warranted.
Terry did not move for attorney fees until September 12, 2013. Judge
5We conclude that Judge Pollock erred in finding that the $19,500
payment was attributable to depreciation. Cruea's 2012 tax return shows
that the $43,332 depreciation is composed of $14,500 in tentative
depreciation, $11,743 in depreciation for assets placed into service before
2012, and $17,089 in car depreciation.
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Pollock later found that an award of attorney fees was warranted and
awarded Terry $14,500 in attorney fees and costs.
"A claim for attorney fees must be made by motion . . . no later
than 20 days after notice of entry of judgment is served . . . ." NRCP
54(d)(2)(A)-(B). Terry's motion for attorney fees was made more than 20
days after Judge Loehrer's order was entered. As such, Judge Pollock
abused his discretion in awarding attorney fees. However, the language
used in Judge Loehrer's order stating that attorney fees were warranted
may have been intended as a sanction against Cruea. If that is the case,
then NRCP 54(d)(2)(B)'s 20-day time period would not apply. NRCP
54(d)(2)(C) ("Subparagraphs (A)-(B) do not apply to claims for fees and
expenses as sanctions pursuant to a rule or statute, or when the applicable
substantive law requires attorney fees to be proved at trial as an element
of damages."). EDCR 7.60(b) allows for such sanctions: "The court may,
after notice and an opportunity to be heard, impose upon an attorney or a
party any and all sanctions which may . . be reasonable." As such, we
remand to the district court to determine whether Judge Loehrer's award
of attorney fees was intended to be a sanction.
Accordingly, we
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ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
Gibbons
cc: Hon. Rena G. Hughes, District Judge
Robert E. Gaston, Settlement Judge
Willick Law Group
Bowen Law Offices
Eighth District Court Clerk
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