separate properties, with appellant receiving a $1.7 million equalization
payment for the difference in value between the two homes.
The FMA provided that the parties had agreed that rather
than valuing and dividing their wealth at the time of the divorce, they
would proceed to liquidate various community business holdings in an
orderly fashion and divide the net proceeds. As part of that liquidation
process, each party could be required to make separate property capital
contributions ("capital calls") for ongoing business expenses as approved
by a court-appointed financial expert. Under the FMA, appellant and
respondent were "obligated to use their respective sole and separate
property to answer capital calls as may be required." Additionally, under
the district court's judgment of partial property distribution, each party
was required to maintain $1 million in liquid assets or a line of credit to
satisfy any future capital calls. If a dispute arose as to the capital calls,
the parties were to bring the issue before the district court for resolution.
Finally, the district court retained continuing jurisdiction over
the liquidation of the parties' community property. In this regard, the
decree specifically states that the district court "shall have continuing
jurisdiction over the Orderly Liquidation, as it relates to the parties'
community property, and all permutations of that Orderly Liquidation."
During the liquidation process, appellant failed to pay the
second capital call as requested, and respondent sought relief from the
district court. The district court entered an order directing appellant to
pay the second capital call in the amount of $291,676.58. When appellant
again failed to pay the capital call, respondent filed a motion to hold
appellant in contempt under NRS 22.010 and requested sanctions in the
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form of attorney fees and expert fees associated with the collection of that
capital call.
After a show cause hearing, the district court entered an order
on February 5, 2010, finding appellant in contempt for failing to pay the
capital call. That order also awarded respondent attorney fees incurred in
collecting the capital call and directed respondent's attorney to provide an
affidavit regarding his fees. The affidavit was thereafter filed with the
court, and appellant filed an objection. On March 24, 2010, the district
court entered an order awarding respondent $25,000 in attorney fees. On
April 26, 2010, appellant filed her first appeal designating both the
contempt order and the attorney fees order, which is currently pending in
Docket No. 56062.
Respondent then filed in the district court a motion to
sequester funds for future capital calls, in which he requested that the
court order the sale of appellant's Traditions home for the purpose of
meeting future capital calls and assisting with his negotiations with
various lenders aimed at reducing the loans for which the marital estate
was still obligated. Appellant opposed the motion. On July 8, 2010, the
district court entered an order directing the sale of both the Traditions
home and the Hideaway home. That order also approved another capital
call to be paid by appellant in the amount of $99,911.99. Appellant's
timely appeal from that order is pending in Docket No. 56687.
About eight months after the district court ordered appellant
to sell her Traditions home, respondent filed a motion to hold appellant in
contempt for continuing violation of court orders and for attorney fees. In
the motion, respondent alleged, among other things, that appellant
interfered with the marketing of her home, failed to meet certain capital
3
calls, and failed to execute documents as required by court order.
Appellant opposed the motion. After a hearing, the district court entered
an order on June 29, 2011, denying respondent's request to find appellant
in contempt, but directing appellant to pay respondent $75,000 in attorney
fees as a sanction based on appellant's continued delay tactics, which
necessitated respondent's motion practice. Appellant's timely appeal from
that order is pending in Docket No. 58888.
DISCUSSION
When our review of the documents pending before this court
revealed a potential jurisdictional defect, we directed appellant to show
cause why these appeals should not be dismissed for lack of jurisdiction
because the orders did not appear to be substantively appealable.
Appellant has filed her response as directed.' For the reasons set forth
below, we conclude that we lack jurisdiction over these appeals.
This court has jurisdiction to consider an appeal only when the
appeal is authorized by statute or court rule. Taylor Constr. Co. v. Hilton
Hotels Corp., 100 Nev. 207, 678 P.2d 1152 (1984). NRAP 3A(b) allows
appeals to be taken from a final judgment and from a special order entered
after a final judgment. See NRAP 3A(b)(1) and (8). In response to our
show cause order, appellant contends that the orders are final and
appealable under NRAP 3A(b)(1) because they finally resolve issues
relating to contempt. Alternatively, appellant contends that the orders
are appealable as special orders entered after a final judgment because
"On May 9, 2013, respondent filed a motion for leave to reply to
appellant's response, but only if this court requires additional information.
In light of our disposition of this matter, we deny the motion.
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they affect her rights arising from the divorce decree by requiring her to
sell property awarded to her under the decree and by directing her to pay
substantial attorney fees to respondent.
Appellant's contentions are unpersuasive. The district court
has not entered a final judgment in the proceeding below. Therefore, the
challenged orders are not appealable as either a final judgment or as
special orders entered after a final judgment. In a divorce proceeding such
as this, the final judgment is one that finally resolves all issues pertaining
to the dissolution of the parties' marriage, including the division of
property. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417
(2000) (recognizing that a final judgment is one that disposes of all issues
presented and leaves nothing for the court's future consideration, except
for certain post-judgment issues). In determining whether a judgment is
final, this court will typically look beyond the label and instead take a
functional view of finality. Valley Bank of Nevada v. Ginsburg, 110 Nev.
440, 444, 874 P.2d 729, 733 (1994). The requirement of finality furthers
judicial economy by avoiding piecemeal appellate review. Id.
Here, although the district court entered a divorce decree in
2009, the decree and any prior orders incorporated therein did not finally
resolve the division of the parties' community property, and that issue
remains pending. The decree divided some community property assets,
but pursuant to the parties' agreement, the remaining community estate
was to be liquidated and the proceeds thereafter divided, with the court
retaining jurisdiction over that liquidation process. The district court is
still actively involved in the liquidation and division of the parties'
community property assets, as evidenced by the various orders challenged
in these appeals. Therefore, because no final judgment has been entered
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in the divorce proceeding, the orders challenged in these appeals are
interlocutory and not independently appealable, and we lack jurisdiction
to consider them. See NRAP 3A(b) (listing orders and judgments from
which an appeal may be taken); Pengilly v. Rancho Santa Fe Homeowners
Ass'n., 116 Nev. 646, 649, 5 P.3d 569, 571 (2000) (recognizing that a
contempt order is not independently appealable).
Accordingly, we dismiss these appeals. We note that because
these orders are interlocutory, they may be challenged on appeal from the
final judgment that resolves the remaining property distribution issues.
Consol. Generator-Nevada, Inc. v. Cummins Engine Co., 114 Nev. 1304,
1312, 971 P.2d 1251, 1256 (1998) (stating that interlocutory orders may be
challenged on appeal from the final judgment)
It is so ORDERED.
Gibbons
locag J.
DougTas
Saitta
cc: Ninth Judicial District Court Dept. 1
Carolyn Worrell, Settlement Judge
Black & LoBello
Sherry B. Bowers
Silverman, Decaria & Kattelman, Chtd.
Jolley Urga Wirth Woodbury & Standish
Douglas County Clerk
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