author: By the Court, PICKERING, J.:

text:
    Dennis KOGOD, Appellant/Cross-Respondent, v. Gabrielle CIOFFI-KOGOD, Respondent/Cross-Appellant.
    Dennis Kogod, Appellant/Cross-Respondent, v. Gabrielle Cioffi-Kogod, Respondent/Cross-Appellant.
    No. 71147 No. 71994
    Supreme Court of Nevada.
    FILED APRIL 25, 2019
   By the Court, PICKERING, J.:

This is a divorce action with a $ 47 million community property estate, in which the district court awarded alimony not based on need and also unequally distributed the parties' community property due to one spouse's extramarital affairs, gifts to family, and excess spending. In this opinion, we recognize that alimony can be just and equitable even when not based on financial need, but we reverse the alimony award in this case because the receiving spouse's share of community property will produce passive income sufficient to maintain her marital standard of living. We also hold that community funds spent on extramarital affairs are dissipated such that the district court has a compelling reason to make an unequal disposition of community property. Finally, this opinion addresses whether monetary sanctions were appropriate for expenditures in violation of the automatic joint preliminary injunction ordering the parties not to spend money outside the usual course of business; whether expert witness and attorney fees were warranted; and when a community property estate properly ends. We affirm in part, reverse in part, and remand.

I.

Dennis Kogod and Gabrielle Cioffi-Kogod married in 1991 in New York City. They lived in various cities throughout their marriage, moving each time to advance Dennis's career in the healthcare industry. In 2003, Dennis and Gabrielle moved to Las Vegas. Dennis worked for a healthcare company based in southern California and Gabrielle worked part-time in Las Vegas as a nurse consultant. Dennis traveled frequently for work and spent his weekdays either traveling or at his office in southern California. He spent most weekends with Gabrielle in Las Vegas.

Dennis and Gabrielle considered themselves upper-middle class until 2004, when Dennis took a more senior role at his company. By 2009, Dennis was promoted to Chief Operating Officer of a Fortune 500 healthcare company. With his new promotion, he earned an average base salary of $ 800,000 per year, but received bonuses that put his average annual income at almost $ 14,000,000. Gabrielle, as a part-time nurse consultant, earned approximately $ 55,000 per year. Dennis describes this time period after he and Gabrielle moved to Las Vegas as one in which they were essentially living separate lives, but Gabrielle disputes Dennis's characterization and claims that they spoke every day, sometimes multiple times a day.

Unknown to Gabrielle, Dennis had started a separate family in southern California. He met Nadya in November 2004 and by June 2005 they participated in a wedding-type ceremony in Mexico. Shortly after, Dennis informed Nadya he was already married. Despite this, Dennis and Nadya remained together and, after participating in in-vitro fertilization, had twin girls in 2007. Dennis paid for all of Nadya's and his daughters' expenses, including a condominium in southern California, luxury cars, shopping trips and vacations, cosmetic surgery, and Nadya's college classes-he even invested in a business on Nadya's behalf. Dennis and Nadya remained together until 2015 when Nadya discovered that Dennis had another girlfriend.

Dennis initially filed for divorce from Gabrielle in 2010, but the action was dismissed and the couple instead became informally separated as of July 2010. Gabrielle then filed this divorce action in December 2013, at which time she still did not know about Dennis's extramarital family. Had Dennis and Gabrielle divorced in 2010 when they informally separated, just one year after Dennis was promoted to COO, the marital estate would have been significantly smaller than the approximately $ 47 million ultimately divided by the district court.

The district court entered its divorce decree in August 2016. Because the district court previously awarded more than $ 6 million to each Gabrielle and Dennis as separate property throughout the divorce proceedings, $ 35 million of community property remained in the marital estate. Due to Dennis's expenditures on extramarital affairs, gifts to his family during the divorce proceedings, and spending in excess of his self-declared expenses, the district court found that Dennis dissipated $ 4,087,863 in community property and unequally divided the parties' community property on that basis. The district court also awarded Gabrielle alimony in the lump sum of $ 1,630,292 to compensate for economic losses as a result of the marriage and divorce, but recognized that she did not need alimony to support herself. In total, Gabrielle, 58 years old, received nearly $ 21 million in the divorce decree and Dennis, 57 years old, received just under $ 14 million. Gabrielle received mostly cash assets, which she does not contest can passively earn her between $ 500,000 and $ 800,000 per year, whereas Dennis's assets largely consist of real property.

In addition to the unequal disposition of community property and the alimony award, the district court sanctioned Dennis $ 19,500 for purported violations of an automatic joint preliminary injunction and awarded $ 75,650 in expert witness costs to Gabrielle to pay for the forensic accounting firm that analyzed over 27,200 of her and Dennis's financial transactions from between 2008 and 2016. Dennis appealed from the district court's orders, and Gabrielle cross-appealed.

II.

Dennis first challenges the award of alimony to Gabrielle. Permanent alimony is financial support paid from one spouse to the other for a specified period of time, or in a lump sum, following a divorce. NRS 125.150(1)(a) ; Rodriguez v. Rodriguez , 116 Nev. 993, 999, 13 P.3d 415, 419 (2000) ("Alimony is financial support paid from one spouse to the other whenever justice and equity require it."). When granting a divorce, a district court may award alimony to either spouse "as appears just and equitable." NRS 125.150(1)(a). The decision of whether to award alimony is within the discretion of the district court. Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974) ("In determining whether alimony should be paid, as well as the amount thereof, courts are vested with a wide range of discretion.").

When determining if alimony is just and equitable, a district court must consider the eleven factors listed in NRS 125.150(9). See DeVries v. Gallio, 128 Nev. 706, 711-13, 290 P.3d 260, 264-65 (2012). The district court may also consider any other relevant factor, but it must not consider the marital fault or misconduct, or lack thereof, of the spouses. Rodriguez , 116 Nev. at 999, 13 P.3d at 419 ("Alimony is not a sword to level the wrongdoer. Alimony is not a prize to reward virtue.").

NRS 125.150(9) 's authorization to award alimony as appears just and equitable is amorphous and does not explain the purpose of alimony. See David A. Hardy, Nevada Alimony: An Important Policy in Need of a Coherent Policy Purpose, 9 Nev. L. J. 325, 330 (2009) ("Nevada does not provide a coherent policy rationale for why, when, and how alimony should be awarded."); Robert Kirkman Collins, The Theory of Marital Residuals: Applying an Income Adjustment Calculus to the Enigma of Alimony, 24 Harv. Women's L. J. 23, 23 (2001) ("Statutes simply list factors for trial courts to consider without providing any guidance as to how the judge should weigh or apply them."). Leaving the purpose of alimony nebulous makes alimony awards unpredictable for parties and their attorneys, and leaves courts uncertain as to when, and in what amount, alimony should be awarded. Marshal Willick, In Search of a Coherent Theoretical Model for Alimony, Nev. Law., Apr. 2007, at 41 (noting that alimony is "the last great crapshoot in family law" because "it is a category of remedy without any substantive underlying theoretical rationale").

The parties' arguments in this case highlight the undefined nature of alimony awards. Dennis argues that a judge's discretion to award alimony is limited to instances of financial need, and that no Nevada case or statute extends alimony beyond financial need. Gabrielle responds that alimony may be awarded to equalize post-divorce earnings or maintain the marital standard of living, regardless of need. Our previous cases often addressed alimony without discussing its purpose or scope in express terms. But after examining the historical underpinnings of alimony and our prior case law, we now hold that alimony can be "just and equitable" both when necessary to support the economic needs of a spouse and to compensate for a spouse's economic losses from the marriage and divorce, including to equalize post-divorce earnings or help maintain the marital standard of living.

A.

Alimony, in its most elementary form, is based on the receiving spouse's need and the paying spouse's ability to pay. When alimony originated in England, a woman's legal rights, including ownership of property and the ability to work and keep her wages, were subsumed by her husband under the doctrine of coverture. See Collins, The Theory of Marital Residuals, 24 Harv. Women's L.J. at 28-29 ("[M]arried women were barred by the doctrine of unity from holding certain property, signing contracts, working at many professions, or retaining their own earnings when they did work.... ") (footnotes omitted). And absolute divorce, where the marital relationship was terminated, was exceedingly difficult to obtain. See id . Rather than absolute divorce, spouses could seek a " 'divorce' from bed and board," where the spouses lived apart without actually terminating the marriage or the wife being released from coverture. Id. This meant the husband had an ongoing legal and moral obligation to continue to provide for his wife, despite the "divorce," because she could not support herself. Id. at 29 ; see also Manby v. Scott (1663) 86 Eng. Rep. 781, 784 (Exch.) ("[T]he law having disabled the wife to bind herself by contract, therefore the burthen shall rest upon the husband, who by law is bound to maintain her...."). Despite finding its origins in the scarcity of absolute divorce and the law of coverture, courts continued to award alimony even after absolute divorce became available, seemingly out of economic necessity. Collins, The Theory of Marital Residuals, 24 Harv. Women's L.J. at 30-31.

Alimony to remedy the economic-power imbalance between husband and wife is recognized in Nevada's earliest cases. See In re application of Phillips, 43 Nev. 368, 373, 187 P. 311, 311-12 (1920) (recognizing alimony as "a duty which sound public policy sanctions to compel one who is able so to do, possibly as a result of the cooperation (during coverture) of his former wife, to prevent such former wife from becoming a public charge or dependent upon the charity of relatives or friends"); see also Wilde v. Wilde, 2 Nev. 306, 307 (1866) (noting that a married woman's "property is generally entirely under the control of the husband"). Indeed, some cases treat the receiving spouse's need and the paying spouse's ability to pay as the sole alimony determinants. See, e.g., Applebaum v. Applebaum, 93 Nev. 382, 386, 566 P.2d 85, 88 (1977) (affirming a denial of alimony where the spouse "had adequate resources with which to support herself"); Foy v. Estate of Smith, 58 Nev. 371, 376, 81 P.2d 1065, 1067 (1938) (stating that the right to alimony "is solely that of support"); Greinstein v. Greinstein, 44 Nev. 174, 174, 191 P. 1082, 1082 (1920) (affirming an award of alimony where "the wife was without sufficient means, and unable physically to maintain and support herself, and ... the husband was financially able to pay"); Lake v. Bender, 18 Nev. 361, 410, 7 P. 74, 80 (1884), modified on reh'g (stating that a court should award alimony based on "the financial conditions of the husband and the requirements of the wife"), abrogated on other grounds by Johnson v. Johnson, 89 Nev. 244, 246, 510 P.2d 625, 626 (1973).

