Stucke v. Stucke, 82723-COA

Citation82723-COA
Case DateJune 22, 2022
CourtCourt of Appeals of Nevada

DAVID PATRICK STUCKE, Appellant/Cross-Respondent,
v.

CHRISTIE LEEANN STUCKE, Respondent/Cross-Appellant.

No. 82723-COA

Court of Appeals of Nevada

June 22, 2022


UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

David Patrick Stucke appeals, and Christie Leeann Stucke cross-appeals, from a district court decree of divorce. Eighth Judicial District Court, Family Court Division, Clark County; Denise L. Gentile, Judge.

David and Christie entered a domestic partnership in May 2015.[1] The parties then married in May 2016. They have two minor children together. After approximately two and a half years of marriage, David filed a complaint for divorce.

As described by the district court, the divorce "was hotly contested and litigated with various motions, discovery disputes, [and] numerous hearings in front of the [c]ourt." Much of the litigation that took place before the district court is not subject to this appeal. After nearly two years of pretrial litigation, the parties proceeded to trial. The trial spanned five days, during which the district court heard testimony from David, Christie, and the parties' jointly retained custody expert witness Dr. John Paglini, a psychologist.

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As relevant to this appeal and cross-appeal, the district court made the following rulings as to the parties' property: (1) it divided a house located on West Maule Avenue equally as community property between David and Christie, (2) it awarded the proceeds from the sale of a house located on Birkland Court to David as his separate property, (3) it awarded the proceeds from the sale of a house located on Grandview Place to David as his separate property, and (4) it denied David's request that Christie reimburse the community for alleged marital waste. As to the custody of the parties' children, the district court made the following rulings: (1) it awarded the parties joint physical custody with a 4/3 parenting timeshare, with David exercising custody over the children approximately 60 percent of the time; and (2) it set each party's child support obligation at the same amount resulting in a net obligation of zero.

Each party raises two community property issues on appeal. David argues the district court abused its discretion by dividing the West Maule property equally between the parties. He additionally argues the district court abused its discretion by denying his request to have Christie reimburse the community for alleged marital waste. For her part, Christie argues the district court erred in awarding David the proceeds from the sale of the Birkland and Grandview properties as his sole and separate properties.

David additionally raises three issues related to the district court's custody order. First, David argues that the district court abused its discretion by awarding the parties joint physical custody. Second, David argues the district court abused its discretion in designating the parties' timeshare as joint physical custody. Third, David argues the district court

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abused its discretion by not imputing income to Christie for the purposes of determining child support.

Standard of review

"[We review] a district court's disposition of community property deferentially, for an abuse of discretion." Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019). We also review a district court's decision on child custody for an abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 428, 216 P.3d 213, 226 (2009), overruled on other grounds by Romano v. Romano, 138 Nev., Adv. Op. 1, 501 P.3d 980 (2022). In divorce proceedings, a district court's "[r]ulings supported by substantial evidence will not be disturbed on appeal." Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004) (internal quotation marks omitted). "Substantial evidence is evidence that a reasonable person may accept as adequate to sustain a judgment." Rivero, 125 Nev. at 428, 216 P.3d at 226 (internal quotation marks omitted).

The district court did not abuse its discretion by dividing the West Maule property equally between the parties

David argues the district court abused its discretion by dividing the West Maule property equally between himself and Christie. He acknowledges that domestic partnerships create a community property interest in real property but argues the court should have applied Malmquist[2] to divide the couple's respective interests in the property. According to David, he used his separate property to pay the down payment on the home and to conduct repairs on it prior to the family moving in. He also argues that "the intent was for the home to remain his sole and separate property." He explains that he entered into a purchase agreement

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for the home in March 2015. He argues that the home was initially his separate property, despite the fact that the couple entered into their domestic partnership in May 2015, before the purchase of the home was finalized in July 2015. Christie counters that the West Maule property was presumably community property because the purchase of the home was not completed until after the parties had entered their domestic partnership. Christie further argues that the district court's order explains that David did not provide the court with a Malmquist calculation at trial and that his pretrial memorandum with a summary of the calculation lacked supporting documentation.

Except for a few limited exceptions, any property acquired during a marriage by either spouse is community property. NRS 123.220. The same is true for domestic partnerships. See NRS 122A.200(1)(a) ("Domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law ... as are granted to and imposed upon spouses."). In Malmquist v. Malmquist, the supreme court developed formulae for calculating the reimbursement of separate and community property improvements to real property. 106 Nev. 231, 240-41, 247, 792 P.2d 372, 377-78, 382 (1990). A district court may only perform a Malmquist apportionment where "either separate property has increased in value through community efforts, or conversely, community property value has been enhanced by separate property contributions." Kerley v. Kerley, 111 Nev. 462, 466, 893 P.2d 358, 360 (1995).

Here, we first conclude that the district court accurately determined that the West Maule property was community property. David asserts the sale of the home was finalized in March when he signed the

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purchase agreement for it rather than in July when the sale was completed. He provides no relevant authority for that assertion, nor has he cogently argued his point. We therefore decline to consider this argument. See Edwards v. Emperor's Garden Rest, 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need not consider an appellant's argument that is not cogently argued or lacks the support of relevant authority). Nevertheless, we note that the district court found that there was no document indicating that the property was anything other than community property and the property was presumed to be community property. See NRS 123.220(1).

Further the district court could not have performed a Malmquist apportionment to reimburse David for any separate property contribution he may have made to the West Maule property. David did not argue below, nor does he argue on appeal, that the West Maule property's value was enhanced by his separate property contributions. Instead, David argued before the district court that he should be reimbursed for the down payment ($28,400) he paid with poker winnings he earned prior to the couple's domestic partnership. He further argued he was entitled to the equity the home accrued between March 2015 and May 2016-the period during which David and Christie were domestic partners before they married.

On appeal, David explains that he paid the down payment with his separate property and expended another $6,000 of his separate property to complete repairs before the family moved into the home. He summarily argues that "[a]pplying the Malmquist formula," his total interest in West Maule is $167,752.71 and Christie's is $98,172.66. In sum, David has not argued that his separate property contributions enhanced the West Maule

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property's value and he identifies nothing in the record to indicate that his contributions did so. Therefore, without the proper evidence and foundation, the district court could have found the evidence insufficient to perform a Malmquist apportionment to reimburse David for his separate property contributions. See Kerley, 111 Nev. at 466, 893 P.2d at 360. Therefore, the court did not abuse its discretion in equally dividing the property.[3]

The district court did not abuse its discretion by awarding the proceeds from the sale of the Birkland property to David as his separate property

Christie argues the district court erred in awarding David the proceeds from the sale of the Birkland property as his sole and separate property. She argues that all property acquired after marriage is presumed to be community property unless, as could apply here, the couple signed a pre- or post-nuptial agreement. David argues Christie executed documents necessary for title to the Birkland property to vest as David's sole and separate property even though the couple was married when the property was acquired. He argues this court should affirm the district court's ruling because Christie did not provide clear and convincing evidence that the Birkland property was thereafter transmuted into community property.

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Marital property will not be considered community property where "[a]n agreement in writing between the spouses" provides otherwise.[4]NRS 123.220(1). "Transmutation from separate to community property must be shown by clear and convincing evidence." Sprenger v. Sprenger, 110 Nev. 855, 858, 878 P.2d 284,...

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