Griffith v. Gonzales-Alpizar , 2016 NV 38 ( 2016 )

132 Nev., Advance Opinion 36
IN THE SUPREME COURT OF THE STATE OF NEVADA
EDWIN GRIFFITH, No. 67772
Appellant,
vs. FILED
GABRIELA GONZALES-ALPIZAR,
Respondent. MAY 26 2016
TRAC1E K LtNDEMAN
CLE%0F UPREME COURT
BY >, Y
DEPUTY"
Appeal from a post-divorce decree order granting attorney fees
pendente lite for appeal costs. Second Judicial District Court, Family
Court Division, Washoe County; Egan K. Walker, Judge.
Affirmed.
Jeffrey Friedman, Reno,
for Appellant.
Richard F. Cornell, Reno,
for Respondent.
Kunin & Carman and Michael P. Carman and Israel L. Kunin, Las Vegas,
for Amicus Curiae.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PARRAGUIRRE, C.J.:
Under NRS 125.040(1)(c), a district court has discretion in a
divorce suit to require one party to pay an amount of money necessary to
assist the other party in carrying on or defending the suit. In this appeal,
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we are asked to determine whether this statute grants the district court
subject matter jurisdiction to award a party attorney fees pendente lite to
defend against an appeal. We hold that a district court does have
jurisdiction to award attorney fees pendente lite for the costs of an appeal
pursuant to NRS 125.040. Furthermore, we hold that the district court
did not abuse its discretion in awarding such fees in this case.
Accordingly, we affirm the district court's order."
FACTS AND PROCEDURAL HISTORY
Appellant Edwin Griffith and respondent Gabriela Gonzales-
Alpizar have been immersed in divorce litigation for almost ten years. In
2007, both parties obtained divorce decrees: Gonzales-Alpizar from a Costa
Rica court, and Griffith from a Nevada court. Much litigation ensued, and
in October 2014, Gonzales-Alpizar received a judgment for child support
arrears and penalties against Griffith in Nevada, as well as an award of
attorney fees. Griffith appealed the order, arguing that attorney fees
should not have been awarded and that the underlying Costa Rica order
was fraudulent. That appeal is currently before this court as Docket No.
66954.
In the meantime, Gonzales-Alpizar filed a motion for attorney
fees pendente lite in the district court to enable her to defend the appeal in
Docket No. 66954. The district court granted Gonzales-Alpizar's motion
and awarded her $15,000 for attorney fees pendente lite, and Griffith filed
this appeal. This court ordered that briefing in Docket No. 66954 remain
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
suspended until the issue concerning the district court's award of attorney
fees pendente lite was resolved.
DISCUSSION
In this appeal, Griffith argues that the district court did not
have subject matter jurisdiction to award attorney fees pendente lite for
the costs of an appeal, and, even assuming it did, it abused its discretion
in awarding such fees in this case. We disagree.
"Subject matter jurisdiction is a question of law subject to de
novo review." Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704
(2009). Furthermore, if "a statute's language is clear and unambiguous, it
must be given its plain meaning, unless doing so violates the spirit of the
act." D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 476,
168 P.3d 731, 737 (2007) (internal quotation marks omitted). "A statute is
ambiguous if it is capable of being understood in two or more senses by
reasonably well-informed persons." Id. "When construing an ambiguous
statute, legislative intent is controlling, and we look to legislative history
for guidance." Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev.
1298, 1302, 148 P.3d 790, 793 (2006). "Finally, we consider the policy and
spirit of the law and will seek to avoid an interpretation that leads to an
absurd result." Id. (internal quotation marks omitted).
NRS 125.040 reads in relevant part as follows: "1. In any suit
for divorce the court may, in its discretion. . . require either party to pay
moneys necessary to assist the other party in accomplishing one or more of
the following: . . . (c) To enable the other party to carry on or defend such
suit." (Emphases added.)
Fees awarded pursuant to NRS 125.040(1)(c) are considered
"pendente lite" because they cover the costs of the suit while the divorce
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action is pending. Pendente Lite, Black's Law Dictionary (10th ed. 2014)
("Pendente lite" is Latin for "while the action is pending."); see Thompson
v. First Judicial Dist. Court, 100 Nev. 352, 354, 683 F'.2d 17, 19 (1984)
(stating "evidence of the legislature's intent may be gleaned from the title
of the act by which the statute was enacted"); see also 1975 Nev. Stat., ch.
209, at 246 ("AN ACT relating to divorce; providing allowances during
pendency of action for . . . costs of suit. . .").
Although we conclude the phrase "suit for divorce" is
ambiguous, as it is unclear from the text of the statute whether the "suit
for divorce" includes appellate proceedings, we also conclude that this
court's precedent resolves the ambiguity and a divorce action is still
pending once an appeal has been filed. See Braddock v. Braddock, 91 Nev.