NRS 125.150, which authorizes alimony, directs a district court to consider several factors that help the court to understand the spouses' financial needs and abilities to pay. See NRS 125.150(9). A district court must consider: "[t]he financial condition of each spouse," NRS 125.150(9)(a) ; "[t]he nature and value of the respective property of each spouse," (9)(b); "[t]he income, earning capacity, age and health of each spouse," (9)(e); "[t]he award of property granted by the court in the divorce ... to the spouse who would receive the alimony," (9)(j); and "[t]he physical and mental condition of each party as it relates to the financial condition, health and ability to work of that spouse," (9)(k). After considering these factors, and any other relevant circumstance, our case law makes clear that a district court may award alimony to ensure that an economically powerless spouse receives sufficient support to meet his or her needs. See Gilman v. Gilman , 114 Nev. 416, 423-24, 956 P.2d 761, 765 (1998) ("The Nevada legislature created spousal support awards to, inter alia, keep recipient spouses off the welfare rolls.").

If a district court awards alimony to address a spouse's financial need, the basis for an award is clear-cut when one spouse is unable to meet the basic necessities of life such as food, clothing, and habitation. But such an award becomes less certain and predictable when the divorced spouse is able to meet his or her basic needs. A court can "reach very different figures for a spouse's 'needs,' depending on whether those needs are measured at a subsistence level, a level that the court believes to be objectively reasonable, or the actual subjective marital standard of living." Brett. R. Turner, Spousal Support in Chaos, 25 Fam. Advoc., Spring 2003, at 14,17. Alimony based on economic necessity, then, requires a policy decision regarding when a divorced spouse's "needs" are met. See Principles of the Law of Family Dissolution: Analysis and Recommendations § 5.02 cmt. a (Am. Law Inst. 2002) (hereinafter Family Dissolution) ("Some judicial opinions find the alimony claimant in 'need' only if unable to provide for her basic necessities, others if the claimant is unable to support himself at a moderate middle-class level, and still others whenever the claimant is unable to sustain the living standard enjoyed during the marriage even if it was lavish."). As it stands, the Legislature has placed that decision-making power in the hands of district courts to award alimony "as appears just and equitable." NRS 125.150(1)(a).

B.

In addition to economic need, alimony may also be awarded to compensate for economic loss as the result of a marriage and subsequent divorce, particularly one spouse's loss in standard of living or earning capacity. See Mary Kay Kisthardt, Re-thinking Alimony: The AAML's Considerations for Calculating Alimony, Spousal Support or Maintenance, 21 J. Am. Acad. Matrim. Law. 61, 69 (2008) (describing the wave of reform to alimony statutes as compensation "for loss of human capital by virtue of non-market work engaged in by the claimant during the marriage"); see also Collins, The Theory of Marital Residuals , 24 Harv. Women's L.J. at 49 ("[T]here should be some degree of sharing of post-divorce incomes to reflect the returns flowing from efforts made while the marital joint venture was operational-an equitable sharing of the residual economic benefits from work done during the marriage."). Given the contractual and cooperative undertakings implicit in a marriage, alimony might be seen as a remedy fashioned for the economic losses resulting from splitting one household into two through divorce. See Family Dissolution § 5.02 cmt. a (recognizing that divorce creates financial losses for spouses that, "[w]ithout reallocation,... are not likely to fall equitably as between them"). Such a loss could come in the form of lower income-earning potential due to forgoing career opportunities for the sake of the marriage, see Ira Mark Ellman, The Theory of Alimony, 77 Cal. L. Rev. 3, 51 (1989) (describing alimony as compensation for marital investment, i.e., "conduct giving rise to a compensable loss in earning capacity" upon divorce), or a lower standard of living than reasonably expected due to the early termination of the marriage, see generally Collins, The Theory of Marital Residuals , 24 Harv. Women's L.J. at 49-50 (recognizing that the return from efforts made during the marriage may not materialize until after the divorce). As a remedy, a court can award alimony to make the "spouse whole at the end of the marriage by rewarding efforts in homemaking, childrearing, interruption of a career, or contributions to the success of the other." Id. at 39-40.

Our case law's concern for maintaining a spouse's standard of living post-divorce is reflected in this rationale for alimony. Enabling the lower-income-earning spouse to maintain a lifestyle as close as possible to the lifestyle enjoyed during the marriage has consistently been an important aim of this court. See, e.g., Wright v. Osburn, 114 Nev, 1367, 1369, 970 P.2d 1071, 1072 (1998) (deeming the spousal support award insufficient because the wife would not be able to "maintain the lifestyle she enjoyed during the marriage or a lifestyle commensurate with" her former husband); Sprenger v. Sprenger, 110 Nev. 855, 860, 878 P.2d 284, 287 (1994) (remanding with instructions to award alimony such that the spouse may "live as nearly as fairly possible to the station in life she enjoyed before the divorce") (internal quotation marks omitted); Gardner v. Gardner, 110 Nev. 1053, 1058, 881 P.2d 645, 648 (1994) (increasing alimony by ten years because the wife's "contribution to the community over many years [was] not fairly recognized by the two-year alimony award"); Rutar v. Rutar, 108 Nev. 203, 208, 827 P.2d 829, 832 (1992) (increasing the alimony award where the previous award only provided "a standard of living far below that to which [the wife and children] have been accustomed"). This court reaffirmed this goal in Shydler v . Shydler, 114 Nev. 192, 954 P.2d 37 (1998), by noting that two of the primary purposes of alimony "are to narrow any large gaps between the post-divorce earning capacities of the parties and to allow the recipient spouse to live 'as nearly as fairly possible to the station in life [ ] enjoyed before the divorce.' " Id. at 198, 954 P.2d at 40 (alteration in original) (citations omitted) (quoting Sprenger, 110 Nev. at 860, 878 P.2d at 287-88 ).

Like the need-based factors, NRS 125.150(9) codifies some factors to help a district court assess the economic losses caused by the marriage and subsequent divorce. A district court must consider: "[t]he duration of the marriage," NRS 125.150(9)(d) ; "[t]he income, earning capacity, age and health of each spouse," (9)(e); "[t]he standard of living during the marriage," (9)(f); the spouse's career before the marriage, (9)(g); specialized education or training obtained during the marriage, (9)(h); and "[t]he contribution of either spouse as homemaker," (9)(i). After considering these factors, and any other relevant circumstance, the district court may award alimony under NRS 125.150(1)(a) to compensate a spouse for non-monetary contributions to the marriage and economic losses from the early termination of the marriage, such as lost income-earning potential or a decreased standard of living.

C.

Dennis, then, is incorrect when he asserts that alimony may only be awarded to meet financial need and that the district court abused its discretion by basing its alimony award on an economic loss theory. The district court found that Dennis's income "dwarfed" Gabrielle's; his average net monthly income was $ 58,000 while hers was only $ 3,800. As a result, the district court awarded Gabrielle alimony of $ 18,000 per month for nine years. The district court, however, ordered payment in a one-time lump sum out of the community property and discounted the award by a four percent average rate of return. This resulted in a $ 1,630,292 lump-sum alimony award to Gabrielle. Gabrielle asserts that alimony was necessary to narrow the large income gap between her and Dennis and to maintain her marital standard of living. We disagree.

While a district court may generally award alimony to narrow large post-divorce gaps in income and to maintain the parties' marital standard of living, the nature. and value of the community property Gabrielle received in the divorce obviated any basis for awarding alimony. Gabrielle can earn between $ 500,000 and $ 800,000 in passive annual income from the cash assets she received in the divorce. This passive income from interest and dividends easily covers Gabrielle's monthly expenses and far exceeds the actual alimony award of $ 18,000 per month that the district court deemed just and equitable. Accordingly, we reject Gabrielle's argument that alimony was necessary to narrow her and Dennis's large post-divorce income gap and to maintain her pre-divorce standard of living.

1.

A large gap in income, alone, does not decide alimony. The award must meet the receiving spouse's economic needs or compensate for economic losses resulting from the marriage and subsequent divorce. See Family Dissolution § 5.03 cmt. b ("Disparity in the post-divorce incomes of the spouses does not itself provide the basis of a claim [to share the other spouse's income.]"); Nousari v. Nousari, 94 So.3d 704, 706 (Fla. 4th DCA 2012) ("The purpose of permanent alimony is not to divide future income to establish financial equality between the parties, so disparity in income alone does not justify an award of permanent alimony.") (internal quotation marks and citation omitted). As Shydler recognized, "our case law does not require the district court to award alimony so as to effectively equalize salaries." 114 Nev. at 199, 954 P.2d at 41 ; see also Gardner, 110 Nev. at 1058, 881 P.2d at 648 (increasing alimony but recognizing that it would "still fail to achieve income parity between the [spouses]"). Justice and equity only require alimony to achieve more parity in post-divorce income levels when there is economic need, the marriage and subsequent divorce contributed to the disparate income levels, or one spouse cannot maintain the marital standard of living while the other spouse maintains or exceeds the marital standard of living.

For example, in Shydler , during a seventeen-year marriage, the husband obtained a general contractor's license and built a successful company. 114 Nev. at 196, 954 P.2d at 39. The wife worked in the insurance industry during the marriage, first as an insurance adjustor then founding her own insurance business. Id. But the wife's business shrank over time and the husband's drinking problems interfered with the wife's work, "particularly during a ten-month period of time when [the husband] could not legally drive." Id. Upon divorce, the husband earned more than $ 100,000 per year, while the wife could only earn $ 25,000 to $ 59,000 per year. Id. at 196-97, 954 P.2d at 40. The parties also had a minor son. See id. at 199, 954 P.2d at 41. "In light of the disparate incomes of the parties and the lifestyle enjoyed by [the wife] prior to the divorce," the court held equity favored an alimony award to the wife. Id. at 198-99, 954 P.2d at 41.

