Rouhani v. Rouhani, No. 75124-COA

CitationNo. 75124-COA
Case DateNovember 25, 2019
CourtCourt of Appeals of Nevada

NOSRAT ROUHANI, Appellant,
v.
REBECA ROUHANI, Respondent.

No. 75124-COA

COURT OF APPEALS OF THE STATE OF NEVADA

November 25, 2019


ORDER OF AFFIRMANCE

Nosrat Rouhani appeals from a district court divorce decree. Eighth Judicial District Court, Family Court Division, Clark County; Jennifer Elliott, Judge.

Nosrat and Rebeca Rouhani were married in 1988, and they have three adult children. Nosrat is an electrical engineer. After marriage, Nosrat created two corporations, NRC Engineers and NUR Electric, which have a combined worth of $496,000. Rebeca was a homemaker during the marriage. Nosrat controlled the couple's finances and gave Rebeca a weekly allowance between $60 and $100. In 2014, the year before divorce proceedings started, Nosrat's gross income was $431,731, as reflected on his and Rebeca's personal federal tax return. Rebeca filed for divorce in December 2015 and moved into the couple's second home on Hollowbluff Avenue, which only had $10,000 in equity. Nosrat continued to reside at the couple's house on Coley Avenue, which had more than $435,000 in equity, and continued to earn substantial income, grossing $371,204 in 2015.

Shortly after the divorce proceedings commenced, the district court issued a joint preliminary injunction that barred the parties from

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unilaterally disposing of community assets or incurring debt. During the divorce litigation, the parties sold their jointly owned condominium on Grand Canyon Drive, which netted $97,860 in proceeds. These funds were deposited into a bank account that only Nosrat had access to, and he spent all of the funds. He claimed that they were used to pay community expenses. The district court, however, found that during the relevant time period (1) Nosrat had unilaterally given the parties' adult children approximately $160,000, and (2) he also deliberately failed to pay more than $185,000 in community debt so that Rebeca would receive less community property.

At the time of trial, Rebeca was 56 years old and did not have a substantial earning capacity. Nosrat, although 58 years old, was found to have a substantial earning capacity at a minimum of $250,000 annually because of his education and the experience he gained during the marriage. In the decree of divorce, the district court awarded Rebeca lifetime alimony at $10,000 per month, as well as the Hollowbluff home on the condition that she refinance the $327,000 outstanding mortgage in her name. Nosrat was allowed to remain in the jointly owned Coley home until it was sold. Nosrat was awarded the community businesses, but Rebeca was allocated a one-time 50 percent interest in their combined value of $496,000. Nosrat was ordered to sell the Coley home to pay Rebeca for her share in the two community businesses and to repay her for one-half of the condominium sale funds that had been misappropriated by Nosrat. As a sanction for this misconduct, Nosrat was also assigned the other community debt.

On appeal, Nosrat contends that the district court (1) erred by ordering Nosrat to make an equalization payment for Rebeca's share in the two community businesses, and also using the profits from those businesses

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in calculating alimony (i.e., that this constituted an impermissible double-dip award to Rebeca), (2) erred by using Nosrat's settlement offer as evidence of his income, (3) abused its discretion in ordering Nosrat to pay $10,000 per month in lifetime alimony, (4) erred by failing to consider Nosrat's contributions to the adult children's tuition and living expenses in awarding alimony, (5) erred in denying Nosrat's post-trial motion for reconsideration, (6) abused its discretion in ordering Nosrat to not pay the adult children's expenses after the divorce trial because the community had terminated, (7) abused its discretion in sanctioning Nosrat for financial misconduct by making him responsible for all community debt, (8) abused its discretion in awarding Rebeca one-half of the proceeds from the sale of the community condominium, (9) abused its discretion by ordering that two community houses be valued at the time of the sale (i.e., after the decree of divorce had been entered), (10) abused its discretion in ordering Nosrat to sell his home when he was able to refinance the debt to satisfy Rebeca's community interest, and (11) abused its discretion in ordering Nosrat to pay Rebeca's attorney and expert fees and costs. We disagree.

The district court did not abuse its discretion in both requiring an equalization payment and awarding alimony

Nosrat avers that the district court abused its discretion by giving Rebeca an equalization payment for her share in two community property corporations and also awarding Rebeca alimony based on the income that Nosrat earns from those businesses' profits (i.e., Nosrat contends that Rebeca received a "double-dip" benefit).

