In re Isaac

1

ANTONIOS ISAAC, Appellant/Cross-Respondent, v. RAND A ISAAC, Respondent/Cross -Appellant.

No. 83055

Supreme Court of Nevada

October 26, 2023

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

STIGLICH, C.J.

This is an appeal and cross-appeal from various district court orders in a divorce action. Eighth Judicial District Court, Family Division, Clark County; Mary D. Perry, Judge.^[1]

Appellant/cross-respondent Antonios Isaac (Tony) challenges the district court's Findings of Fact, Conclusions of Law and Order regarding enforcement of the parties' divorce agreement-the Memorandum of Understanding (MOU)-as well as post-judgment orders denying his requests for attorney fees and costs reimbursements, and spousal support modification.

Respondent/cross-appellant Randa Isaac challenges enforcement of the MOU, the district court's divorce decree, and a post-judgment order granting in part and denying in part Randa's motion to alter or amend the divorce decree and denying her motion for a new trial.

In 2019, Randa filed for divorce. Tony, Randa, and their son Jon Isaac, met for a settlement conference and following two days of negotiations, the parties executed the MOU resolving distribution of the community assets and debts, including debts owed to Jon. Both parties were represented by counsel at the settlement conference, and six individuals signed the MOU: Randa, Tonv, Jon, Randa's counsel, Denise Gallagher and Rhonda Mushkin, and Tony's counsel, Jennifer Abrams. Randa repudiated the agreement hours after it was executed through an email to Mushkin stating she did not want to go through with the deal. Thereafter, Tony filed a motion to enforce the MOU and requested a decree of divorce.

The district court held a bench trial on enforcement of the MOU. At trial, the district court heard testimony from all six individuals that were present during the execution of the MOU, as well as from Randa's therapist. On December 1, 2020, the district court entered its written Findings of Fact, Conclusions of Law and Order granting Tony's motion to enforce the MOU.^[2]At that time, the district court declined to enter a divorce decree pending an affidavit from Tony that he resided in Nevada. The district court also denied Tony's request for attorney fees and costs as the prevailing party in enforcing the MOU.

Tony filed a motion for additional findings and reconsideration of the portion of the December 1, 2020, order denying his request for attorney fees and costs. The same day, Randa filed a motion to alter and/or amend, clarify or reconsider the December 1, 2020, order. At a subsequent hearing, the district court found the only outstanding issue was the status of the marriage, which was cured by Tony's filing of an affidavit of residency that day. Accordingly, the district court entered the decree of divorce in February 2021, which incorporated and merged the MOU into the decree. In addition, the district court entered four other bench orders, which included three orders on matters that were outstanding: Order After Hearing March 7, 2019; Order After Hearing January 28, 2020; and Order After Hearing February 4, 2021.

In March 2021, Randa filed a motion to alter and/or amend the decree of divorce, the Order After Hearing March 7, 2019, and the Order After Hearing January 28, 2020, as well as a motion for a new trial. Tony filed a countermotion to enforce the decree and MOU, and sought a reduction in spousal support, as well as reimbursement of expenses paid prior to the decree. In June 2021, the district court entered a written order granting in part, and denying in part, the motions. This appeal and cross-appeal followed.

The district court did not err by enforcing the MOU

Randa asserts that the MOU was unconscionable and against the law because it omitted marital assets.^[3] Tony, however, argues that the district court correctly found the MOU to be a complete, valid, and enforceable agreement.

Settlement agreements are interpreted under contract principles and are reviewed de novo. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). Whether a contract exists is a question of fact, and this court will defer to the lower court's findings if they are supported by substantial evidence. Id. at 672-73, 119 P.3d at 1257. An enforceable contract requires "an offer and acceptance, meeting of the minds, and consideration." Id. at 672, 119 P.3d at 1257. "Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy." Riuero v. Rivero, 125 Nev. 410, 429, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev. 1, 6, 501 P.3d 980, 984 (2022).