Similarly, in Sprenger , during a marriage of nearly 22 years, the husband "developed the business acumen [to] provide [ ] him with a thriving business and substantial assets." 110 Nev. at 859, 878 P.2d at 287. The wife was a licensed nurse before the marriage, but then "gave up her career in order to take care of the children and household duties." Id. The district court awarded the wife alimony of $ 1,500 per month for up to two years, along with a 25-percent interest in a partnership owned by the husband and his parents, which was valued at $ 837,408. Id. at 858-59, 878 P.2d at 287. But the wife was "at the mercy" of the husband and his parents as to whether she would ever receive any income from the partnership. Id. at 859-60, 878 P.2d at 287. This court reversed the district court's alimony award and remanded for the district court "to both increase and extend [the wife's] alimony award such that [the wife] is able to live 'as nearly as fairly possible to the station in life she enjoyed before the divorce' for the rest of her life or until she remarries or her financial circumstances substantially improve." Id. at 860, 878 P.2d at 287 (quoting Heim v. Heim, 104 Nev. 605, 612-13, 763 P.2d 678, 683 (1988) ).

In both cases, an aspect of the marriage contributed to the receiving spouse's lower income-earning potential, which resulted in a post-divorce decrease from the marital living standard. In Shydler , the parties shared a child, and the husband's "heavy drinking and related problems caused [the wife] to neglect her insurance business." 114 Nev. at 194, 954 P.2d at 38. And, in Sprenger , the wife "gave up her career as a nurse" to take care of the parties' children. 110 Nev. at 857, 878 P.2d at 286. In both cases, the lower-income-earning spouse could not maintain the marital standard of living after the divorce. See id. at 860, 878 P.2d at 287 ; Shydler, 114 Nev. at 198-99, 954 P.2d at 41.

Under these cases, alimony to achieve parity in income must further some underlying rationale for alimony such as economic need, the receiving spouse's inability to maintain the marital standard of living, or the receiving spouse's decreased income-earning potential as a result of the marriage. The district court did not have discretion to award alimony solely to achieve income parity between Dennis and Gabrielle following the divorce.

2.

Gabrielle is correct that we have upheld, and sometimes required, alimony to maintain the parties' marital standard of living. But Gabrielle can maintain her standard of living from the marriage without alimony. The passive income from the assets Gabrielle received in the divorce will easily cover her approximately $ 16,000 in monthly expenses and give her the ability to maintain savings and investment accounts. The district court acknowledged but then disregarded this passive income because the award was not need-based. The district court should have considered the nature and amount of the property disposition, including passive income from the assets awarded to the parties, when determining whether Gabrielle needed alimony to maintain her standard of living. See NRS 125.150(9)(j) ; Lang v. Lang , 169 Mich.App. 429, 425 N.W.2d 800, 802 (1988) ("It would be the height of absurdity to suggest that a spouse, to whom income-producing property was awarded in a property settlement, would be entitled to have his or her need for alimony, or ability to pay alimony, determined without regard to the income produced by that property."). The substantial cash assets Gabrielle received in the divorce, which Gabrielle will not need to draw on to support herself or maintain her standard of living, negated any basis for alimony to maintain Gabrielle's pre-divorce standard of living in this case. Cf. Shydler , 114 Nev. at 198, 954 P.2d at 40-41 (disapproving of the district court's alimony award, which "compelled [the wife] to utilize her community property share for support, while [the husband's] share of the community property was actually providing a substantial income for his support"); see Italiano v. Italiano, 873 So.2d 558, 560 (Fla. 2nd DCA 2004) (reversing when the trial court awarded alimony despite its finding that there was "no current need for alimony because [the spouse's] needs could be completely met from her income-producing assets"); Billion v. Billion, 553 N.W.2d 226, 231 (S.D. 1996) (recognizing the "symbiotic relationship between" property division and alimony, and that "the need for post-divorce alimony can be reduced or obviated" by awarding certain income-producing assets to a spouse who might otherwise receive alimony).

The principles underlying permanent alimony do not contemplate an award for a spouse who is, after the community is divided, capable of supporting him or her self, able to maintain the marital standard of living on his or her own, and not economically disadvantaged in his or her earning capacity as a result of the marriage. The lack of a proper basis for alimony in this case is especially concerning given the risk that an alimony award could have been improperly motivated by Dennis's marital indiscretions and role in bringing about the end of the marriage. See Rodriguez, 116 Nev. at 998, 13 P.3d at 418 ("[W]hen considering an award of alimony, the court may not consider either party's misconduct or fault."). Accordingly, we hold that the district court abused its discretion by awarding alimony without a proper basis, and reverse the award.

III.

Turning to the division of property, a court must make an equal disposition of community property in a divorce unless there is a "compelling reason" to make an unequal disposition. NRS 125.150(1)(b). An appellate court reviews a district court's disposition of community property deferentially, for an abuse of discretion. See Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 919 (1996) ("This court's rationale for not substituting its own judgment for that of the district court, absent an abuse of discretion, is that the district court has a better opportunity to observe parties and evaluate the situation.").

Dissipation, or waste, can provide a compelling reason for the unequal disposition of community property. Lofgren v . Lofgren, 112 Nev. 1282, 1283, 926 P.2d 296, 297 (1996) ("[I]f community property is lost, expended or destroyed through the intentional misconduct of one spouse, the court may consider such misconduct as a compelling reason for making an unequal disposition of community property and may appropriately augment the other spouse's share of the remaining community property."). "Generally, the dissipation which a court may consider refers to one spouse's use of marital property for a selfish purpose unrelated to the marriage in contemplation of divorce or at a time when the marriage is in serious jeopardy or is undergoing an irretrievable breakdown." 24 Am. Jur. 2d Divorce and Separation § 524 (2018) ; see also Dissipation, Black's Law Dictionary (10th ed. 2014) (defining "dissipation" as "[t]he use of an asset for an illegal or inequitable purpose, such as a spouse's use of community property for personal benefit when a divorce is imminent").

The district court found that Dennis dissipated $ 4,087,863 in community property. A large portion of the dissipated community property relates to Dennis's extramarital affairs and children, some relates to expenditures on his family, and the other large portion comprises a variety of other expenditures beyond those Dennis claimed in his financial disclosures. Dennis argues that he did not dissipate any community property because the marital estate continued to grow tremendously-from $ 4 million to $ 47 million by his reckoning-during the time of alleged dissipation. Gabrielle counters that the district court should have found more dissipation and begun its calculations even before the marriage underwent an irreconcilable breakdown in 2010 when the parties informally separated.

A.

The $ 1,853,212 Dennis diverted from the community for his extramarital affairs provided a compelling reason for an unequal disposition of community property. See, e.g., Neely v. Neely, 115 Ariz. 47, 563 P.2d 302, 305 (App. 1977) (affirming an unequal property distribution because the husband spent community property on his girlfriend); Rabbath v. Farid , 4 So.3d 778, 780 (Fla. 1st DCA 2009) (recognizing that "[a]dultery can be considered in fashioning an unequal distribution of assets and liabilities to the extent the marital misconduct depleted marital resources"); In re Marriage of Meadow, 256 Ill.App.3d 115, 195 Ill.Dec. 238, 628 N.E.2d 702, 704-05 (1993) (same); Omayaka v. Omayaka , 417 Md. 643, 12 A.3d 96, 101 n.3 (2011) (noting that "[a]ppellate courts have held that improper expenditures on a paramour ... constitutes dissipation"); McNair v. McNair, 987 S.W.2d 4, 7 (Mo. Ct. App. 1998) (same); Basile v. Basile, 199 A.D.2d 649, 605 N.Y.S.2d 133, 135 (1993) (same); Spruill v. Spruill , 624 S.W.2d 694, 697-98 (Tex. Ct. App. 1981) (same); see also Brett R. Turner, Unintentional Conduct as Dissipation of Marital Property, 21 Equitable Distribution J. 13 (2004) ("[F]unds spent on paramours are almost automatically dissipated."). The district court did not abuse its discretion in making an unequal disposition of community property in the amount spent on the extramarital affairs.

Dennis's argument that, because the overall value of the estate grew during the marital misconduct, his spending of community funds had no adverse economic impact on the marital estate is unpersuasive. Wheeler v. Upton-Wheeler held that spousal abuse or marital misconduct is a compelling reason to make an unequal disposition of community assets only when it has an "adverse economic impact" on the spouse. 113 Nev. 1185, 1190, 946 P.2d 200, 203 (1997). But Wheeler considered the economic consequences of physical abuse in a marriage, which has a more tenuous connection to community property than Dennis's misconduct in this case, where he admits he spent community funds on extramarital affairs and the support of a family without Gabrielle's knowledge.

B.

The district court found that Dennis also dissipated $ 72,200 through post-separation, pre-divorce gifts to family members. A gift to a family member that violates a preliminary injunction constitutes dissipation. Lofgren, 112 Nev. at 1283, 926 P.2d at 297 (upholding an unequal disposition where the husband transferred funds to his father despite an injunction enjoining such actions). Absent a specific injunction, a gift to a family member is not dissipation if there is an established pattern or history of giving such gifts to family members during the marriage. See Robinette v. Robinette, 736 S.W.2d 351, 354 (Ky. Ct. App. 1987) (recognizing that "giving gifts to family members could constitute dissipation" but the evidence "in the instant case indicates that such charity was a marital enterprise");

Decker v. Decker, 17 Va.App. 12, 435 S.E.2d 407, 413 (1993) (affirming a finding of no dissipation when it was evident that the gifts to family members were part of the couple's pre-separation estate planning). But a gift to a family member is dissipation when there is no previous history of gift giving or the amount of the gift during the divorce is substantially greater than past gifts. See Kleet v. Kleet, 264 S.W.3d 610, 618 (Ky. Ct. App. 2007) (deeming as dissipation a husband's gifts to family when divorce was impending because the value of the gifts "far exceeded those given prior to that time").

Dennis routinely gave money to his family throughout the marriage, and often did so without consulting Gabrielle. The district court appropriately found that such "relatively long-standing and regular" expenditures on family members were not dissipation. But Dennis also gave $ 15,000 to his aunt after the joint preliminary injunction, which he could not establish as regular or routine. Additionally, he made two non-routine payments of $ 3,600 to his father and gave his father $ 50,000 for a political campaign contribution. The district court appropriately found that such gifts from Dennis, totaling $ 72,200, amounted to dissipation and afforded a compelling reason for an unequal disposition of community property.

C.

