Landreth v. Malik

Decision Date12 May 2011
Docket NumberNo. 49732.,49732.
Citation251 P.3d 163,127 Nev. Adv. Op. 16
PartiesDlynn LANDRETH, Appellant,v.Amit MALIK, Respondent.
CourtNevada Supreme Court


Hansen Rasmussen, LLC, and Jonathan J. Hansen, Las Vegas, for Appellant.Robert W. Lueck, Las Vegas, for Respondent.Kathleen T. Breckenridge, Reno, for Amicus Curiae Family Law Section of Nevada State Bar.Lemons, Grundy & Eisenberg, and Robert Eisenberg, Reno, for Amicus Curiae Nevada District Court Judges' Association.Before the Court En Banc.


By the Court, HARDESTY, J.:

On December 24, 2009, this court issued an opinion in this appeal vacating the district court's default judgment for respondent Amit Malik. Thereafter, Malik filed a petition for rehearing pursuant to NRAP 40. We granted rehearing on July 22, 2010, and we now withdraw our December 24, 2009, opinion, and issue this opinion in its place.

In this appeal we consider two issues. First, we consider whether the Legislature has the constitutional authority to limit the powers of a district court judge in the family court division of a judicial district. We conclude that it does not. Article 6, Section 6(1) of the Nevada Constitution grants original and appellate jurisdiction to the district courts in the judicial districts of the state. Article 6, Section 6(2) permits the Legislature to establish a family court as a division of any judicial district and to prescribe its jurisdiction. Pursuant to the Constitution's grant of this authority, the Legislature established a family court division in the Second and Eighth Judicial Districts and limited the family courts' jurisdiction to matters specifically enumerated in NRS 3.223. However, all judges in the family court division are district court judges with authority to preside over matters outside the family court division's jurisdiction.1

This appeal involves an unmarried, childless couple, who previously lived together and now dispute the ownership of certain property. Although NRS 3.223 does not give the family court division jurisdiction over such matters, the Legislature does not have the constitutional authority to limit the constitutional powers of a district court judge in the family court division. Therefore, we hold that the district court judge sitting in family court did not lack the power and authority to dispose of this case merely because it involved a subject matter outside the scope of NRS 3.223.

Second, we must determine whether the district court abused its discretion when it denied appellant Dlynn Landreth's motion to set aside the default without considering whether Malik gave a proper notice of intent to take a default. A party is required to inquire into the opposing party's intent to proceed before requesting a default under this court's holding in Rowland v. Lepire, 95 Nev. 639, 600 P.2d 237 (1979), and Rule of Professional Conduct (RPC) 3.5A. Generally, one notice of an intent to request a default is sufficient for purposes of Rowland and RPC 3.5A. If, however, the party applying for a default grants subsequent time extensions, that party must also provide a subsequent notice of his or her intent to seek a default. Thus, we conclude that the district court abused its discretion when it denied Landreth's motion to set aside the default when Malik admitted to granting further time extensions without subsequently serving Landreth with another notice of intent to request a default.


Landreth and Malik met in July 2001 and lived together in Arizona, Texas, and Florida from 2001 until 2004 when, according to Landreth, she decided to end the relationship and move to Las Vegas. The parties never married and did not have children together.

Landreth asserts that she acquired a residence after she arrived in Las Vegas using her own money for the down payment and to make upgrades and improvements to the home. Landreth acknowledges that the couple briefly reunited when Malik moved to Las Vegas, but maintains that in September 2005 the relationship ended.

According to Malik, however, the decision to move to Las Vegas was mutual, with Landreth moving first. Malik contends that the $80,000 down payment used to purchase the home originated from the couple's joint checking account and that the $50,000 used to renovate the home was also drawn from that account.

In September 2006, Malik filed an action in the Eighth Judicial District Court's Family Court Division seeking half of the equity in the real property, half of certain personal property acquired during the relationship, and all of his separate personal property. Landreth was served with the complaint on October 4, 2006. She hired counsel to represent her, but she contends that she had difficulty communicating with her counsel because she was living in the Caribbean at the time.

