Rodriguez v. Rodriguez

• Decision Date: 30 November 2000
• Docket Number: No. 30223.,30223.
• Citation: 13 P.3d 415,116 Nev. 993
• Parties: Glenda M. RODRIGUEZ, Appellant, v. Antonio RODRIGUEZ, Respondent.
• Court: Nevada Supreme Court

13 P.3d 415

116 Nev. 993

Glenda M. RODRIGUEZ, Appellant, v. Antonio RODRIGUEZ, Respondent.

No. 30223.

Supreme Court of Nevada.

November 30, 2000.

Andrew S. Myers, Las Vegas, for Appellant.

Randall J. Roske, Las Vegas, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

AGOSTI, J.:

In this appeal we are asked if marital misconduct may be considered in determining an award of alimony.

Appellant Glenda M. Rodriguez and respondent Antonio Rodriguez were married on September 10, 1973. Antonio filed for divorce on September 21, 1994. The matter proceeded to trial in January 1996. At the time of trial, Antonio was the catering director for the Sands Hotel in Las Vegas, earning at least $75,000.00 a year. Glenda was employed as a high school hall monitor for the Clark County School District. She earned $10.11 per hour and worked thirty-five hours a week during the nine-month school year. Her annual income was approximately $14,000.00.

The district court entered a minute order on August 8, 1996, indicating its decision. The court entered its Findings of Fact, Conclusions of Law and Decree of Divorce on February 3, 1997. Despite the fact that Antonio and Glenda had been married for over twenty-one years, and the fact that Antonio earned considerably more than Glenda, the trial judge refused to award Glenda alimony.

The district court denied Glenda's request for alimony because she'd had an extra-marital affair, had initiated the parties' separation by leaving the family to pursue the extra-marital relationship and had taken $10,000.00 from their adult son's personal injury settlement.¹ In making its decision the court also found significance in the facts that Antonio had agreed to repay the money that had been taken from the son, that Antonio was to have custody of the parties' sixteen-year-old minor daughter and that Glenda was employed. The court stated in the Findings of Fact, Conclusions of Law and Decree of Divorce that

[w]hile neither party is without fault in this case (as evidenced by their conversion of [the son's] money), the Court finds Defendant was more at fault for the divorce than Plaintiff by her abandonment of the marital home and children and her admitted involvement in an extramarital relationship prior to the separation of the parties.

We conclude that the district court clearly erred by considering Glenda's fault in deciding whether to award her alimony.

The district court relied on dictum in Heim v. Heim, 104 Nev. 605, 763 P.2d 678 (1988), for the proposition that marital misconduct or fault may be considered in determining an award of alimony. When we decided Heim, NRS 125.150(1) read as follows:

1. In granting a divorce, the court:

(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified periodic payments; and

(b) Shall make such disposition of:

(1) The community property of the parties; and

(2) Any property placed in joint tenancy by the parties on or after July 1, 1979, as appears just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by the divorce, and to the party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children.

Heim, 104 Nev. at 607-08 n. 2, 763 P.2d at 679 n. 2. The Heim court construed the statute to mean that district courts were authorized to award alimony and to divide property as appears just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by the divorce. Id. at 608, 763 P.2d at 680. The dictum in Heim which inspired the trial judge to consider Glenda's marital misconduct and to punish her by refusing her alimony request is as follows: "[w]hen examining the `merits' of the parties the courts might look at the parties' good actions or good behavior or lack thereof in determining what either husband or wife justly deserves." Id. at 610, 763 P.2d at 681. The Heim court's reference to "merits" was based upon its view that the statutory language "having regard to the respective merits of the parties" applied to alimony considerations. In a footnote, the Heim court recognized a potential conflict between the concept of a no-fault divorce and the consideration of marital misconduct in the determination of alimony:

Although Nevada has made incompatibility a ground for divorce and has eliminated the fault concept in establishing grounds for divorce, it has neglected to deal with the question of whether fault should play a role in deciding questions relating to alimony.