The final $ 2,162,451 of alleged waste represents the amount Dennis spent in excess of his self-declared monthly expenses that he failed to justify to the district court as a marital expense. The district court considered these expenses as potential waste, at least in part, because Dennis failed to provide a forensic accountant to do a waste analysis after promising to do so. Instead, Gabrielle's own forensic accountant analyzed over 27,200 of the parties' financial transactions and categorized expenditures into those for a marital purpose and those that the expert claimed were "potential community waste." The forensic accountant included funds spent on extramarital affairs and yacht purchases among the transactions that were "potential community waste." But the forensic accountant also included expenditures that were in excess of Dennis's self-proclaimed expenses in his financial disclosure forms that were neither clearly for a marital purpose nor clearly for a nonmarital purpose, labeling this category "potential community waste not elsewhere classified." The district court ultimately required Dennis to account for each of these "not elsewhere classified" transactions, beginning in 2010, and to prove that, no matter how large or small the amount, the transactions served a marital purpose, not dissipation.

The district court erred by requiring Dennis to explain everyday expenditures over the course of several years, including before this divorce action began, and finding dissipation when he failed in this task. Dennis was not called to account for these expenditures because Gabrielle raised a reasonable inference that the transactions furthered a purpose inimical to the marriage, that he made them to diminish Gabrielle's community property share, or even that they were unusually large withdrawals from community accounts. Cf 24 Am. Jur. 2d Divorce and Separation § 524 (2018) (defining dissipation as the "use of marital property for a selfish purpose unrelated to the marriage in contemplation of divorce or at a time when the marriage is in serious jeopardy or is undergoing an irretrievable breakdown"). Rather, the district court required Dennis to explain these expenditures because they exceeded his self-described monthly expenses and he failed to follow through on providing a forensic accountant after promising to do so.

While Dennis's spending could appear wasteful in the aggregate, his expenditures appear typical of his general overconsumption throughout the marriage, and they do not provide a compelling reason for an unequal disposition of community property. See Putterman v. Putterman, 113 Nev. 606, 609, 939 P.2d 1047, 1048-49 (1997) ("Almost all marriages involve some disproportion in contribution or consumption of community property."). A district court must differentiate between ordinary consumption for higher-income earners such as Dennis, which is not necessarily dissipation, and misappropriation of community assets solely for personal gain, which can provide a compelling reason for an unequal disposition of community property when such expenditures redirect assets needed for basic community support. Id. at 609, 939 P.2d at 1048 ("It should be kept in mind that the secreting or wasting of community assets while divorce proceedings are pending is to be distinguished from undercontributing or overconsuming of community assets during the marriage."). We therefore reverse the district court's unequal disposition of community property by the $ 2,162,451 labeled in the forensic accounting report as "potential community waste not elsewhere classified."

D.

Gabrielle argues the district court erred by cutting off community property before the written divorce decree. We agree under these circumstances. The district court ended its calculations involving community property on February 26, 2016, when it orally pronounced the parties divorced, so that it could issue a written order following the trial. The written divorce decree was not entered until six months later, on August 22, 2016.

Under Nevada law, the district court's oral pronouncement of divorce did not terminate the community. See NRS 123.220 ; Rust v . Clark Cty. Sch . Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987) ("An oral pronouncement of judgment is not valid for any purpose, NRCP 58(c) ; therefore, only a written judgment has any effect...."). NRS 123.220 makes all property acquired after the marriage community property, with no exception for an oral pronouncement of divorce. We therefore remand this matter for the district court to consider the accumulation and waste of community property between its oral pronouncement of the termination of community property and the actual termination when the written divorce decree was entered. See Gojack v. Second Judicial Dist. Court, 95 Nev. 443, 445, 596 P.2d 237, 239 (1979) (holding that a district court "is without jurisdiction to enter a final decree of divorce without contemporaneously disposing of the community property of the parties").

IV.

The district court sanctioned Dennis $ 19,500 for making 39 transactions of $ 10,000 or more during the divorce proceedings-$ 500 for each transaction-based on the joint preliminary injunction, which prohibited either party from using community property "except in the usual course of business or for the necessities of life." EDCR 7.60(b)(5) allows a district court to sanction a party for failing or refusing to comply with a court order "without just cause" and when the sanction is reasonable under the facts of the case.

What constitutes spending beyond "the usual course of business or for the necessities of life," as stated in the preliminary injunction in this case, is not clear and unambiguous given the parties' wealth. See Brett K. Turner, Entry and Enforcement of Preliminary Injunctions Against Dissipation of Marital Property, 16 Divorce Litig. 102 (2004) ("[M]ost broad general injunctions must have an exception for transfers in the ordinary course of life or business, and this exception can give many questionable transactions sufficient plausible reasonableness to avoid contempt."); see also Cunningham v. Eighth Judicial Dist. Court, 102 Nev. 551, 559-60, 729 P.2d 1328, 1333-34 (1986) ("An order on which a judgment of contempt is based must be clear and unambiguous, and must spell out the details of compliance in clear, specific and unambiguous terms so that the person will readily know exactly what duties or obligations are imposed on him."). Thus, instead of ordering sanctions, the appropriate remedy for violations of the automatic joint preliminary injunction due to overspending would be an unequal disposition of property. To the extent Dennis violated the joint preliminary injunction by making transactions in excess amounts, the appropriate remedy was a finding of waste and an unequal disposition of the community property. Accordingly, we reverse the district court's sanctions and deny Gabrielle's cross-appeal for greater sanctions.

V.

The district court also awarded $ 75,650 in costs to Gabrielle, representing half the fee her forensic accountant charged. The district court did not state a basis for awarding costs, and there is no apparent basis for doing so. See U.S. Design & Constr. Corp. v. Int'l Bhd. of Elec. Workers, Local 357 , 118 Nev. 458, 462, 50 P.3d 170, 173 (2002) ("A district court is not permitted to award ... costs unless authorized to do so by a statute, rule or contract."). There was no offer of judgment that would allow for costs or fees, see NRS 125.141 (allowing for attorney fees and costs if a party who rejects an offer of judgment fails to obtain a more favorable judgment), and the court explicitly found that there was no prevailing party, see NRS 18.020 (allowing for costs to the prevailing party in certain types of cases). Nor did the court award costs as part of a sanction under EDCR 7.60 for violations of the joint preliminary injunction. Even if Gabrielle was entitled to costs, the district court did not state any basis for awarding expert fees in excess of $ 1,500. See NRS 18.005(5) (allowing a district court to award more than $ 1,500 for an expert witness's fees only if the court determines "that the circumstances surrounding the expert's testimony were of such necessity as to require the larger fee"); Khoury v. Seastrand, 132 Nev. Adv. Op. 52, 377 P.3d 81, 95 (2016) ("[B]ecause the district court awarded expert fees in excess of $ 1,500 without stating a basis for its decision, we hold that the district court abused its discretion."). We therefore reverse the district court's award for costs to Gabrielle and deny her cross-appeal for attorney fees.

* * * *

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. We reverse the alimony award, because Gabrielle received income-producing assets as her share of the community property that obviated any arguable basis for alimony. We affirm the district court's unequal disposition of community property due to Dennis's spending on extramarital affairs and gifts to family, but reverse the unequal disposition of property based on Dennis's everyday consumption. We remand for the district court to consider the accumulation and waste of community property between its ineffective oral termination of community property and the actual termination of community property upon the entry of the written divorce decree. Finally, we reverse the sanctions for violations of the joint preliminary injunction and the award of costs to Gabrielle.

We concur:

Gibbons, C.J.

Parraguirre, J.

Douglas, Sr. J.

HARDESTY, J., with whom STIGLICH, J., agrees, concurring in part and dissenting in part:

While I concur with the majority on all other issues, I must dissent to the reversal of the district court's award of alimony for three reasons. First, the majority disregards our deferential standard of review and the wide discretion vested in the district court to award alimony in the nature of compensation for economic losses as a result of the marriage and divorce, including to equalize post-divorce earnings or maintain the marital standard of living. Second, the majority, after spending considerable time lamenting the absence of a statutorily defined purpose for alimony in our statutes, ultimately summarizes Nevada's jurisprudence: "alimony can be 'just and equitable' both when necessary to support the economic needs of a spouse and to compensate for a spouse's economic losses from the marriage and divorce, including to equalize post-divorce earnings or help maintain the marital standard of living." Majority opinion ante at ----. Then, inexplicably and without discussing the district court's reasoning to support a post-divorce earning disparity, the majority simply declares that Gabrielle's income-producing assets from her share of the community property "obviated any basis for awarding alimony." Id. at 14. In effect, in the majority's view, Gabrielle has earned enough. And third, without one citation to the record or the district court's decision, the majority speculates that the district court's award of alimony "could have been improperly motivated by Dennis's marital indiscretions and role in bringing about the end of the marriage." Id. at 19.

There is no common law of alimony, it "is wholly a creature of statute." Rodriguez v. Rodriguez, 116 Nev. 993, 998, 13 P.3d 415, 418 (2000) (internal quotation marks omitted). When granting a divorce, a district court may award alimony to either spouse "as appears just and equitable." NRS 125.150(1)(a). When determining if alimony is just and equitable, a district court must consider the 11 factors listed in NRS 125.150(9), See DeVries v. Gallio, 128 Nev. 706, 711-13, 290 P.3d 260, 264-65 (2012). The district court may also consider any other relevant factor, but it must not consider the marital fault or misconduct, or lack thereof, of the spouses. Rodriguez, 116 Nev. at 999, 13 P.3d at 419 ("Alimony is not a sword to level the wrongdoer. Alimony is not a prize to reward virtue."). The decision of whether to award alimony is within the discretion of the district court. Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974) ("In determining whether alimony should be paid, as well as the amount thereof, courts are vested with a wide range of discretion."). A district court's decision in a divorce proceeding is reviewed for an abuse of discretion. Shydler v. Shydler, 114 Nev. 192, 196, 954 P.2d 37, 39 (1998). "Rulings supported by substantial evidence will not be disturbed on appeal." Id.

