" Although appellant did contend, briefly, that NRS 123.220 requires a written agreement between husband and wife to alter the character of community property, he did so without citation of authority other than the referenced statute and otherwise with so little emphasis that respondent did not even address the subject in her answering brief. Nevertheless, the author of the concurring opinion suggests that this court's opinions in Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983), and Verheyden v. Verheyden, 104 Nev. 342, 757 P.2d 1328 (1988), contained erroneous, gratuitous footnotes on the subject. Apparently concluding that his prior endorsements of Schreiber and Verheyden were ill advised, the author of the concurring opinion now believes we should finally pronounce judgment that will "clarify past confusion.
"Where one party to the parol agreement has performed to such an extent that she will have no adequate remedy unless the agreement is enforced, equity will grant such relief." Hardy v. United States, 918 F.Supp. 312, 318 (D.Nev. 1996); see also Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189, 1190 (1983) (quoting Evans, 12 Nev. at 398). The district court's error in concluding that these doctrines could only apply where there existed an oral agreement regarding real property, and not in cases involving an allegedly binding written agreement, see In re Rose Fine Jewelry, Inc., 101 B.R. 247, 249 (D.Nev. 1989), is harmless on these facts.
The estoppel theory is based on the policy consideration that if one party "proceeds so far in the execution of a parol contract that he can have no adequate remedy unless the whole contract is specifically enforced, then equity requires such relief to be granted; because, if the rules were otherwise the statute, which is designed to prevent fraud, would itself become an instrument of fraud." Schreiber v. Schreiber, 663 P.2d 1189, 1190 (Nev. 1983) (quotation omitted). This is consistent with the principle stated in the Restatement (Second) of Contracts § 139(1): "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise.
Whenever one party, confiding in the integrity and good faith of another, proceeds so far in the execution of a parol contract that he can have no adequate remedy unless the whole contract is specifically enforced, then equity requires such relief to be granted . . . .Schreiber v. Schreiber, 663 P.2d 1189, 1190 (Nev. 1983).
Nevada law provides that "[w]henever one party, confiding in the integrity and good faith of another, proceeds so far in the execution of a parol contract that he can have no adequate remedy unless the whole contract is specifically enforced, then equity requires such relief to be granted." Schreiber v. Schreiber, 663 P.2d 1189, 1190 (Nev. 1983) (quoting Evans v. Lee, 12 Nev. 393 (1877)). Thus, the O'Neils argue that the easement was not void when created because BHP obtained an equitable interest in 690 Keystone prior to the easement based on its expenditures developing the property prior to final sale.
The O'Neils argue further that BHP's substantial investments in the property in the form of pre-purchase development creates an exception to the statute of frauds writing requirement for sales of land, and thus BHP held an equitable interest in 690 Keystone when the Easement was recorded. See Schreiber v. Schreiber, 663 P.2d 1189, 1190 (Nev. 1983) (quoting Evans v. Lee, 12 Nev. 393 (1877)) ("Whenever one party, confiding in the integrity and good faith of another, proceeds so far in the execution of a parol contract that he can have no adequate remedy unless the whole contract is specifically enforced, then equity requires such relief to be granted.").
Nev. Rev.Stat. § 123.220. However, an oral agreement to maintain separate marital property may be enforceable despite the statute of frauds under the doctrine of equitable estoppel. Where one party to the parol agreement has performed to such an extent that she will have no adequate remedy unless the agreement is enforced, equity will grant such relief. Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189, 1189-90 (1983) (citing Evans v. Lee, 12 Nev. 393 (1877)). The court is mindful of the fact that, unlike the situation in Zahringer, infra, where proof of a parol property agreement was offered by one party to the alleged agreement to estop the other party from denying its existence, here the two parties to the alleged agreement both swear to its existence.
He retained appellate counsel after this court entered an order requesting supplemental briefs. See NRS 111.205(1) (requiring a properly executed instrument to convey an interest in land); compare Schreiber v. Schreiber, 99 Nev. 453, 455, 663 P.2d 1189, 1190 (1983) (accepting appellant's statement that “a property settlement agreement is required to be in writing” (citing NRS 123.220)), with Anderson v. Anderson, 107 Nev. 570, 573 n. 1, 816 P.2d 463, 465 n. 1 (1991) (Springer, J., concurring) (criticizing Schreiber' s “misleading dicta”). We also noted and requested supplemental briefing in this case on NRS 123.270, which provides that “[a]ll marriage contracts or settlements must be in writing, and executed and acknowledged or proved in like manner as a conveyance of land is required to be executed and acknowledged or proved.”
An oral agreement of this kind can be enforced under certain circumstances, but the presumption of community property can be overcome only by clear and certain proof. See Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983); Burdick v. Pope, 90 Nev. 28, 518 P.2d 146 (1974). Laurence's contentions were disputed by Gail, and the issue was decided in Gail's favor. Where a divorce court, sitting without a jury, makes this kind of decision, based on conflicting evidence, the decree will not be disturbed on appeal unless the holding was clearly erroneous.
Capital contends, however, that oral agreements otherwise unenforceable because of the statute of frauds may be enforced under the doctrines of part performance or estoppel. See Schreiber v. Schreiber, 99 Nev. 453, 663 P.2d 1189 (1983) (part performance and estoppel applicable to oral property settlement agreement). Capital argues that the facts set forth in the complaint are sufficient to allege either estoppel or part performance, or both.