Byrd v. Byrd

• Decision Date: 30 September 2021
• Docket Number: No. 80548-COA,80548-COA
• Citation: 501 P.3d 458
• Parties: Grady Edward BYRD, Appellant, v. Caterina Angela BYRD, Respondent.
• Court: Nevada Court of Appeals

501 P.3d 458

Grady Edward BYRD, Appellant,

v.Caterina Angela BYRD, Respondent.

No. 80548-COA

Court of Appeals of Nevada.

FILED SEPTEMBER 30, 2021

Mills & Anderson Law Group and Daniel W. Anderson and Byron L. Mills, Las Vegas, for Appellant.

Webster & Associates and Jeanne F. Lambertsen and Anita A. Webster, Las Vegas, for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA, JJ.

OPINION

By the Court, BULLA, J.:

Four years after entering a divorce decree incorporating a marital settlement agreement, the district court granted a motion to modify that decree under NRCP 60(b)(6), which allows for relief from a judgment for any justifiable reason besides those otherwise specifically listed in that rule, and awarded respondent lifetime alimony. In so doing, the court refused to allow appellant to participate virtually from the Philippines, where he resides. In this appeal from the district court's modification order, we determine (1) whether the divorce decree was properly reopened under NRCP 60(b)(6) based on alleged misrepresentations made when the marital settlement agreement was entered, (2) whether federal preemption precludes the district court from ordering alimony to be paid directly from a veteran's disability benefits as indemnification for waiving a portion of a military pension plan, and (3) whether a district court may summarily deny a party's request to testify via audiovisual transmission pursuant to Part IX-B(B) of the Nevada Supreme Court Rules.

We conclude that NRCP 60(b)(6) relief was inappropriate in the instant case, that federal law prohibits state courts from ordering reimbursement and indemnification from a veteran's disability payments for the purpose of offsetting military pension waivers, and that the district court must consider the relevant good cause factors and the policy in favor of allowing parties to appear via audiovisual transmission when considering such a request. Accordingly, we reverse and remand.

I.

Appellant Grady Byrd and respondent Caterina Byrd were married in 1983. Because Grady was an active military member, the couple moved frequently and eventually relocated to Las Vegas in 2008. That same year, however, the couple ceased cohabitation. In June 2014, the district court granted the parties a summary divorce and merged their marital settlement agreement (MSA) into the divorce decree. Later, Grady moved to the Philippines, where he currently resides.

Although the decree of divorce specifies that "neither party shall be required to pay spousal support to the other," it also provides that Grady will pay Caterina $1,500 per month to assist with her mortgage (the mortgage assistance provision) and that this payment may cease if Caterina's financial situation changes. The decree also provides that Caterina is entitled to 50 percent of Grady's military retirement pay. From 2014 until September 2018, Grady paid Caterina $3,000 per month total under these provisions.

In 2018, without explanation, Grady stopped making payments, and Caterina moved the district court to enforce the divorce decree. At the initial hearing on the motion, the district court opened discovery and set the matter for a status check but preliminarily concluded that the mortgage assistance provision constituted an alimony provision and that Grady was obligated to continue paying Caterina pending further proceedings. The court also found that 50 percent of Grady's military retirement pay was $1,500, as demonstrated by Grady paying Caterina $3,000 per month—$1,500 pursuant to the mortgage assistance provision and $1,500 as her portion of the retirement pay—for four years.

In April 2019, Grady filed a motion for reconsideration and argued that the district court's temporary order should be set aside, as the mortgage assistance provision was not an alimony provision and the parties mutually agreed to waive any alimony. Additionally, Grady argued that his net military retirement pay was $128.40 per month, entitling Caterina to $64.20 as her community share, and the remainder of his retirement pay was waived when he took disability pay pursuant to 10 U.S.C. § 1408 and 38 U.S.C. § 5305. Caterina opposed, arguing that the district court did not err in finding that Grady wrongfully terminated payments to Caterina and ordering him to continue the same. Caterina also counter-moved for relief from the decree pursuant to NRCP 60(b)(6) and to modify the decree, should the district court be inclined to grant Grady's motion for reconsideration. In particular, Caterina argued that, at the time of divorce, Grady misrepresented to her that his retirement pay was valued at approximately $3,000 per month, such that her 50-percent interest would be approximately $1,500 per month. Thus, she reasoned that if he intended for Caterina to waive alimony based on this misrepresentation, then he fraudulently induced Caterina into signing the MSA. At the hearing on Grady's motion, the district court set the matter for an evidentiary hearing and stated that he would be required to be present. Further, the court concluded that its temporary order¹ should be set aside, as the mortgage assistance provision was not alimony but rather constituted a community property distribution. The district court also ordered Grady to continue paying Caterina as previously ordered until such time that he proved her financial circumstances had changed, pursuant to the terms of the MSA.