Against this deferential standard of review, we evaluate the district court's 102 pages of Findings of Fact and Conclusions of Law in this case, 14 pages of which are devoted to the alimony award. After reciting the applicable provisions of NRS 125.150 concerning the district court's statutory authority to award alimony, the district court lists and later analyzes all of the factors in NRS 125.150(9). Before conducting an analysis of the evidence, however, the district court noted the absence of statutory guidelines to provide guidance as to the relative weight to be applied to each factor; discussed the scholarly article by the Honorable David A. Hardy in Nevada Alimony: An Important Policy in Need of a Coherent Policy Purpose, 9 Nev. L. J. 325 (2009) ; recognized the difference between alimony based on "need" and support based on compensation for economic losses as a result of the marriage and divorce; and recited our rule in Shydler , 114 Nev. at 198, 954 P.2d at 40 (quoting Shydler to explain that ' "[a]lthough the amount of community property to be divided between the parties may be considered in determining alimony,' a spouse should not be required to deplete his/her share of the community property for support"). Finally, the district court noted the admonition in Rodriguez against awarding alimony to "level the wrongdoer." Rodriguez, 116 Nev. at 999, 13 P.3d at 419.

The district court's analysis is both thorough and specific. It begins by finding "there is a sufficient factual basis for the Court to consider an award of support that is in the nature of compensation for economic losses as a result of the marriage and divorce." The district court then supported its finding with a detailed analysis of the factors listed in NRS 125.150(9)(a), (e), and (k), including extensive comparisons of the parties' pre- and post-divorce earnings. The district court correctly found that "Dennis'[s] income historically has dwarfed Gabrielle's income throughout their marriage" and projected the difference in the parties' average monthly net income to be $ 54,200.

The district court next analyzed Dennis's argument under NRS 125.150(9)(b) and (j) that Gabrielle will leave the marriage with assets that could earn passive income of between $ 500,000 and $ 800,000 annually.

However, as the district court recognized, Gabrielle's standard of living showed annual expenses (between $ 180,000 and $ 240,000) substantially in excess of her projected monthly income of $ 3,800. In this 25-year marriage, the district court found that "Gabrielle relied on the existence of the parties' marriage to maintain the standard of living achieved as a result of Dennis'[s] income capacity" and awarded spousal support in the amount of $ 18,000 per month for 108 months. Consistent with the principles in Sargeant v. Sargeant, 88 Nev. 223, 228-29, 495 P.2d 618, 621-22 (1972), the district court reduced the award to a lump sum payment of $ 1,630,292.

The majority's determinations that the district court "disregarded this passive income because the award was not need-based" and "should have considered the nature and amount of the property disposition, including passive income from the assets awarded to the parties, when determining whether Gabrielle needed alimony to maintain her standard of living," majority opinion ante at ---- - ----, are, quite simply, wrong. Neither statement is supported by the record or the district court's findings. And certainly, neither the record nor the findings shows an abuse of discretion by the district court.

Additionally, the majority's conclusion that the income-producing assets distributed to Gabrielle completely "obviated any basis for awarding alimony,"id. at 14, misapprehends the district court's reasoning for the award. The district court plainly followed the rule in Shydler that the division of community property should be considered, but a spouse should not be required to deplete his or her share of the community property for support. In this, the district court specifically found, consistent with our recognized rule, that alimony can be "just and equitable" to compensate for a spouse's economic losses from the marriage and divorce, including to equalize post-divorce earnings or maintain the marital standard of living. The award in this case had to do with the disparity in the parties' post-divorce earnings, the right to which arose out of Gabrielle's reliance on the existence of the marriage and Dennis's substantial income capacity. Other than the majority's declaration that her income producing assets "obviated any basis for awarding alimony," the majority fails to address or even explain why Gabrielle should consume her assets in order to resolve a post-divorce income disparity.

Finally, the majority resorts to pure speculation when it claims that the district court's alimony award "could have been improperly motivated by Dennis's marital indiscretions and role in bringing about the end of the marriage." Majority opinion ante at ----. To the contrary, the district court was careful to recognize the admonition against doing so in its conclusions of law. The district court observed that it "should not consider the respective 'merits' of the parties in adjudicating the issue of spousal support. ... '[Alimony] is not a sword to level the wrongdoer,' nor is it a 'prize to reward virtue' " (quoting Rodriguez, 116 Nev. at 999, 13 P.3d at 419 ). To suggest that the district court did otherwise impugns the integrity and extraordinary effort of the district court to resolve this issue within the confines of the law.

I would affirm the award of alimony because the district court did not abuse its discretion in making this award.

I concur:

Stiglich, J.

      NRS 125.150(9) provides:
      In addition to any other factors the court considers relevant in determining whether to award alimony and the amount of such an award, the court shall consider:
      (a) The financial condition of each spouse;
      (b) The nature and value of the respective property of each spouse;
      (c) The contribution of each spouse to any property held by the spouses pursuant to NRS 123.030 ;
      (d) The duration of the marriage;
      (e) The income, earning capacity, age and health of each spouse;
      (f) The standard of living during the marriage;
      (g) The career before the marriage of the spouse who would receive the alimony;
      (h) The existence of specialized education or training or the level of marketable skills attained by each spouse during the marriage;
      (i) The contribution of either spouse as homemaker;
      (j) The award of property granted by the court in the divorce, other than child support and alimony, to the spouse who would receive the alimony; and
      (k) The physical and mental condition of each party as it relates to the financial condition, health and ability to work of that spouse.

      These were the only two possible bases for alimony, as Gabrielle was not a homemaker and did not forgo career opportunities as a result of her marriage to Dennis. Gabrielle argues that she contributed to Dennis's success and to the marriage by picking up and moving whenever it was necessary to further Dennis's career, but the district court expressly found that Gabrielle's nursing career allowed her the flexibility to move and that her career did not suffer by moving to different locations for Dennis.

      The dissent takes issue with our characterization that the district court disregarded the passive income Gabrielle would earn from the assets she received. But the district court's order, set forth in relevant part below, did just that:
      Recognizing that this is not a need based spousal support case, this Court similarly (as with Dennis' incentive compensation income) discounts the passive income that Gabrielle will earn from the property that she will receive as part of the property division.

      Citing Shydler , the dissent argues that Gabrielle should not have to consume her community asset distribution to resolve a post-divorce income disparity. The district court expressly found, however, that "[u]nlike Shydler, supra , this is not a situation in which Gabrielle will need to deplete or rely on the principle amounts of her property award in the divorce for her support."

      As a result, we also reject Gabrielle's arguments in her cross-appeal that she should have received a larger alimony award.

      We reject Gabrielle's cross-appeal for lost opportunity costs from forgone return on investments from the wasted assets, as well as her claim that Dennis's yacht purchase and sale was dissipation. See Putterman, 113 Nev. at 609, 939 P.2d at 1048-49 (distinguishing disproportionate consumption from dissipation). Given the speculative nature of lost opportunity costs, and that the marital estate grew exponentially during this time period, the district court appropriately found that lost opportunity cost did not amount to a compelling reason for an unequal disposition of property.

      To the extent these expenditures over $ 10,000 were included as expenses "not elsewhere classified" by Gabrielle's forensic accountant, which we reversed as ordinary overconsumption, the district court may reconsider on remand whether specific large expenditures violated the joint preliminary injunction, which could provide a compelling reason for an unequal disposition of community property.


source: Caselaw Access Project

license: Public Domain

text:
    Zulfiya M. NICHOLSON, Appellant, v. Robert NICHOLSON, Respondent.
    No. 77169
    Supreme Court of Nevada.
    FILED APRIL 24, 2019
    Dismissed.


text:
    The LAKESHORE HOUSE LIMITED PARTNERSHIP, a Nevada Limited Partnership; and Emerson Hedges, LLC, a Nevada Limited Liability Company, Appellants, v. BANK OF THE WEST, a California Banking Corporation, Respondent.
    No. 75501
    Supreme Court of Nevada.
    FILED APRIL 25, 2019
    AFFIRMED.


author: PER CURIAM:

text:
    Teddie C. CRAIG, Appellant, v. Dr. DONNELLY; Nurse Ballantyne; Nurse Nancy; Nurse Donnelly; and Sgt. Chappy, Respondents.
    No. 75050-COA
    Court of Appeals of Nevada.
    FILED FEBRUARY 28, 2019
    Teddie C. Craig, Carson City, in Pro Se.
    Aaron Ford, Attorney General, and Frank A. Toddre II, Senior Deputy Attorney General, Carson City, for Respondents.
    BEFORE DOUGLAS, A.C.J., TAO and GIBBONS, JJ.
   PER CURIAM:

In this appeal, we consider whether a plaintiff must comply with the jurisdictional naming requirement set forth in NRS 41.031 and NRS 41.0337 in order to properly proceed with civil rights claims brought pursuant to 42 U.S.C. § 1983. NRS 41.031 and NRS 41.0337 require plaintiffs bringing state tort claims against the State of Nevada and state employees to comply with certain requirements-particularly, naming the State as a party to the action-in order to properly invoke the State's waiver of sovereign immunity. Under 42 U.S.C. § 1983, plaintiffs may bring claims for damages against any person who, under color of state law, deprives the plaintiff of his or her civil rights. And it is well established that the State is not considered a "person" for the purposes of bringing a § 1983 claim; thus, such claims cannot be maintained against the State.

At issue here is how NRS 41.031 and NRS 41.0337 's requirement that the State be named as a party to invoke a waiver of Nevada's sovereign immunity operates when a plaintiff brings an action against state employees pursuant to both NRS Chapter 41 and 42 U.S.C. § 1983. We hold that, while a plaintiff must name the State as a party to any state tort claims in order to comply with NRS 41.031 and NRS 41.0337, this statutory requirement does not apply to 42 U.S.C. § 1983 claims, even when brought in the same complaint as a plaintiff's state tort claims. Indeed, the State cannot be named as a party to a plaintiff's § 1983 civil rights claims.

In this case, plaintiff's complaint arguably asserted both state tort claims and 42 U.S.C. § 1983 claims against the respondent state employees, but did not name the State of Nevada as a party to any of these claims. Accordingly, we affirm the district court's order dismissing the complaint to the extent plaintiff asserted state tort claims under NRS 41.031 and NRS 41.0337, but reverse and remand the district court's dismissal as to those claims made pursuant to 42 U.S.C. § 1983.

BACKGROUND

Plaintiff Teddie Craig is an inmate at the Lovelock Correctional Center. Craig filed a civil rights and torts complaint pursuant to 42 U.S.C. § 1983 and NRS 41.031 naming respondents, who are employees of the Nevada Department of Corrections, as defendants in their individual capacities and alleging that these parties violated his First, Eighth, and Fourteenth Amendment rights under the United States Constitution.

