Mason v. Cuisenaire

128 P.3d 446

Jennifer Mae MASON, Executrix of the Estate of Rod E. Mason, Deceased, Appellant, v. Martine CUISENAIRE, Respondent.

No. 40338.

Supreme Court of Nevada.

February 9, 2006.

Beckley Singleton, Chtd., and Daniel F. Polsenberg and Beau Sterling, Las Vegas; Mario D. Valencia, Henderson, for Appellant.

Law Office of Marshal S. Willick, PC, and Marshal S. Willick, Las Vegas, for Respondent.

Before the Court En Banc.

OPINION

PARRAGUIRRE, J.

In this appeal, we consider whether the district court properly recognized a North Carolina divorce decree and which state's law should be applied in analyzing that decree. We also consider whether a retroactive award of child support may be awarded when the North Carolina decree made no provision for support. We conclude that the North Carolina divorce decree is entitled to full faith and credit and that North Carolina law controls analysis of the decree. We also conclude that because the North Carolina divorce decree made no provision for child support, there was no child support order entered, and therefore, North Carolina law applies and the district court may retroactively award support.

FACTS

While he was stationed in Belgium with the United States Air Force, appellant Rod Mason met and married respondent Martine Cuisenaire. They remained together for approximately eleven years, when Mason sought a divorce in North Carolina, where the parties were living. The couple's only child, A.M., was nine years old at the time.

In its September 9, 1999, judgment, the North Carolina trial court granted Mason an absolute divorce from Cuisenaire. Additionally, the judgment awarded Cuisenaire primary physical custody of A.M. and awarded Mason visitation every summer. The judgment also stated that "there are no pending claims for post-separation support, alimony, or equitable distribution." Immediately following the divorce, Cuisenaire and A.M. moved to Belgium. Mason eventually was stationed at Nellis Air Force Base in Las Vegas.

At the end of the summer of 2000, Mason failed to return A.M. to her mother's residence in Belgium as the divorce judgment mandated. Consequently, Cuisenaire filed an action in the Nevada federal district court under the Hague Convention and its implementing legislation, the International Child Abduction Remedies Act.¹ The federal district court determined that the North Carolina judgment awarded Cuisenaire primary physical custody of A.M., that Mason's retention of A.M. was wrongful, and ordered Mason to return the child to Belgium.

In February 2002, Cuisenaire moved the Nevada state district court for post-decree child support, alimony, division of assets, and attorney fees. Cuisenaire sought child support arrears from the date of the North Carolina judgment's entry to the date her motion was filed. She also sought the equitable division of the parties' marital estate as it existed at the time of the divorce. Mason countered that although Cuisenaire had told him that he did not have to pay child support, he had sent child support to Belgium through her brother.

After conducting a hearing, the Nevada district court held that Belgium had jurisdiction over all custody and visitation issues, that the district court had personal jurisdiction over Mason, and that Nevada was the proper venue for child support determinations. The court further determined that the North Carolina court never addressed child support and that, under NRS 125B.030, the district court could award up to four years of past support. The court also found that some omitted assets were not adjudicated in North Carolina, including Mason's military retirement benefits, the proceeds from the sale of a marital home in Louisiana, marital personal property, and a survivors benefit plan. The district court concluded that Cuisenaire was entitled to a portion of Mason's military retirement benefits and set Mason's future child support payments at $500 per month. It also awarded Cuisenaire $300 per month in child support arrears from October 1999, the month after the North Carolina decree was entered, to February 2002 and $500 per month from March 2002 to July 2002,² plus statutory penalties and interest. The award of child support arrears totaled $10,678.69, and the district court approved wage withholding in order to collect the arrears. Finally, the district court set an evidentiary hearing with respect to the allocation of debts or assets of the marital estate and denied Cuisenaire's request for alimony.