735, 743, 542 P.2d 1060, 1064 (1975) (stating a divorce action "is pending
from the time of filing the complaint until its final determination on
appeal"); cf. Fleming v. Fleming, 58 Nev. 179, 185, 72 P.2d 1110, 1112
(1937) (stating that, with regard to the 1929 equivalent of NRS 125.040, a
divorce action remains pending after the entry of a divorce decree for some
purposes, such as modifications to child custody). Furthermore, such an
interpretation of NRS 125.040 serves public policy in ensuring that
underprivileged parties have access to justice in Nevada courts and may
obtain appellate review in divorce proceedings. See, e.g., Sargeant v.
Sargeant, 88 Nev. 223, 227, 495 P.2d 618, 621 (1972) (stating that parties
in a divorce action should "be afforded [their] day in court without
destroying [their] financial position" and that they "should be able to meet
[their] adversary in the courtroom on an equal basis"). Therefore, we hold
NRS 125.040 grants district courts subject matter jurisdiction to award
attorney fees pendente lite for the costs of an appeal.
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Moreover, we conclude Griffith's reliance on Lake v. Lake, 17
Nev. 230, 30 P. 878 (1882), and Korbel v. Korbel, 101 Nev. 140, 696 P.2d
993 (1985), is misplaced. The issue before the court in Lake was whether
this court, not the district court, had jurisdiction to award attorney fees
pendente lite. See Lake, 17 Nev. at 233-34, 30 P. at 879. Furthermore, the
Lake court did not discuss Section 220 of the Compiled Laws of the State
of Nevada, the nineteenth century equivalent to NRS 125.040. See 1 Nev.
Compiled Laws § 220 (Bonnifield and Healy, 1873) ("In any suit for
divorce now pending, or which may hereafter be commenced, the Court or
Judge may, in its discretion. . . require the husband to pay such sums as
may be necessary to enable the wife to carry on or defend such suit. . . .").
To the extent Lake discussed a district court's authority to award attorney
fees pendente lite, we conclude such dictum is unpersuasive.
As for Korbel, although this court stated that NRS 125.040
had "no application to an appeal," no analysis was provided and such a
holding contravenes both this court's precedent and the policy underlying
the statute. Korbel, 101 Nev. at 141, 696 P.2d at 994. Furthermore,
Korbel is materially distinct from this case, as Korbel dealt with attorney
fees for a previous appeal, not a prospective appeal. Id. at 142, 696 P.2d
at 994; see Levinson v. Levinson, 74 Nev. 160, 161, 325 P.2d 771, 771
(1958) ("That an order for allowances under [NRS 125.0401 must operate
prospectively has been well established in this state. Expenses incurred
and attorneys' services performed in the past are not proper
considerations.").
Finally, we conclude that the district court did not abuse its
discretion in awarding attorney fees pendente lite in this case. See Miller
v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005) (stating "an award
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of attorney fees in divorce proceedings will not be overturned on appeal
unless there is an abuse of discretion by the district court"). Although a
party need not show "necessitous circumstances" in order to receive an
award of attorney fees under NRS 125.040, Sargeant, 88 Nev. at 227, 495
P.2d at 621, Gonzales-Alpizar presented evidence that she earns $200 per
month. And despite the fact that the financial statement contained in the
record is several years old, the district court concluded that "Mr. Griffith's
financial records and previous testimony in this matter reveal assets
and/or earnings sufficient to warrant pendent[e] lite fees. . . ." Griffith's
financial records and hearing transcripts have not been brought up on
appeal, and thus, we assume the evidence supports the district court's
determinations. See Leeming v. Leeming, 87 Nev. 530, 532, 490 P.2d 342,
343 (1971) ("As appellant has not brought up the hearing transcript,
we must assume the evidence supported the court's implicit
determination{ I . . . that the $2,500 awarded as suit money was needed so
respondent might pay her counsel without diminishing the care the court
contemplated for the children."). 2
CONCLUSION
We hold that NRS 125.040 grants district courts subject
matter jurisdiction to award attorney fees pendente lite for the costs of an
appeal. Furthermore, we conclude that the district court did not abuse its
2Although we conclude that the district court did not abuse its
discretion in this instance, we caution that in the future, courts should
make more explicit factual findings regarding the financial condition of
the parties when awarding attorney fees pendente lite.
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discretion in awarding such fees in this case. Accordingly, we affirm the
order of the district court.
I 0--L-It C.J.
Parraguirre
We concur:
/jet,t. J.
Hardesty
I Or& J.
Douglas
Gibbons
J.
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