"The decision of whether to award alimony is within the discretion of the district court." Kogod v. Cioffi-Kogod, 135 Nev., Adv. Op. 9, at *5, 439 P.3d 397, 400 (2019). "[A] court must award such alimony as appears 'just and equitable,' having regard to the conditions in which the

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parties will be left by the divorce." Sprenger v. Sprenger, 110 Nev. 855, 859, 878 P.2d 284, 287 (1994). In awarding alimony, the district court must consider the income of each spouse. NRS 125.150(9)(e). "As property and alimony awards differ in purpose and effect, the post-divorce property equalization payments payable to [the spouse] in this case do not serve as a substitute for any necessary spousal support." Shydler v. Shydler, 114 Nev. 192, 198, 954 P.2d 37, 40 (1998) (holding that the district court incorrectly found that property equalizing payments "obviated the need for any post-divorce spousal support"); see also Kogod, 135 Nev., Adv. Op. 9, at *18, 439 P.3d at 406 ("'[T]he need for post-divorce alimony can be reduced or obviated' by awarding certain income-producing assets to a spouse who might otherwise receive alimony." (quoting Billion v. Billion, 553 N.W.2d 226, 231 (S.D. 1996))).

Nosrat's argument is without merit under Shydler, which held that the district court abused its discretion in concluding that community property equalization payments acted as a substitute for alimony. 114 Nev. at 198, 954 P.2d at 41. The Shydler court concluded that the wife would receive a lesser share of community property if community property served as a substitute for alimony, which was improper. Id. Conversely, the Kogod court held that it was an abuse of discretion for the district court not to consider income-producing assets when awarding alimony. 135 Nev., Adv. Op. 9, at *17-18, 439 P.3d at 406. Rebeca was not awarded income-producing property (i.e., a share of the businesses that generates revenue). Rather, she received a one-time payment, and Nosrat retained 100 percent of the businesses with the ability to generate substantial revenues and earnings. Thus, the district court did not abuse its discretion in concluding that (1) an equalization payment was necessary to satisfy Rebeca's

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community interest in the two corporations, and (2) the income that Nosrat solely earns from those businesses' profits justified an alimony award for Rebeca, who was necessitous. Therefore, we conclude that this argument is without merit, and we affirm the district court's order.

The district court abused its discretion in using Nosrat's settlement offer as an admission of his income, but this error was harmless

Nosrat argues that the district court erred in using his pretrial settlement offer as an admission that Nosrat's income was upwards of $23,000 per month. He further contends that his settlement offer was never admitted into evidence at trial, but the district court still took this as an admission of his income for the purposes of alimony and attorney fees.

"This court reviews a district court's decision to admit or exclude evidence for abuse of discretion, and we will not interfere with the district court's exercise of its discretion absent a showing of palpable abuse." Klabacka v. Nelson, 133 Nev. 164, 174, 394 P.3d 940, 949 (2017) (internal quotation marks omitted). "It is harmless error if a court incorrectly admits evidence which does not affect the substantial rights of the parties." McMonigle v. McMonigle, 110 Nev. 1407, 1409, 887 P.2d 742, 744 (1994) (citing NRCP 61), overruled on other grounds by Castle v. Simmons, 120 Nev. 98, 105, 86 P.3d 1042, 1047 (2004); see also Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 (2010) (noting that an error is not harmless if the movant shows "that the error affects the party's substantial rights so that, but for the alleged error, a different result might reasonably have been reached"). "NRS 48.105(1) requires the exclusion of evidence of offers of compromise when such evidence is introduced to prove liability or the amount of a claim." Davis v. Beling, 128 Nev. 301, 312, 278 P.3d 501, 509 (2012).

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Here, the district court used Nosrat's settlement offer—in addition to other evidence—in its amended findings of fact and conclusions of law to conclude that it was reasonable to award Rebeca monthly alimony of $10,000 and to award her attorney fees. In regard to awarding Rebeca alimony, the district court made findings under each subsection of NRS 125.150(9)(a)-(k). In considering the specific element of the income of the parties under NRS 125.150(9)(e), the district court utilized (1) Rebeca's financial disclosure form, (2) two of Nosrat's financial disclosure forms, (3) the settlement offer that Nosrat made, (4) an expert report from Anthem Forensics, and (5) Nosrat and Rebeca's personal income tax returns from 2014 and 2015. In awarding attorney fees to Rebeca, the district court considered facts beyond the settlement offer, including the disparity in income between the spouses (using the same documents to show income), Nosrat's initial failure to pay Rebeca's expert fees, Nosrat's premature...

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