Nevada is not alone in this regard; and when the question has been presented to the courts in other states, some have held that in the absence of legislative change corresponding to the enactment of no-fault grounds for divorce, fault should continue to be a factor in awarding alimony or property distribution. Other courts have held that permitting fault to be considered in these situations would be incompatible with the no-fault divorce statutes. Since this issue has not been raised at the trial court level, we do not consider its application here; still, we note, without deciding the point, that the past relations and conduct of the parties might be legitimately considered under the legislative direction that the courts pay regard to the "respective merits of the parties."

Id. at 610 n. 6, 763 P.2d at 681 n. 6. (citations omitted). Four years later, in Rutar v. Rutar, 108 Nev. 203, 206 n. 2, 827 P.2d 829, 831 n. 2 (1992), we stated that "[w]e have not, and do not now express any opinion as to the meaning of the term `respective merits of the parties,' which by the express language of the statute must be considered in all cases involving judicial awards of alimony and marital property distribution."

In 1993, the legislature resolved the potential conflict between the concept of a no-fault divorce on the one hand and the consideration of marital misconduct on the other hand when determining an award of alimony or when dividing community property. Along with other changes, the legislature simply deleted the phrase "having regard to the respective merits of the parties" from NRS 125.150(1).² See 1993 Nev. Stat., ch. 135, § 1, at 240. With the 1993 amendment, NRS 125.150(1) reads as follows:

1. In granting a divorce, the court:

(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified periodic payments, as appears just and equitable; and

(b) Shall, to the extent practicable, make an equal disposition of the community property of the parties, except that the court may make an unequal disposition of the community property in such proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the reasons for making the unequal disposition.³

Our examination of the legislative history of the 1993 amendment reveals that the legislature deleted the noted language in direct response to this court's decisions which suggested that marital fault can be considered in determining alimony and property distribution. See Hearing on A.B. 347 Before the Assembly Committee on Judiciary, 67th Leg. (Nev., April 7, 1993); Hearing on A.B. 347 Before the Senate Committee on Judiciary, 67th Leg. (Nev., April 30, 1993). The amendment reflects the legislature's intention that as a no-fault divorce state, the fault or bad conduct of a party should not be considered when deciding the issues of alimony and community property division. See id. The legislature also chose to separately address alimony and community property division. This is significant because for the first time the legislature clarified that different considerations exist for each. Alimony is to be awarded according to principles of what is "just and equitable." Community property is to be divided equally unless a specifically stated compelling reason exists for making an unequal division.⁴ Since the legislative pronouncement of 1993, we have not considered the effect of the 1993 amendment as it relates to alimony, but we have considered the amendment's effect on the division of community property and debts. We first took the amendment into account in Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996), where we recognized that financial misconduct may constitute the requisite "compelling reason" for making an unequal division of community property. We specifically held that "if 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." Id. at 1283, 926 P.2d at 297.

A year after Lofgren was decided, we decided the case of Wheeler v. Upton-Wheeler, 113 Nev. 1185, 946 P.2d 200 (1997). We concluded in Wheeler that the district court erred by relying on evidence of the husband's spousal abuse as a basis for making an unequal division of the parties' community property. Id. at 1190, 946 P.2d at 203. We noted that by amending NRS 125.150(1) in 1993, the legislature sought to preserve the concept of no-fault divorce in Nevada. See id. at 1189-90, 946 P.2d at 203. We also recognized the legislature's determination that "in divorce proceedings, testimony regarding the relative faults of the parties could have an adverse effect on the children and could increase the expense of litigation." Id. at 1190, 946 P.2d at 203 (citing Hearing on A.B. [3]47 Before the Senate Committee on Judiciary, 67th Leg. (Nev., May 10, 1993, and April 30, 1993)).

However, in Wheeler, we also recognized that sometimes marital misconduct results in adverse economic consequences for one of the parties. 113 Nev. at 1190, 946 P.2d at 203. We determined that a district court may consider evidence of the economic consequences of...