We conclude that the district court's factual findings regarding the MOU's validity are supported by substantial evidence, particularly where all six individuals who signed the MOU testified at trial. We further conclude that the assets Randa alleges were omitted from the MOU were disclosed on tax returns that were produced by Tony during discovery.

Therefore, we affirm the district court's Findings of Fact, Conclusions of Law and Order with respect to enforcement of the MOU.

The district court did not abuse its discretion by denying Tony's request for attorney fees and costs incurred in enforcing the MOU

Tony argues the district court erred by summarily denying his request for $217,787.56 in attorney fees and costs incurred following execution of the MOU, claiming he is entitled to attorney fees under NRS 18.010(2)(b). This court reviews a decision to award or deny attorney fees in divorce proceedings for an abuse of discretion. Miller v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005). Attorney fees and costs are not recoverable unless authorized by statute, rule, or contractual provision. Id. at 623, 119 P.3d at 730. NRS 18.010(2)(b) permits a court to award attorney fees to a prevailing party where an opposing party's claim "was brought or maintained without reasonable ground or to harass the prevailing party."

This court has further recognized that when considering an award of attorney fees in a family law matter, a district court must evaluate (1) the Brunzell factors,^[4] and (2) "the disparity in income of the parties." Miller, 121 Nev. at 623, 119 P.3d at 730; Wright v. Osburn, 114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998); Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969).

Though Tony prevailed in enforcing the MOU, the district court did not make a finding that Randa's claims regarding the MOU's enforceability were brought without reasonable ground or to harass Tony.

Furthermore, the district court discussed the parties' disparity in income and concluded this factor weighed against awarding attorney fees.^[5] Because there are adequate grounds upon which the district court based its decision, we cannot say the court abused its discretion in denying Tony's motion. Therefore, we affirm the district court's denial of attorney fees and costs.

The district court did not err by entering the divorce decree based upon the MOU

Randa argues that the district court erred in entering the divorce decree for several reasons. First, Randa asserts that the district court erred by entering the divorce decree because the MOU was incomplete as to spousal support. We disagree. Indeed, the MOU contained handwritten interlineations explaining that the precise terms of spousal support were unresolved and reserved for future discussion and negotiation. But the district court resolved any issues with the interlineations in the spousal support provision by noting in the divorce decree that spousal support would be subject to modification in accordance with Nevada law. Therefore, we conclude that the district court did not err in entering the divorce decree based upon the MOU.

Second, Randa claims the district court erred by failing to address the appreciation of community property assets under Kogod v. Cioffi-Kogod, 135 Nev. 64, 79, 439 P.3d 397, 409 (2019). Tony responds that Kogod does not apply here because the MOLT terminated community property interests prior to the entry of the divorce decree. We agree with Tony and conclude that Kogod is distinguishable from the instant case where the parties stipulated to a division of community assets. This is because Kogod addressed asset appreciation during an intermediary period between the district court's "oral pronouncement of the termination of [the] community property and the actual termination when the written divorce decree was entered." Id. (emphases added). Here, by contrast, the parties agreed to divide the community assets via the terms of the MOU, which was effective upon execution. Thus, Tony and Randa's community property interests had long been terminated by the time the district court entered the divorce decree. Therefore, we conclude that the district court did not err by failing to address any community asset appreciation post-execution of the MOU.^[6]

The district court did not abuse its discretion by granting in part, and denying in part, Randa's request to alter or modify the divorce decree

Tony claims the district court erred in changing the terms of the MOU by requiring Tony to pay Randa $120,000 in cash rather than as a down payment for a home in California as required by the MOU. We review a denial of a motion to alter or amend a judgment pursuant to NRCP 59(e) for an abuse of discretion. Panorama Towers Condo. Unit Owners' Ass'n v Hallier, 137 Nev. 660, 662, 498 P.3d 222, 224 (2021). This court has observed that "[a]n NRCP 59(e) motion to alter or amend a judgment may be appropriate to correct manifest errors of law or fact, address newly discovered or previously unavailable...