During October and November, Malik granted Landreth numerous extensions of time to file an answer. Although no default had been entered, on December 14, 2006, Malik served Landreth with a notice of intent to apply for a default judgment. Landreth maintains that notwithstanding the notice of intent to apply for a default judgment, Malik thereafter granted her additional extensions of time to answer the complaint. Landreth contends that a letter from her counsel to Malik's counsel documented yet another oral agreement to extend time beyond December 19, 2006. However, on February 27, 2007, Malik requested, and the clerk entered, a default. Landreth filed her answer and a counterclaim on March 5, 2007. Malik served Landreth with a notice of default hearing on March 22, 2007. Subsequently, Landreth filed a motion to set aside the default. In the motion, Landreth asserted that Malik's counsel violated RPC 3.5A by failing to notify Landreth's counsel of his application for a default after Malik had granted Landreth more time to file her answer.

On May 18, 2007, the family court denied Landreth's motion to set aside the default, finding that Malik had offered Landreth numerous opportunities to answer, but that her delay warranted the entry of a default judgment. Thus, the court entered default judgment against Landreth. In upholding the entry of default, however, the district court failed to address Landreth's contention that Malik had granted her subsequent time extensions after giving her the notice of intent to take default.

In the default judgment, the family court judge concluded that the down payment was drawn from the couple's joint checking account. Therefore, the court found that Malik was co-owner of the Las Vegas home and was the owner or co-owner of other personal property located within the residence. Landreth appeals.


On appeal, Landreth claims for the first time that the family court lacked subject matter jurisdiction to hear Malik's case under Nevada Constitution Article 6, Section 6(2) because his case did not fit within those matters subject to the family court's jurisdiction under NRS 3.223. Specifically, Landreth argues that because the parties were not married, did not have children, and the litigation was limited to a dispute between two unmarried persons over the title and ownership of property, the family court lacked jurisdiction to hear the case. Malik counters that because the parties maintained a meretricious relationship, the family court properly exercised jurisdiction over the case pursuant to Eighth Judicial District Court Rule (EDCR) 5.02(a) and this court's precedent. We conclude that the family court judge did not lack the authority to resolve this case merely because it involved a subject matter outside NRS 3.223's scope.

As an initial matter, whether a court lacks subject matter jurisdiction “can be raised by the parties at any time, or sua sponte by a court of review, and cannot be conferred by the parties.” Swan v. Swan, 106 Nev. 464, 469, 796 P.2d 221, 224 (1990). However, if the district court lacks subject matter jurisdiction, the judgment is rendered void. State Indus. Ins. System v. Sleeper, 100 Nev. 267, 269, 679 P.2d 1273, 1274 (1984). We therefore address Landreth's subject matter jurisdiction argument, which requires that we review Article 6, Section 6 of the Nevada Constitution and interpret NRS 3.223.

Article 6, Sections 6(1) and 6(2) are ambiguous

To resolve whether the district judge sitting in the family court lacked authority to adjudicate Malik's case requires that we interpret Article 6, Section 6 of the Nevada Constitution. Constitutional interpretation utilizes the same rules and procedures as statutory interpretation. We the People Nevada v. Secretary of State, 124 Nev. 874, 881, 192 P.3d 1166, 1170 (2008). We will apply the plain meaning of a statute unless it is ambiguous, “meaning that it is susceptible to ‘two or more reasonable but inconsistent interpretations.’ Secretary of State v. Burk, 124 Nev. 56, ––––, 188 P.3d 1112, 1120 (2008) (quoting Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998)). If the constitutional provision is ambiguous, we look to the history, public policy, and reason for the provision. Id. Additionally, “the interpretation of a ... constitutional provision will be harmonized with other statutes.” We the People Nevada, 124 Nev. at 881, 192 P.3d at 1171.

We conclude that Article 6, Section 6 is ambiguous because it is susceptible to two or more reasonable interpretations. Together, Sections 6(1) and 6(2) may be reasonably interpreted to grant the Legislature the authority to establish family courts and either: (1) as Landreth argues, allow the Legislature to set limits on the subject matter jurisdiction of the family court and thus restrain the power and authority of the judge sitting in the family court division; or (2) as Malik argues, grant judges sitting in the family court division the same constitutional power and authority as other district court judges, including the power to adjudicate cases outside of the matters listed in NRS 3.223. Because both interpretations are reasonable...

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