Bauer v. Bauer ( 2015 )

 under NRS 125.150(7), the court could not grant respondent a new form of
relief by awarding alimony for school expenses under NRS 125.150(9). See
NRS 125.150(1), (7); see generally NRCP 8 (explaining that claims for
relief should be set forward in a pleading); Five Star Capital Corp. v.
Ruby, 124 Nev. 1048, 1054-55, 194 P.3d 709, 713 (2008) (providing that
claim preclusion applies to all grounds of recovery that were or could have
been brought in the first case) Thus, because the district court lacked
authority to grant respondent a new form of alimony under NRS
125.150(9), we reverse the alimony award set forth in paragraphs 33-36 of
the district court Order After Evidentiary Hearing.'
The increase in periodic alimony set forth in paragraph 39 of
the Order After Evidentiary Hearing, however, was not an abuse of
discretion. Because periodic alimony was awarded in the divorce decree,
the district court retained jurisdiction to modify that award upon changed
circumstances. NRS 125.150(7). We conclude that the district court did
not abuse its discretion when it found changed circumstances and
modified respondent's periodic alimony. Gilman v. Gilman, 114 Nev. 416,
422, 956 P.2d 761, 764 (1998) (providing that this court reviews a
modification of spousal support award for an abuse of discretion).
Although the decree states that pay-down or satisfaction of the parties'
IRS debt may not be grounds to modify alimony, the changed
circumstances the district court relied on were independent of any pay-
down or satisfaction of the IRS debt.
'Because we find that the award of rehabilitative alimony was
improper, we do not address appellant's alternative argument that the
district court relied on an incorrect theory of indemnification regarding
the $10,000 tuition award.
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Appellant next argues that the district court abused its
discretion when it increased the duration of the alimony award by adding
nine-and-a-half years of alimony at $1.00 per year, for the purpose of
retaining jurisdiction over alimony to protect respondent from liability
arising from appellant's future noncompliance with the divorce decree.
Because respondent's alimony award contemplated appellant's assumption
of the IRS debt, retaining jurisdiction over alimony in light of the future
uncertainty of any IRS enforcement action was not an abuse of discretion.
See Holstein v. Holstein, 412 S.E.2d 786, 789-90 (W. Va. 1991) (upholding
a nominal alimony award made to retain jurisdiction when the wife's
health and ability to obtain health insurance was uncertain), overruled on
other grounds by Banker v. Banker, 474 S.E.2d 465 (W. Va. 1996); see also
Bird v. Bird, 312 P.2d 773, 774 (Cal. Ct. App. 1957) ("[The] question of
making a nominal award for the purpose of retaining jurisdiction to deal
with future possibilities is one which ... is committed to the sound judicial
discretion of the trial judge.").
Appellant additionally contends that the district court abused
its discretion when it required him to maintain a life insurance death
benefit sufficient to cover the parties' total IRS debt. This mandate was
not provided in the divorce decree and neither was such relief properly
requested by respondent. 2 A district court order may be modified under
2 The divorce decree provides: "[appellant] shall maintain
[respondent] as a beneficiary of the death benefit of such policy in an
amount sufficient to pay off his total child support and spousal support
obligations. . . . Moreover, [appellant] shall not designate any remaining
death benefit to any other beneficiary other than his own estate up to the
amount of the parties' joint obligation to the [IRS]." (emphasis added).
Although this language contemplates any remaining death benefit after
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NRCP 59 or NRCP 60(b), however here, no appropriate motion was made
and no such relief was requested. Accordingly, the portion of the district
court order requiring the life insurance policy death benefit to fully cover
the IRS debt was an abuse of discretion to the extent that it deviated from
the terms in the divorce decree. Fuller v. Fuller, 106 Nev. 404, 406, 793
P.2d 1334, 1336 (1990) ("The district court does not have jurisdiction to
modify a decree of divorce unless a rule or statute so provides."); see also
Wolff v. Wolff, 112 Nev. 1355,1360, 929 P.2d 916, 919 (1996) (noting that
unlike spousal support, an interest in community property is not subject to
modification) . 3
Finally, appellant challenges the district court's modification
of his child support obligation arguing that the district court failed to
make a finding that the children's needs were not being met by the
presumptive statutory maximum amount. The district court, however,
found that there was "good cause to deviate from the [child support] cap in
this case," and made findings regarding the appropriate factors under
NRS 125B.080(9). Thus, the district court did not abuse its discretion
when it increased appellant's child support obligation. Herz v. Gabler-
Herz, 107 Nev. 117, 118-19, 808 P.2d 1, 1 (1991) (holding that a district
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the support obligations are satisfied being available for the IRS debt, it
does not require the death benefit to fully cover the IRS debt.
3 Because the parties' divorce decree states that appellant will
maintain respondent as a beneficiary in the amount of his alimony and
child support obligation, the district court did not abuse its discretion
when it enforced this provision of the decree and ordered appellant to
provide documentation that respondent would be maintained as a
beneficiary before she signed the documents in question.
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court did not abuse its discretion in ordering an upward departure from
the statutory formula based on a factor other than increased need); Love
v. Love, 114 Nev. 572, 579-80, 959 P.2d 523,528 (1998).
For the reasons discussed above, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court to enter a new order consistent with our decision.
Gibbons
cc: Hon. Jennifer Elliott, District Judge, Family Court Division
Robert E. Gaston, Settlement Judge
Radford J. Smith, Chtd. D/B/A Smith & Taylor
Sterling Law, LLC
Eighth District Court Clerk
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