Opinion
No. 59211
03-05-2014
MELONY WILDE, Appellant, v. STEVE WILDE, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from a district court order modifying a marital settlement agreement. Eighth Judicial District Court, Family Court Division, Clark County; T. Arthur Ritchie, Jr., Judge.
Upon their divorce in 2010, Steve and Melony Wilde executed a marital settlement agreement, in which Steve agreed to pay Melony $4,500 per month in alimony. In 2011, Steve moved to reduce his monthly alimony obligation due to a purported decrease in his monthly income. The district court granted Steve's motion to reduce his alimony payment, considering several factors, including Steve's 2010 income. Steve did not produce his 2010 federal tax return to prove his income, but the parties stipulated that he made $300,000 that year. The issue here is whether the district court abused its discretion in granting Steve's motion to reduce his alimony payments. We hold that the district court did not abuse its discretion because it considered all relevant factors before making its determination.
Melony raised two additional issues on appeal: (1) whether the district court erred in determining that, at the time of the action, Steve's current monthly income had decreased to $16,000; and (2) that the court abused its discretion in denying her motion for attorney fees and costs. After reviewing these issues, we determine that neither claim has merit and affirm both rulings.
Under NRS 125.150(7), when a district court is determining whether to reduce an alimony award agreed upon in a marital settlement agreement, "the court shall consider whether the [payor spouse's income], as indicated on the spouse's federal income tax return for the preceding calendar year, has been reduced to such a level that the spouse is financially unable to pay the amount of alimony the spouse has been ordered to pay."
Ordinarily, the district court is required to review the spouse's federal income tax return, but here the parties stipulated that Steve's 2010 income was $300,000; therefore, Steve's 2010 income was not in dispute. The district court thus did not abuse its discretion in reducing Steve's alimony payment because the district court considered all relevant factors, including Steve's undisputed income, before doing so. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
__________, C. J.
Gibbons
__________, J.
Douglas
cc: Hon. T. Arthur Ritchie, Jr., District Judge, Family Court Division
Carolyn Worrell, Settlement Judge
Rocheleau Law Group, PC
Pecos Law Group
Eighth District Court Clerk
SAITTA, J., dissenting:
I disagree with my colleagues' conclusion that the district court did not abuse its discretion. The parties' stipulation did not relieve the district court of its statutory duty to review the relevant income tax return. See NRS 125.150(7). Therefore, I dissent from the majority's determinations.
In defining how a court resolves whether there is a basis for modifying the amount of alimony payments, the Legislature uses the word "shall" to require a court to consider the payor spouse's income based on its review of his or her federal income tax return: "the court shall consider whether the [payor spouse's income], as indicated on the spouse's federal income tax return for the preceding calendar year, has been reduced to such a level that the spouse is financially unable to pay the amount of alimony the spouse has been ordered to pay." NRS 125.150(7) (emphasis added). The term "shall" conveys the Legislature's intent to prohibit the court from having the discretion to not review the federal income tax return when considering the payor spouse's income. See Otak Nevada, LLC v. Eighth Judicial Dist. Court, 127 Nev. ___, ___, 260 P.3d 408, 411 (2011) (indicating that a statute's use of the term "shall" shows "its intent to prohibit judicial discretion" with respect to the duty that the statute imposes on the district court). Given that the review of the federal income tax return is a duty imposed on a court, the parties were not in a position to alter that duty with their stipulation.
Accordingly, I conclude that the district court had the statutory duty to review the federal income tax return. I do not believe that a stipulation of the parties absolved the district court from engaging in this review of the federal income tax return that NRS 125.150(7) required of it.
__________, J.
Saitta