Respondents subsequently moved to dismiss the complaint, arguing that Craig failed to properly name the State of Nevada as required by NRS 41.031 and NRS 41.0337, and therefore, failed to invoke the State's waiver of sovereign immunity such that the district court lacked jurisdiction over the matter. Craig opposed the motion, arguing that the prison, as an arm of the State, is not a person for purposes of 42 U.S.C. § 1983, and asserting that, as a result, he was withdrawing his reliance on NRS 41.031 as a basis for the action. Craig also moved to strike any reference to NRS 41.031 as a basis for his complaint for the purpose of giving the district court jurisdiction over his § 1983 claims.

The district court granted respondents' motion to dismiss, concluding that Craig failed to name the State of Nevada in his complaint, as required by NRS 41.031, and that he therefore failed to properly invoke the State's waiver of sovereign immunity. Based on this determination, the district court held that it lacked subject matter jurisdiction over the case, noting that Craig could not plead around this jurisdictional defect by attempting to strike the reference to the relevant statute.

Craig now appeals, contending that the district court erred in dismissing his case because he brought federal civil rights claims under 42 U.S.C. § 1983. Respondents disagree, arguing that dismissal was proper because Craig failed to properly invoke the State's waiver of sovereign immunity under NRS 41.031, and therefore, the district court did not have jurisdiction over the case.

ANALYSIS

The district court may properly dismiss a complaint when a lack of subject matter jurisdiction is apparent on the face of the complaint. Rosequist v . Int'l Ass'n of Firefighters Local 1908 , 118 Nev. 444, 448, 49 P.3d 651, 653 (2002), overruled on other grounds by Allstate Ins. Co. v. Thorpe, 123 Nev. 565, 573 n.22, 170 P.3d 989, 995 n.22 (2007) ; see NRCP 12(h)(3). This court reviews a district court's order granting a motion to dismiss for lack of subject matter jurisdiction de novo. See Am. First Fed. Credit Union v. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015) (reviewing a district court order dismissing a case for lack of subject matter jurisdiction de novo).

By statute, the State of Nevada has waived its sovereign immunity from civil liability in limited circumstances. See NRS 41.031. NRS 41.031 provides that, to properly invoke the State's waiver of immunity and pursue a civil action against the State, a plaintiff must name "the State of Nevada on relation of the particular department, commission, board or other agency of the State whose actions are the basis for the suit." Additionally, NRS 41.0337 requires that, to pursue a tort claim against a state employee, the complaint must name the State as a party pursuant to NRS 41.031. Thus, NRS 41.031 and NRS 41.0337 require that, to pursue a claim against the State or a state employee acting within the scope of his or her employment, a plaintiff must name the State of Nevada as a defendant.

Here, Craig's complaint set forth 42 U.S.C. § 1983 claims while also providing that jurisdiction for his claims existed under NRS 41.031. And the district court dismissed the complaint, in its entirety, for failure to name the State of Nevada as a party pursuant to NRS 41.031.

Insofar as Craig's complaint can be read to have asserted state tort claims against the respondent state employees pursuant to NRS 41.031, dismissal as to those claims was required. As detailed above, NRS 41.031 and NRS 41.0337 require that the State, on relation of the particular department, be named as a party to any complaint setting forth tort claims against state employees. And here, it is undisputed that Craig failed to name the State as a party to the action. Accordingly, the district court was required to dismiss any state tort claims that Craig brought against respondents for lack of subject matter jurisdiction. See NRS 41.031 ; NRS 41.0337 ; Rosequist, 118 Nev. at 448, 49 P.3d at 653.

This does not end our analysis, however, as the district court went on to determine that NRS 41.031 and NRS 41.0337 also required dismissal of Craig's 42 U.S.C. § 1983 claims for failing to name the State as a party. The Nevada appellate courts have not addressed whether NRS 41.031 and NRS 41.0337 require a plaintiff to name the State as a party to § 1983 claims brought against state employees in their individual capacities, and we take this opportunity to provide guidance on this issue.

42 U.S.C. § 1983 allows a plaintiff to bring civil rights claims against any person who, under color of any statute, deprives the plaintiff of any rights, privileges, or immunities secured by the United States Constitution. 42 U.S.C. § 1983. Importantly, states are not "persons" for purposes of 42 U.S.C. § 1983 actions, and thus, a plaintiff cannot bring a § 1983 action against a state. See Will v. Mich. Dep't of State Police , 491 U.S. 58, 64-70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).

Similarly, when state officials or employees are sued in their official capacities, such actions are truly against the office, not the individual, such that the action is effectively against the state itself. Id. at 71, 109 S.Ct. 2304 ; see also N. Nev . Ass'n of Injured Workers v. Nev . State Indus. Ins. Sys., 107 Nev. 108, 114-15, 807 P.2d 728, 732 (1991) (applying Will to determine that § 1983 claims could not be maintained against a Nevada state agency or state officials and employees in their official capacities). Therefore, state officials and employees are likewise not "persons" for purposes of § 1983 actions when sued in their official capacities and such claims cannot be brought against them in this capacity. Will , 491 U.S. at 71, 109 S.Ct. 2304 ; N. Nev. Ass'n of Injured Workers, 107 Nev. at 114-15, 807 P.2d at 732.

Because neither the State nor state employees in their official capacities can be proper defendants to 42 U.S.C. § 1983 claims, NRS 41.031 and NRS 41.0337 necessarily do not apply to such claims. As a result, the respondent state employees, in their individual capacities, were the proper defendants to Craig's § 1983 claims, not the State. See Hafer v. Melo , 502 U.S. 21, 27-28, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (holding that state officials may be sued in their personal or individual capacities under § 1983, even if their actions were taken as part of their official duties).

Beyond the fact that 42 U.S.C. § 1983 claims cannot be maintained against the State, to the extent that dismissal of Craig's § 1983 claims based on a failure to invoke Nevada's sovereign immunity under NRS 41.031 and NRS 41.0337 would provide immunity over and above what is already provided by § 1983, such an application of Nevada's statutes would violate the supremacy clause of the United States Constitution. See Howlett v. Rose, 496 U.S. 356, 375, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (explaining that § 1983 claims may be brought in state courts and are not subject to state sovereign immunity defenses because allowing "immunity over and above those already provided in § 1983... directly violates federal law"); Martinez v . Cal., 444 U.S. 277, 284 n.8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (explaining that "[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law" because it would violate the supremacy clause (internal quotation marks omitted)). As a result, NRS 41.031 and NRS 41.0337 cannot bar Craig from pursuing his 42 U.S.C. § 1983 claims against the respondent state employees, in their individual capacities, on sovereign immunity grounds.

Thus, when a plaintiff seeks to bring both state tort claims and 42 U.S.C. § 1983 claims against state employees, the claims should be structured as follows. Any state tort claims must name not only the state employees, but must also include the State, on relation of the particular department, as a party to those particular claims in order to comply with NRS 41.031 and NRS 41.0337 and perfect a waiver of Nevada's sovereign immunity. Any claims brought pursuant to § 1983, however, need only name the state employees, in their individual capacities, as parties to the § 1983 claims. The plaintiff need not-and indeed cannot-name the State as a party to the 42 U.S.C. § 1983 claims.

CONCLUSION

Based on the foregoing analysis, we conclude that, while the district court properly dismissed any state tort claims brought against the respondent state employees for failing to name the State as a party as required by NRS 41.031 and NRS 41.0337, it erred in applying these statutes to dismiss Craig's 42 U.S.C. § 1983 claims. With regard to the § 1983 claims, Craig's complaint properly named the state employees, in their individual capacities, as parties and not the State, as required to bring claims under § 1983. Accordingly, we affirm the dismissal of any state tort claims in Craig's complaint, but reverse and remand the dismissal of Craig's complaint as to his 42 U.S.C. § 1983 -based causes of action.

      It is not clear that Craig actually asserted any state tort claims in his complaint, as he appears to only assert constitutional violations as causes of action. Indeed, Craig's complaint was filed using a standard form entitled, "Civil Rights Complaint pursuant to 42 U.S.C. § 1983" and Craig merely included NRS 41.031 as an additional statute providing jurisdiction. Nonetheless, to the extent his complaint could be read as including state tort claims, Craig waived them in his opposition to the motion to dismiss.

      We note that our conclusion on this point is in line with those reached by several of our sister states who have addressed similar questions. See , e.g., Besser v. Dexter , 68 Ohio App.3d 510, 589 N.E.2d 77, 79 (1990) ("The procedure set forth in [Ohio's waiver of sovereign immunity statute] applies to state law claims against the state of Ohio and/or its employees. It has no application to federal claims whether brought in federal or state court...."); Watkins v. Pa. Dep't of Corr., 196 A.3d 272, 274 (Pa. Commw. Ct. 2018) ("Section 1983 claims may be brought in the courts of this Commonwealth and are not subject to state sovereign immunity defenses.").

      In light of our resolution of this case, we deny all other requests for relief currently pending in this matter.


author: JERRY L. GOODMAN, JUDGE:

text:
    In re the Marriage of: Jana Drummond EVANS, Petitioner/Appellant, v. George Edward EVANS, Respondent, and Kirk & Chaney, PLLC, Appellee.
    Case Number: 115034 Comp to 114270 115600
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Decided: May 8, 2018 Mandate Issued: July 25, 2018
    Christopher A. Wood, CHRISTOPHER A. WOOD & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Appellant
    Thomas J. Daniel, IV, Allen Campbell, KIRK & CHANEY, Oklahoma City, Oklahoma, for Appellee
   JERRY L. GOODMAN, JUDGE:

¶ 1 Jana Drummond Evans (Client) appeals an April 29, 2016, order granting Kirk & Chaney's (Law Firm) motion to enforce attorney's lien. Based upon our review of the record and applicable law, we affirm.

BACKGROUND

¶ 2 This is one of three companion appeals assigned to this Court arising from a divorce action. In Appeal No. 114,270, Client seeks review of the trial court's August 10, 2015, order denying her motion to correct, open, modify, or vacate the Decree of Dissolution of Marriage. In Appeal No. 115,600, Client seeks review of the trial court's November 9, 2016, order granting Law Firm's application for an attorney's fee, which sought fees incurred in enforcing the attorney's lien. In the present case, Appeal No. 115,034, Client seeks review of the trial court's April 29, 2016, order granting Law Firm's motion to enforce attorney's lien.

