Rivas v. Pena-Hernandez ( 2014 )

 court did not have jurisdiction to grant a divorce, award spousal support,
or divide community property, including real and personal property
located in El Salvador. "[C]omity is a principle whereby the courts of one
jurisdiction may give effect to the laws and judicial decisions of another
jurisdiction out of deference and respect." Mianecki v. Second Judicial
Dist. Court, 99 Nev. 93, 98, 658 P.2d 422, 424-25 (1983). Although it is
within the district court's sound discretion whether to recognize a foreign
judgment as a matter of comity, see id. at 98, 658 P.2d at 425, a Nevada
court is not required to recognize a judgment when there is a showing that
due process was not followed in the rendering state, such as when service
was improper. Gonzales-Alpizar v. Griffith, 130 Nev. , , 317 P.3d
820, 826-27 (2014).
Here, the district court found that respondent was not
properly served with the El Salvador complaint. Appellant served
respondent by publication, which is generally permissible when the
whereabouts of the responding party are unknown. NRCP 4(e)(1)(i). The
record indicates, however, that appellant was not only aware of
respondent's whereabouts in Nevada, but that he was in contact with her
and did not inform her of the proceedings in El Salvador. Thus, the
district court did not abuse its discretion in declining to recognize the El
Salvador divorce decree under the principle of comity. We further
conclude that the district court had authority to determine the parties'
rights as to property located in El Salvador. See Buaas v. Buaas, 62 Nev.
232, 236, 147 P.2d 495, 496 (1944) (holding that a court of equity may
indirectly act upon real estate in another jurisdiction through its authority
over the person).
Appellant also challenges the district court's decision dividing
the community property and awarding respondent spousal support and
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attorney fees. As to the community property, it must be divided equally,
unless the court finds a compelling reason to make an unequal division
and sets forth those reasons in writing. NRS 125.150(1)(b). Here, the
record shows that the district court equally divided the property between
the parties, and the court awarded the Nevada residence, with its
encumbrances, to respondent. Additionally, the court properly awarded
respondent a share of appellant's pension in accordance with Fondi v.
Fondi, 106 Nev. 856, 859-61, 802 P.2d 1264, 1265-68 (1990).
As for spousal support, a court may award such spousal
support as it considers "just and equitable." NRS 125.150(1)(a); Sprenger
v. Sprenger, 110 Nev. 855, 859, 878 P.2d 284, 287 (1994). Here, the
district court awarded respondent $500 per month in spousal support for
12 years, based on the length of the marriage and the parties' disparity in
incomes and earning capacities. NRS 125.150(8). And while appellant
argues that the district court improperly attributed an income to him that
was greater than his actual earnings, he had several opportunities to
provide the required evidence to the court and he failed to do so.
Therefore, the district court did not abuse its discretion in determining
appellant's income based on respondent's evidence. See Thurston v.
Thurston, 87 Nev. 365, 367, 487 P.2d 342, 343 (1971) (finding the district
court's reliance on the husband's proof of asset value proper when the wife
failed to provide any contrary evidence). To the extent that appellant
claims that his income has recently changed, however, he may file a
motion in the district court to modify spousal support based on a change in
income. See NRS 125.150(7), (11).
Finally, appellant challenges the district court award of
$2,500 in attorney fees to respondent. In opposition, respondent argues
that the district court had the authority to make the fees award, and that
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the factors under Brunzell v. Golden Gate National Bank, 85 Nev. 345,
349, 455 P.2d 31, 33 (1969), justify the award, but respondent fails to
address whether the district court properly analyzed and applied the
Brunzell factors. Having reviewed the record, we conclude that the
district court failed to consider the Brunzell factors when making this
award. Miller v. Wilfong, 121 Nev. 619, 623-24, 119 P.3d 727, 730 (2005)
(holding that a district court must evaluate the Brunzell factors when
awarding attorney fees).
Accordingly, we reverse the portion of the district court order
as to attorney fees, and we remand the matter to the district court for
further proceedings in light of Brunzell. We affirm the district court's
order in all other respects.
It is so ORDERED.'
, J.
Hardesty
, J. J.
cc: Chief Judge, The Eighth Judicial District Court
Hon. Nancy A. Becker, Senior Judge
Rutillo Rivas
Enrique R. Acuna
Eighth District Court Clerk
'In light of this disposition, we deny as moot appellant's proper
person motion for a stay. Additionally, we grant the motion to withdraw
filed by respondent's counsel on March 27, 2014. We further deny any
relief requested in appellant's April 1, 2014, proper person document.
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