Rogers v. Rogers, No. 76173-COA

Docket NºNo. 76758-COA
Citation460 P.3d 31
Case DateMarch 26, 2020
CourtCourt of Appeals of Nevada

460 P.3d 31 (Table)

Grant Carleton Denny ROGERS, Appellant,
v.
Mary Janelle ROGERS, Respondent.


Grant Carleton Denny Rogers, Appellant,
v.
Mary Janelle Rogers, Respondent.

No. 76173-COA
No. 76758-COA

Court of Appeals of Nevada.

FILED MARCH 26, 2020


McFarling Law Group

Patricia A. Marr, Ltd.

Leavitt & Flaxman, PLLC

ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Grant Carleton Denny Rogers appeals from a district court’s findings of fact, conclusions of law, and decree of divorce. Eighth Judicial District Court, Family Court Division, Clark County; Linda Marquis, Judge.

Grant and Mary Rogers were married for seventeen years and had three children,1 During the marriage, Grant worked as a police officer for the Las Vegas Metropolitan Police Department (LVMPD). Prior to the marriage, Mary dropped out of high school and worked a series of entry-level jobs. After the couple had their first child, Mary became a homemaker.

Mary eventually earned her GED at some point during the marriage. Meanwhile, Grant earned his associate’s degree and received several promotions with the LVMPD. After Grant filed for divorce and moved out of the family home in 2017, Mary found an entry-level job at a dental office where she worked part-time. While the divorce was pending, Grant was promoted to lieutenant, which increased his annual salary.

Although the parties stipulated, for the most part, to joint legal and joint physical child custody, the parties heavily disputed several financial issues, including the calculation of each party's gross monthly income, Mary's alimony award, Mary’s entitlement to Grant’s retirement funds, the child support calculation, the parenting time schedule, ownership of the marital home, equalization of the community estate, and an award of attorney fees.

The case proceeded to a two-day bench trial. The parties produced several exhibits, including each party’s general financial disclosure form (GFDF), bank statements, tax forms, property valuation documents, among other evidence. Because Mary and Grant were the sole witnesses presented, the majority of the trial revolved around their testimony regarding their respective financial information, career and education levels, parenting experiences and abilities, and community property interests.

Near the end of the first day of trial, the district court reminded the parties of the pertinent issues in the case, the applicable law, and its role in deciding those issues. The district court then facilitated a settlement discussion off the record during a trial recess in an attempt to settle the case without proceeding to the second day of trial. However, the settlement efforts were unsuccessful, and the case proceeded to the second day of trial.

At the end of the trial, the district court entered its findings of fact, conclusions of law, and decree of divorce. Relying on the parties’ GFDFs and pay stubs, the district court found that Mary’s gross monthly income was approximately $1,900 a month and Grant’s gross monthly income was $12,371.84. The district court, among other things, (1) awarded Mary $1,900 a month in alimony for five years, (2) awarded Mary $2,904.80 a month in child support, (3) divided the community estate, awarding each party over $90,000, (4) determined whether alimony was still appropriate in light of potential equalization following the community property award of $90,000 to each party, and (5) established a parenting time schedule that maintained the parties’ current custody schedule but also required Grant to pick the children up and drop the children off or set an exchange.

The district court also awarded Mary attorney fees. Mary filed her memorandum for attorney fees wherein she argued that she deserved an award because she prevailed on the majority of the issues and had to defend against Grant’s many frivolous motions. She also argued that Grant’s own conduct justified a fee award, namely that he was in contempt for failing to comply with the district court’s temporary order, misrepresented his income, and hindered pre-trial settlement negotiations. In response, Grant argued that Mary was not the prevailing party, had enough money from her community property award to cover her attorney fees, and had hindered pre-trial settlement negotiations. Both parties attached exhibits and affidavits to their respective filings to show that the other side failed to participate in the settlement negotiations in good faith. The district court awarded Mary attorney fees, finding that Mary was indeed the prevailing party and that she successfully demonstrated Grant had misrepresented his income to her detriment.

On appeal, Grant challenges (1) the district court’s calculation of each party’s gross monthly incomes; (2) the court’s award of alimony and child support to Mary; and (3) the court’s award of attorney fees to Mary as the prevailing party.

Standard of Review

We review a district court’s factual findings for an abuse of discretion and will not set aside those findings unless they are clearly erroneous or not supported by substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). Substantial evidence is evidence that a reasonable person may accept as adequate to sustain a judgment. Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 242 (2007). When determining whether the district court abused its discretion, we will not reweigh conflicting evidence or reassess witness credibility. Id. at 152, 161 P.3d at 244. However, the district court’s interpretation and construction of a statute presents a question of law that is reviewed de novo. Zohar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014).

Calculation of Mary and Grant’s respective gross monthly incomes

Grant first disputes the district court’s calculation of his gross monthly income because the district court averaged his three pay stubs to calculate his income. Grant argues that the December pay stub reflected an increased amount representing a uniform allowance, which the district court should not have considered when calculating his income. We disagree.

When one party disputes the gross monthly income of the other party, the district court "shall determine the amount and may direct either party to furnish financial information or other records." NRS 125B.080(3). At trial, Grant argued that the district court should not have used his December paystub to calculate his gross monthly income because it did not reflect his actual earnings over the course of the year and also because it included his annual uniform allowance. However, Grant gave inconsistent and contradictory testimony about his uniform allowance. For example, Grant testified that he received the clothing allowance once a year during the summer rather than at the end of the year. He further testified that the uniform allowance is around $1,000. But nothing on the December pay stub shows—or suggests—that the increased amount is due to a uniform or gun allowance.

Quite to the contrary, the evidence showed that Grant had recently been promoted in late 2017 to a lieutenant position, a promotion that came with a significant pay raise. Under these circumstances, the district court did not err in attempting to extrapolate Grant’s estimated 2018 income by averaging only the most recent pay stubs that were available in the short time after his promotion. Consequently, we perceive no abuse of discretion in the district court’s projected calculation of his gross bi-weekly income at the time. Nonetheless, the district court will likely have access today to new evidence that was not available during the trial, including figures for Grant’s income for the entire year of 2018, from which the court should be able to engage in more accurate calculations based upon Grant’s actual income for that year instead of having to rely upon rough estimates or incomplete projections. As this case must be remanded on other grounds as explained herein, the district court should consider updating its earlier calculations accordingly.

Grant next argues that the district court abused its discretion in calculating Mary’s gross monthly income based on her working fewer than 40 hours per week. Grant also argues that the district court should ; not have relied on Mary’s GFDF because it did not reflect Mary’s $1 per hour raise that she testified to at trial. However, Grant failed to support his argument with any evidence or cogent analysis demonstrating that Mary actually worked 40 hours each week. To the contrary, Mary testified that she typically works 30 to 32 hours a week, and although Grant argues that this testimony should not be believed, he failed to present any evidence to the contrary. See Edwards v. Emperor’s Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.3 (2006)...

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