¶ 3 Briefly, Law Firm represented Client in a divorce action which culminated in a divorce decree entered on May 11, 2015. On April 7, 2015, Law Firm filed a notice of attorney's lien pursuant to 5 O.S.2011 and Supp. 2014, § 6. On September 1, 2015, Law Firm filed a motion to enforce attorney's lien, asserting Client owed Law Firm $47,891.82. Client filed multiple objections, asserting Law Firm's fee was excessive and unreasonable because Law Firm made legal and mathematical errors during the legal representation resulting in a reduced division of the marital estate.

¶ 4 On December 4, 2015, Client filed a counterclaim for negligence. Client sought reimbursement of excessive fees paid and damages. In addition, on December 9, 2015, Client filed an objection to jurisdiction of special judge and motion to transfer to district court. Client asserted the special judge's jurisdiction was limited to $10,000.00 pursuant to 20 O.S.2011, § 123(A)(1). Law Firm responded, asserting the attorney-lien enforcement was an equitable proceeding ancillary to the original divorce proceeding. Thus, the special judge may decide this proceeding pursuant to 20 O.S.2011, § 123(A)(9). Finally, Law Firm asserted Client should file a separate action for alleged malpractice. By order filed on January 15, 2016, trial court denied Client's objection to jurisdiction and motion to transfer to district court. The court further dismissed Client's counterclaim as not properly filed with the court.

¶ 5 An evidentiary hearing was subsequently held on December 11, 2015, January 15, March 11, March 30, and April 4, 2016. By order entered on April 29, 2016, the trial court granted Law Firm's motion to enforce attorney's lien in the amount of $47,891.82. Client appeals.

STANDARD OF REVIEW

¶ 6 When the appeal raises an issue of the reasonableness of an attorney's fee awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, ¶ 32, 932 P.2d 1091, 1097 ; State ex rel. Burk v. Oklahoma City , 1979 OK 115, ¶ 22, 598 P.2d 659, 663. To establish an abuse of discretion, the appellant must show the trial court made a clearly erroneous conclusion, which resulted in a judgment against reason and evidence, before such an award may be reversed. Green Bay Packaging, Inc. , at ¶ 32, at 1097 ; Broadwater v. Courtney , 1991 OK 39, ¶ 7, 809 P.2d 1310, 1312 ; Abel v. Tisdale , 1980 OK 161, ¶ 20, 619 P.2d 608, 612.

ANALYSIS

¶ 7 Oklahoma law recognizes two types of liens by which an attorney may secure payment for his or her services: (1) a special or charging lien; and (2) a common-law possessory or retaining lien. Mehdipour v. Holland , 2007 OK 69, ¶ 20, 177 P.3d 544, 548. In the present case, Law Firm sought to enforce a special or charging lien. An action to enforce a charging lien is an equitable proceeding that may be brought in a proceeding ancillary to the main litigation or in an independent action. Id . at ¶ 25, at 549.

¶ 8 Client challenged Law Firm's fee as excessive and unreasonable because of purported legal and mathematical errors made during their legal representation resulting in a reduced division of the marital estate. Because a court exercises its equitable powers in enforcing an attorney's charging lien, it may inquire into the reasonableness of the asserted fee for purposes of enforcing the lien.

¶ 9 Rule 1.5 of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch.1, app.3-A, provides attorneys have a professional responsibility not to make an agreement for, charge, or collect unreasonable fees or expenses. In re Adoption of Baby Boy A , 2010 OK 39, ¶ 25, 236 P.3d 116, 124. Rule 1.5 lists eight factors to be considered in determining the reasonableness of the contract, charge, or fee. Id . In addition, State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, established a two-part reasonableness test for an attorney's fee: 1) a base fee calculated by multiplying hours worked by an hourly rate, and 2) a bonus or incentive fee calculated under eight factors. In re Adoption of Baby Boy A , 2010 OK 39, ¶ 26, 236 P.3d 116, 124. Generally referred to as the Burk criteria, the same eight factors are listed for determining the amount of an attorney's fee: 1) time and labor required, novelty and difficulty of the questions involved, and skill requisite to properly perform the legal services; 2) the likelihood the representation will preclude other employment by the attorney; 3) customary charge in the community for similar legal services; 4) amount involved and results obtained; 5) time limitations imposed by the client or the circumstances; 6) nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of the attorney performing the legal service; and 8) whether the fee is fixed or contingent. Id . at ¶ 25 fn. 9, 129 fn. 9. The Burk criteria are the standard by which courts test the reasonableness of attorney fee contracts as well as fee awards. Id . at ¶ 27, at 124.

¶ 10 Parties are free to contract for a reasonable attorney's fee. However, if the fee is challenged as excessive or unreasonable, the trial court should take evidence as to the reasonableness of the fee and has the power to fix an attorney's fee that is reasonable and commensurate with the work performed by the attorney. In re Adoption of Baby Boy A , 2010 OK 39, at ¶ 33, 236 P.3d at 126. The Supreme Court has long held the party moving for an attorney's fee has the duty of demonstrating the reasonableness of the fee to the trial court. Id. See also Oliver's Sports Center, Inc. v. National Std. Ins. Co. , 1980 OK 120, ¶ 8, 615 P.2d 291 (an attorney seeking an attorney's fee has the burden to present to the court detailed time records of the work performed and evidence of the reasonable value for the services performed for different types of legal work.). The reasonableness of an attorney's fee is a question for the trier of fact, Arkoma Gas Co. v. Otis Engineering Corp., 1993 OK 27, ¶ 8, 849 P.2d 392, 394, and the fee must be supported by evidence and reason. Finnell v. Seismic, 2003 OK 35, ¶ 18, 67 P.3d 339, 346-47.

¶ 11 Because "the determination of the reasonableness of an attorney's fee is particularly within the province of a trial court," Marvel v. Miken , 1994 OK CIV APP 150, ¶ 6, 889 P.2d 903, 905, we will affirm a trial court's award of an attorney's fee absent an abuse of discretion. Abel v. Tisdale , 1980 OK 161, ¶ 20, 619 P.2d 608, 612. An abuse of discretion will only be found where the trial court made a "clearly erroneous conclusion and judgment against reason and evidence." Id . See also Oklahoma Turnpike Auth. v. Asher , 1993 OK 136, ¶ 7, 863 P.2d 1205, 1207. Furthermore, a trial judge's decision comes to a court of review clothed with a presumption of correctness. Willis v. Sequoyah House, Inc. , 2008 OK 87, ¶ 15, 194 P.3d 1285, 1290.

¶ 12 In the present case, Law Firm addressed the Burk factors at the hearing before the trial court. Law Firm introduced detailed time records of the work it performed for Client, affirmatively testifying that its time records accurately reflected the time and labor required in the case. In addition, counsel for Law Firm testified he has considerable experience in divorce matters, having practiced primarily domestic law for over twenty-nine years, has an AV rating in Martindale-Hubbell, and is listed in the area of family law as one of the "Best Lawyers in America." Counsel noted they represented Client for approximately twenty-one months against very capable opposing counsel in a hard-fought divorce case that consisted of a marital estate valued at almost $4.5 million dollars. Issues included separate property, significant stock and stock options, support alimony, child support, contempt, and child custody. Law Firm asserted that due to its efforts, Client was awarded separate assets worth over $1.2 million, plus stock and stock options, as well as $790,000.00 in property division alimony, $4,000.00 per month in support alimony for three years, and $3,500.00 per month for child support. With respect to separate property issues, Law Firm noted Husband claimed over $2 million of Client's property was marital property. The trial court ultimately found only $91,322.00 was marital property and the rest was Client's separate property.

¶ 13 Law Firm also introduced a copy of its attorney fee contract with Client that established the agreed hourly rate. Client did not object to the agreed hourly rate as unreasonable. In addition, Client did not specifically object to the number of hours Law Firm incurred in its representation of Client. Rather, in essence, Client asserted she did not receive a reasonable value for the services she paid for due to alleged legal and mathematical errors by Law Firm during trial. , Thus, she asserts the fee is unreasonable.

¶ 14 The trial court conducted a thorough hearing addressing the reasonableness of the fee charged for the services performed, specifically reviewing each alleged error in representation. The trial court found Law Firm did submit the arguments to the trial court on Client's behalf and "did fervently fight for the calculations and computations that were ultimately not determined by the Court." In short, the trial court found Law Firm met their burden of proving reasonableness of their requested attorney's fee and that the charging lien should be enforced. Notably, Client's own expert witness testified Law Firm's fee was reasonable given the issues involved in the case. Based on our review of the record on appeal, we find no abuse of discretion and affirm the trial court's order granting Law Firm's motion to enforce attorney's lien. This assertion of error is therefore denied.

¶ 15 Client further contends the trial court erred by dismissing her negligence counterclaim. Client contends it is a compulsory counterclaim pursuant to 12 O.S.2011, § 2013(A).

¶ 16 Compulsory counterclaims are creatures of 12 O.S.2011, § 2013(A). Robinson v. Texhoma Limestone, Inc. , 2004 OK 50, ¶ 8, 100 P.3d 673, 675. Subsection 2013(A) requires a pleader to assert as a counterclaim any claim that arises out of the transaction or occurrence that is the subject matter of the opposing party's claim which the pleader has against the opposing party at the time of serving the pleading. The failure to assert a compulsory counterclaim bars a later action on that demand. Id . (citing McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 7, 979 P.2d 252, 255-56 ). The purpose of the compulsory counterclaim bar is to prevent multiplicity of litigation over related claims. Robinson , at ¶ 8, at 675 (citing Oklahoma Gas & Elect. Co. v. District Ct., Fifteenth Judicial Dist. , 1989 OK 158, ¶ 11, 784 P.2d 61, 64 ).

¶ 17 Oklahoma has not addressed whether a negligence, or malpractice, claim is a compulsory counterclaim required to be pled in response to a motion to enforce a attorney's charging lien.

¶ 18 In Computer One, Inc. v. Grisham & Lawless P.A. , 144 N.M. 424, 188 P.3d 1175 (2008), the New Mexico Supreme Court addressed this precise issue. A law firm represented Computer One through a settlement agreement. The law firm ultimately withdrew as counsel after Computer One asserted the settlement was unauthorized. The law firm filed a notice of a charging lien against the settlement proceeds in the original proceeding, which the trial court enforced. Subsequently, Computer One filed a legal malpractice claim against the law firm. The law firm moved for summary judgment, asserting the claim was barred as a compulsory counterclaim to its motion for a charging lien. The trial court agreed and granted summary judgment.

