Zohar v. Noury

• Decision Date: 18 December 2019
• Docket Number: No. 76000-COA,76000-COA
• Parties: ELI ZOHAR, Appellant, v. DAFNA K. NOURY, Respondent.
• Court: Nevada Court of Appeals

ELI ZOHAR, Appellant,
v.
DAFNA K. NOURY, Respondent.

No. 76000-COA

COURT OF APPEALS OF THE STATE OF NEVADA

December 18, 2019

ORDER AFFIRMING IN PART AND VACATING IN PART

Eli Zohar appeals from a decree of divorce. Eighth Judicial District Court, Family Court Division, Clark County; T. Arthur Ritchie, Jr., Judge.

Eli Zohar and Dafna Noury were married in Israel in 2001 and in a civil ceremony in Las Vegas in 2005.¹ The parties began operating a construction and marble floor polishing business, which was still operating at the time of the divorce trial. Noury held the state license that allowed the business to bid on construction jobs, and Zohar handled the day-to-day operations, including purchases. However, the business began having economic problems in 2008 due to the recession and Noury's unavailability after the birth of the couple's quadruplets.

After Noury filed for divorce, Zohar sent text messages to Noury indicating that he would flee to Israel and leave her alone to support herself and the four children. The district court ordered Zohar to provide Noury $2,500 each month in community funds for spousal and child support during the divorce proceedings. On at least seven occasions, Zohar failed to provide the full $2,500. Additionally, Zohar sold a family recreational vehicle in

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violation of the joint preliminary injunction. The district court found him in contempt for each violation of these court orders.

On appeal, Zohar argues the district court abused its discretion by (1) finding Zohar in contempt when Noury did not comply with the statutory formalities for seeking a contempt order, (2) determining Zohar's yearly gross income was $84,000, (3) awarding lump-sum child support without making best interest findings, (4) assigning the consumer credit card debt to Zohar, (5) valuing the community business at $220,000, (6) making a property division that punished Zohar, (7) awarding alimony without considering all of the statutory factors, (8) awarding lump-sum alimony, and (9) awarding attorney fees without making explicit Brunzell² findings.

The district court abused its discretion by finding Zohar in contempt of seven of the eight counts asserted by Noury

Zohar argues that Noury's motions seeking to hold Zohar in contempt were defective under NRS 22.030(2) and thus the district court abused its discretion when it found him in contempt.³ NRS 22.030(2) states that "[i]f a contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit must be presented to the

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court or judge of the facts constituting the contempt . . . ." The affidavit gives the district court jurisdiction over the matter. Awad v. Wright, 106 Nev. 407, 409, 794 P.2d 713, 714 (1990), abrogated on other grounds by Pengilly v. Rancho Santa Fe Homeowners Ass'n, 116 Nev. 646, 5 P.3d 569 (2000); Bohannon v. Eighth Judicial Dist. Court., Docket No. 69719 (Order Granting Petition In Part, March 21, 2017) ("A sufficient affidavit provides the jurisdictional basis for a district court to preside over indirect contempt proceedings."). Where a court exceeds its jurisdictional authority to issue contempt, it is a manifest abuse of discretion. See Pengilly, 116 Nev. at 650, 5 P.3d at 571-72.

Here, Noury admits that she only filed a declaration, not the affidavit as described in NRS 22.030(2). She then argues that her declaration, made pursuant to NRS 53.045, fulfills the affidavit requirement.⁴ Her contempt motion is supported by a declaration made under penalty of perjury and thus meets NRS 22.030(2)'s affidavit requirement. Cf. Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 202, 234 P.3d 920, 922 (2010) (holding that NRS 53.045 applies to all affidavit requirements because to reason otherwise would make NRS 53.045 meaningless). The motion, however, only alleges one act of contempt which arises from Zohar's improper sale of the family recreational vehicle. Therefore, that finding of contempt is proper, but the district court abused its discretion when it found Zohar in contempt of the remaining seven counts which were not supported by affidavit or declaration. Thus, we

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vacate the remaining seven counts because the district court lacked jurisdiction.⁵

The district court did not abuse its discretion in determining Zohar's income

Zohar argues that the district court abused its discretion when it determined that his income was $84,000 for purposes of calculating his child support payments without making specific factual findings.⁶ We disagree. Child support decisions are reviewed for an abuse of discretion. Rivero v. Rivero, 125 Nev. 410, 438, 216 P.3d 213, 232 (2009). For a self-employed person, child support is calculated as the amount earned after the deduction of all legitimate business expenses. NRS 125B.070(1)(a).

At trial, Noury presented Zohar's 2015 and 2016 business tax returns showing that Zohar's income was approximately $60,000 per year. She also testified that Zohar had been taking an illegitimate rent deduction of $24,000 for each of those years. Thus, based on NRS 125B.070(1)(a), his income would total approximately $84,000. Zohar testified that his 2017

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gross income was only $49,000 but failed to produce any documentary evidence in support of that claim. See NRS 125B.080(3) (stating the court shall determine the amount of gross income and may order the production of financial records, including tax returns). We decline to judge the credibility of the parties on appeal or reweigh the evidence. Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004) (stating that the district court has discretion to judge witness credibility and the weight of testimony).

Furthermore, Zohar cites no authority for the proposition that the district court must make explicit factual findings when determining income under NRS 125B.070. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating that arguments not cogently argued or supported with relevant authority need not be considered). Further, NRS 125B.080(6) specifically requires the district court to make specific findings when the district court deviates from the child support formula, but the district court did not deviate. Thus, the district court did not abuse its discretion when determining Zohar's income to be $84,000 per year.⁷

The district court did not abuse its discretion in awarding lump-sum child support

Zohar next argues that the district court did not make a finding that the lump-sum child support award was in the best interest of the children and thus it could not be awarded. We disagree. We review child support determinations for an abuse of discretion. Rivero, 125 Nev. at 438,

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216 P.3d at 232. There is a presumption that the district court acts in the best interest of the child. Cf. Howe v. Howe, 87 Nev. 595, 597, 491 P.2d 38, 40 (1971) (stating that a district court is presumed to act in the best interest of the child in the child custody context); see also NRS 125B.080(5) ("It is presumed that the basic needs of a child are met by the formulas set forth in NRS 125B.070."). "In the best interest of the child, a lump-sum payment . . . may be ordered in lieu of periodic payments of support." NRS 125B.090.

Here, the district court recognized that financial positions can change and thus made a partial lump-sum award covering only the period of May to December 2018, with periodic payments beginning in 2019. The district court stated that it made the award to ensure the support was paid. The district court's concern was warranted because Zohar (1)...