Ward v. Hoobler ( 2013 )

 misrepresented his ability to pay half of the community debt and that
appellant would not have agreed to waive spousal support if respondent
had been truthful about his financial situation. The district court denied
appellant's motion, concluding that no spousal support could be awarded
because it had been waived in the divorce decree and finding that the
bankruptcy stay prevented it from proceeding with the remaining issues.
On review of appellant's opening brief and the record, we
conclude that the district court abused its discretion in denying appellant's
motion to modify or set aside the divorce decree. See Cook v. Cook, 112
Nev. 179, 181-82, 912 P.2d 264, 265 (1996) (explaining that this court will
not disturb the denial of a motion to set aside a judgment under NRCP
60(b) absent an abuse of discretion). In particular, the district court
abused its discretion by concluding that appellant had waived alimony
without considering the merits of appellant's argument that NRCP 60(b)
relief was warranted because respondent had fraudulently misrepresented
his ability to pay his share of the community debts and because she would
not have agreed to waive spousal support if not for that misrepresentation.
See Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992)
(providing that a district court abuses its discretion when it fails to apply
the correct legal standard); see also, generally Cavell v. Cavell, 90 Nev.
334, 337, 526 P.2d 330, 331-32 (1974) (recognizing that a timely NRCP
60(b) motion may be appropriate to set aside a divorce decree). Moreover,
to the extent that appellant sought to create a spousal support obligation,
the bankruptcy stay did not prevent the district court from addressing
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that issue.' See 11 U.S.C. § 362(b)(2)(A)(ii) (Supp. 2010) (providing that
the automatic stay in bankruptcy actions does not stay "the
commencement or continuation of a civil action or proceeding . . . for the
establishment or modification of an order for domestic support
obligations"); see also Shin v. Shin, 27 P.3d 398, 401 (Haw. 2001)
(explaining that the automatic bankruptcy stay does not apply to the
portion of the divorce action regarding alimony, maintenance, or support
unless the party is attempting to collect alimony, maintenance, or support
from the bankruptcy estate). Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
(--ACetx-
Hardesty
__put J.
Parraguirre
J.
'While the district court properly concluded that it could not address
the property distribution and the motion for contempt while the
bankruptcy stay was in effect, we note that the district court incorrectly
concluded that appellant had failed to request that her $4,000 debt to
respondent be set aside, in her NRCP 60(b) motion.
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cc: Hon. Sandra L. Pomrenze, District Judge, Family Court Division
Michael A. Root
Michael Alan Hoobler
Eighth District Court Clerk
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