¶ 19 The New Mexico Supreme Court reversed, finding the malpractice claim was not a compulsory counterclaim because there was no adversarial relationship between Computer One and the law firm. The Court held its compulsory counterclaim rule, which is identical to Oklahoma's rule, is triggered by its "opposing party" provision. "An 'opposing party' must be one who asserts a claim against the prospective counterclaimant in the first instance. In other words, it is the adversarial nature of the relationship between the parties from the beginning that ... trigger[s] the compulsory counterclaim rule and its attendant res judicata effect." Id ."[O]ne must first be a 'party' before one can be an 'opposing party[,]' " and "an attorney does not transform his former client into either, merely by taking steps to secure attorney fees in the same underlying proceeding." Id . at 1182. Conversely, if the law firm had filed a separate suit for breach of contract against Computer One for its attorney's fee, then Computer One would have had to press its legal malpractice claim as a compulsory counterclaim. Id . at 1182.

¶ 20 Similarly, in Tilzer v. Davis, Bethune & Jones, L.L.C. , 288 Kan. 477, 204 P.3d 617, 624 (2009), the Kansas Supreme Court reversed the trial court which had held that Missouri's compulsory counterclaim rule, again similar to Oklahoma's rule, required the clients to assert their legal malpractice claims as a response to the attorney's motion to enforce an attorney's fee lien in the underlying Missouri lawsuit, stating:

By moving to enforce an attorney's fee lien in the underlying action, [the attorney] was proceeding against the judgment itself, not against the former client. Such an action does not transform the former client into an "opposing party " for purposes of the compulsory counterclaim rule. To invoke that rule, [the attorney] had to file an independent action against [the client], i.e. , had to become a "party" in the first instance.

Id . at 624 (emphasis added).

¶ 21 We find these authorities persuasive. As previously stated, an action to enforce a charging lien is an equitable proceeding that may be brought in a proceeding ancillary to the main litigation or in an independent action. Mediphour, at ¶ 25, at 549. In the present case, Law Firm filed its motion to enforce attorney's charging lien in a proceeding ancillary to the underlying divorce action. By seeking to enforce its attorney's fee lien in the underlying action, Law Firm was proceeding against the judgment itself and not against Client. Client did not become an opposing party for purposes of the compulsory counterclaim rule merely by Law Firm seeking to enforce its charging lien in the underlying action. Accordingly, the trial court properly dismissed Client's negligence/malpractice counterclaim as it was not a compulsory counterclaim. This assertion of error is therefore denied.

¶ 22 For her final assertion of error, Client contends the trial court erred by retaining jurisdiction in a matter that exceeded the jurisdiction of special judges.

¶ 23 Pursuant to 20 O.S.2011, § 123(A)(1), the jurisdictional limit of special judges is $10,000.00 for a claim and $10,000.00 for a counterclaim or setoff. However, § 123(A)(9) provides, "[a]ny matter, regardless of value, at any stage, whether intermediate or final, and whether or not title to property, real, personal, tangible, intangible, or any combination thereof, is to be determined, in a probate, divorce, domestic relations, ...."

¶ 24 Again, an action to enforce a charging lien is an equitable proceeding that may be brought in a proceeding ancillary to the main litigation or in an independent action. Mediphour, at ¶ 25, at 549. Law Firm filed its motion to enforce attorney's lien as an ancillary proceeding to the original divorce proceeding. Thus, we reject Client's assertion that the trial judge lacked jurisdiction or authority to hear and determine the motion to enforce attorney's lien.

¶ 25 The trial court's April 29, 2016, order granting Law Firm's motion to enforce attorney's lien is therefore affirmed.

¶ 26 AFFIRMED .

BARNES, P.J., and RAPP, J., concur.

      The Court has used the Burk criteria in cases where there is no incentive or bonus fee. In re Adoption of Baby Boy A , 2010 OK 39, at ¶ 26, 236 P.3d at 124.

      Client did object to a rate increase from $300.00 per hour to $325.00 per hour during Law Firm's representation of Client. The trial court found the attorney fee contract provided for the increase and that the increase was within the normal course of practice and therefore reasonable. We find no abuse of discretion.

      Client has filed a separate lawsuit for legal malpractice against Law Firm.

      Client contends, inter alia , that Law Firm did not hire an expert despite her request, that Law Firm failed to raise certain math errors in ex-husband's exhibits in its closing argument, Proposed Findings of Fact and Conclusions of Law, or the Response to Motion to Settle Journal Entry and Counter-Motion to Settle, and that Law Firm submitted a Proposed Decree of Dissolution of Marriage to the trial court that contained an error. Law Firm disputes Client's assertions, asserting it did not make any errors. Law Firm contends it presented all arguments to the trial court, noting Client has acknowledged that Law Firm did raise or address the purported errors with the trial court at trial, or in some instances, in the Motion to Settle Journal Entry or Counter-Motion. Law Firm further disputed that a Motion to Settle Journal Entry is the proper avenue to raise such errors with the trial court.

      Trial, April 4, 2016, p. 26, ll. 4-8.


author: OPINION BY JERRY L. GOODMAN, JUDGE:

text:
    In the MATTER OF the ESTATE OF Cliffton Fred WALKER, Deceased,
    Beverly Walker, Appellant, v. Gentner F. Drummond, Appellee.
    Case No. 116,753
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED September 18, 2018 Mandate Issued: October 17, 2018
    Brad E. Hilton, HILTON LAW OFFICE, Skiatook, Oklahoma, for Appellant
    Harvey C. Grauberger, DRUMMOND LAW, PLLC, Tulsa, Oklahoma, for Appellee
   OPINION BY JERRY L. GOODMAN, JUDGE:

¶ 1 Beverly Walker appeals a February 2, 2018, order denying her motion to dismiss and Objection to Petition for Probate of Will, Appointment of Personal Representative, Determination of Identity of Heirs, Devisees and Legatees and Termination of Joint Tenancy. Based on our review of the record and applicable law, we reverse.

BACKGROUND

¶ 2 Cliffton F. Walker (Decedent) died on November 6, 2011. Decedent was an Osage Indian who died testate, leaving a Last Will and Testament. Decedent left behind his surviving spouse, Beverly Walker (Spouse), as his sole devisee/legatee. Decedent owned a fractional Osage headright interest. At the time of his death, he was a resident of Mayes County, Oklahoma.

¶ 3 On March 30, 2012, Gentner F. Drummond (Drummond) filed a Petition for Probate of Will, Appointment of Personal Representative, Determination of Identity of Heirs, Devisees and Legatees, and Termination of Joint Tenancy in the District Court of Osage County, Oklahoma, Case No. PB-2012-43. Drummond was nominated in the Will to serve as Executor, and on April 26, 2012, was appointed Personal Representative in the Osage County probate case. On November 29, 2016, an Order Approving First and Final Account, Petition for Decree of Distribution; Approval of Attorneys' Fees, Costs, and Expenses; and Discharge of Personal Representative was entered. No appeal was filed and the order is now final.

¶ 4 On September 7, 2017, Drummond filed a petition to probate Decedent's estate in Mayes County District Court, Case No. PB-2017-55. Spouse filed an objection, asserting the Mayes court did not have jurisdiction as Decedent's estate had previously been probated in Osage County. Spouse further filed a motion to dismiss for lack of jurisdiction, citing the finality of the Osage County order. Drummond filed a response, asserting the Osage County District Court lacked venue over Decedent's estate because it was not the county of which Decedent was a resident at the time of his death, citing 58 O.S.2011, § 5 and Presbury v. County Court of Kay County, Oklahoma , 1923 OK 127, 88 Okla. 273, 213 P. 311. Thus, its actions were void.

¶ 5 By order entered on February 2, 2018, the trial court denied Spouse's motion to dismiss and Objection to Petition for Probate of Will, Appointment of Personal Representative, Determination of Identity of Heirs, Devisees and Legatees and Termination of Joint Tenancy. Spouse appeals.

STANDARD OF REVIEW

¶ 6 We review de novo a district court's order on a motion to dismiss. Miller v. Miller , 1998 OK 24, ¶ 15, 956 P.2d 887, 894.

ANALYSIS

¶ 7 The issue on appeal is whether the Osage County District Court was a proper venue for probate of Decedent's estate. Drummond contends it was not, citing 58 O.S.2011, § 5 and Presbury v. County Court of Kay County, Oklahoma , 1923 OK 127, 88 Okla. 273, 213 P. 311.

¶ 8 The Oklahoma Supreme Court held in Presbury , 1923 OK 127, at ¶ 7, 88 Okla. 273, 213 P. at 312, that wills must be proved, and letters testamentary or of administration granted, first in the county of which the decedent was a resident at the time of his death. The Court relied on § 6193, Revised Laws 1910, which specifically provided:

Wills must be proved, and letters testamentary or of administration granted:
First. In the county of which the decedent was a resident at the time of his death, in whatever place he may have died.
Second. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the State. ...

Thus, the Legislature prioritized venue in which a probate action should be filed by its use of "First, Second, ...". The Legislature subsequently amended the statute, specifically removing the priority language. Title 58 O.S.2011, § 5 provides:

Wills must be proved, and letters testamentary or of administration granted in the following applicable situations:
1. In the county of which the decedent was a resident at the time of his death, regardless where he died.
2. In the county in which the decedent died, leaving an estate therein, the deceased not being a resident of this state.
3. In the county in which any part of the estate of the deceased may be, where the decedent died out of this state, and the decedent was not a resident of this state at the time of his death.
4. In the county in which any part of the estate may be and the decedent was not a resident of this state, but died within it, and did not leave an estate in the county in which he died.
5. In all other cases, in the county where application for letters is first made.

¶ 9 Accordingly, a priority no longer exists in the statute and a probate action may be filed in any of the applicable situations listed in § 5. As a result, venue was proper in Osage County District Court in PB-2012-43, as it was the county where application for letters was first made. The November 29, 2016, Order Approving First and Final Account, Petition for Decree of Distribution; Approval of Attorneys' Fees, Costs, and Expenses; and Discharge of Personal Representative in PB-2012-43 is final.

¶ 10 Therefore, the District Court erred by denying Spouse's motion to dismiss. The February 2, 2018, order denying Spouse's motion to dismiss is reversed.

¶ 11 REVERSED.

BARNES, P.J., and RAPP, J., concur.