Mason timely appealed the district court's order before the evidentiary hearing was held. The district court suspended the evidentiary hearing pending the outcome of this appeal. Mason died during the appeal and Jennifer Mae Mason was appointed executrix of his estate.³

DISCUSSION

Because Cuisenaire failed to demonstrate the North Carolina judgment is invalid based on fraud, lack of jurisdiction, or lack of due process, it is entitled to full faith and credit

Mason argues that, absent a showing that the North Carolina judgment is invalid, the Full Faith and Credit Clause of the United States Constitution requires that the Nevada state district court respect the North Carolina judgment.

"The full faith and credit clause of the United States Constitution requires that a final judgment entered in a sister state must be respected by the courts of this state absent a showing of fraud, lack of due process or lack of jurisdiction in the rendering state."⁴ The district court order made no conclusions as to the validity of the North Carolina judgment and made no findings as to fraud, lack of due process or lack of jurisdiction by the North Carolina court. Accordingly, it appears that the district court implicitly determined that the North Carolina judgment was entitled to full faith and credit.

In her motion for child support and division of assets filed in the court below, Cuisenaire asserted that the North Carolina court violated North Carolina law by failing to divide the marital assets and award child support. Cuisenaire alleged that Mason manipulated her by indicating that he would take care of the divorce paperwork, that their "mutual" attorney would look after her interests and that he would provide child support. Cuisenaire also alleged that Mason told her that, if she questioned the divorce proceedings, he would arrange it so that Cuisenaire would never see her child. Despite describing these allegations in her statement of facts, the record does not reveal that Cuisenaire argued to the district court that Mason fraudulently obtained the divorce decree.

On appeal, Cuisenaire argues that the divorce decree is invalid due to myriad substantive and procedural defects. First, Cuisenaire asserts that Mason falsified the period of separation in the divorce proceedings. However, in her answer to his divorce complaint, Cuisenaire admitted Mason's averment as to the date of separation was correct.

Second, Cuisenaire asserts that the divorce is invalid, or is at least voidable upon collateral attack, because (1) she did not have independent representation; and (2) under North Carolina law, Mason breached his fiduciary duty to Cuisenaire by failing to inform her of his military retirement benefits.⁵ She contends that Mason's acts and omissions and his false promises and threats amounted to fraud and duress sufficient to overcome the validity of the judgment as it pertained to property and support issues.

Third, Cuisenaire asserts that the North Carolina judgment is void for lack of due process. Cuisenaire asserts that, while in North Carolina, she signed an acceptance of service of the divorce complaint and that Mason's own notary verified her signature. That same day, however, Mason moved for summary judgment but served Cuisenaire through regular mail at her Belgium address, even though Mason knew that she was in North Carolina. She contends that Mason's attempted service on her in Belgium did not comport with due process.

Cuisenaire did not raise these issues below. Moreover, as noted, the district court did not make any findings in this regard. Cuisenaire requests that, if this court reverses any part of the district court's order, we remand the matter for the district court to determine whether the North Carolina decree is invalid. Generally, failure to raise an argument in the district court proceedings precludes a party from presenting the argument on appeal.⁶ Cuisenaire, however, argues that since her due process rights were violated, we should address the issue on appeal.⁷ She does not contest the validity of the judgment but, instead, asks this court to remand for further proceedings as to whether the North Carolina judgment was void if we reverse the district court's order. We decline this invitation. Based upon her failure to attack the judgment's basic validity below, the district court properly determined that Cuisenaire had not shown fraud, lack of due process, or lack of jurisdiction.

As the North Carolina decree is entitled to full faith and credit, North Carolina law controls the award of retroactive child support

The district court awarded Cuisenaire both current child support and child support arrears. Mason only attacks the award of retroactive child support, arguing that the district court erred when, in doing so, it interpreted and applied NRS 125B.030. We conclude that the district court abused its discretion in applying NRS 125B.030 because the statute is inapplicable to the parties. An award of retroactive child support, however, was proper because the North Carolina decree is entitled to full faith and credit.

Application of NRS 125B.030

The district court awarded retroactive support to Cuisenaire under NRS 125B.030. We conclude that this was an abuse of discretion. NRS 125B.030 states:

Where the parents of a child are separated, the physical custodian of the child may recover from the parent without physical custody a reasonable portion of the...