Grady did not make monthly payments as ordered, and Caterina filed an emergency motion for an order to show cause why Grady should not be held in contempt. At the hearing on Caterina's motion, the courtroom clerk attempted to contact Grady at the phone number provided to the court, but the call failed to go through. Additionally, at the hearing, the court noted that Grady's counsel represented Grady would not pay Caterina, despite the court's interim orders, until the evidentiary hearing resolved the issues. Further, the district court noted at the hearing and in its subsequent order that Grady had not filed an opposition to the motion. Accordingly, the district court issued an order to show cause why Grady should not be held in contempt, to be heard at the same time as the evidentiary hearing to modify or set aside the divorce decree.

Prior to the evidentiary hearing, Grady filed a request with the district court to appear via audiovisual transmission, citing his inability to fly internationally because of a pulmonary condition. Although no order appears in Grady's appendix on appeal, he represented in his motion for reconsideration and on appeal that the district court summarily denied his request without any explanation. In its order following the evidentiary hearing, the district court likewise denied Grady's motion for reconsideration on this issue.

At the evidentiary hearing, which Grady did not attend, it was revealed through Caterina's testimony, as well as various documents, that prior to the couple's divorce, Grady had waived nearly $3,000 of his monthly retirement pay in favor of receiving veterans’ disability benefits pursuant to federal law. As a result, the value of Grady's pension was reduced from $3,017 to $128.40 per month, entitling Caterina to a monthly payment of only $64.20. But, according to Caterina's testimony, Grady represented at the time of the parties’ divorce that his monthly retirement pay was $3,017 and, therefore, under the decree he was obligated to pay her $3,000 per month—$1,500 pursuant to the mortgage assistance provision and $1,500 as her one-half interest in his military retirement, which was consistent with the payments Grady made for the first four years after the decree was entered, until he ceased paying in 2018. Notably, because Grady was not permitted to appear remotely and did not appear in person, he did not testify to rebut any of this evidence.

After the evidentiary hearing, the district court modified the decree, concluding, among other things, that (1) the alimony waiver was unenforceable; (2) because Grady waived a portion of his military retirement pay, he must continue to pay Caterina monthly from his veteran's disability benefits; (3) Grady owed Caterina a fiduciary duty, which he breached by misrepresenting his assets, thus making NRCP 60(b)(6) relief appropriate; (4) Caterina's request for NRCP 60(b)(6) relief was timely; (5) the divorce decree's mortgage assistance and military pension clauses were vague and ambiguous; and (6) Caterina was entitled to lifetime alimony. Grady now appeals.

In this appeal, we address the following issues: (1) whether the district court abused its discretion in modifying the decree of divorce under NRCP 60(b)(6), (2) whether the district court erred when it ordered Grady to pay alimony directly from his veteran's disability benefits, and (3) whether the district court abused its discretion when it summarily denied Grady's request to appear via audiovisual transmission.

II.

We first address the district court's decision to modify the divorce decree under NRCP 60(b)(6). When Grady stopped paying Caterina $3,000 per month, the amount she believed she was entitled to under the decree, Caterina moved to enforce the decree. After additional motion practice, the district court ultimately held an evidentiary hearing, concluded that portions of the decree should be set aside pursuant to NRCP 60(b)(6), and modified the decree to award Caterina lifetime alimony. Grady challenges this decision on appeal, asserting that NRCP 60(b) relief was improper.

The district court has inherent authority to interpret and enforce its decrees. Henson v. Henson , 130 Nev. 814, 820 n.6, 334 P.3d 933, 937 n.6 (2014) (citing In re Water Rights of the Humboldt River , 118 Nev. 901, 906-07, 59 P.3d 1226, 1229-30 (2002), for the proposition that the district court has inherent authority to enforce its orders); Kishner v. Kishner, 93 Nev. 220, 225, 562 P.2d 493, 496 (1977) (explaining that the district court "has inherent...