IN THE SUPREME COURT OF THE STATE OF NEVADA
LEE DAVID HUSTEAD, No. 70342
Petitioner,
vs.
THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
FILED
WASHOE; AND THE HONORABLE JUL 1 3 2016
CYNTHIA LU, DISTRICT JUDGE,
Respondents,
and
MARJORIE L. HUSTEAD,
Real Party in Interest.
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
This is an original pro se petition for a writ of mandamus
arising from a post-divorce decree contempt proceeding.
Initially, we note that petitioner has not provided proof that
he served the petition on the respondent judge as required by NRAP
21(a)(1). Additionally, having reviewed the petition, we conclude that
petitioner has not demonstrated that our intervention by extraordinary
writ relief is warranted. See Pan v. Eighth Judicial Din. Court, 120 Nev.
222, 228, 88 P.3d 840, 844 (2004) (explaining that it is petitioner's burden
to demonstrate that writ relief is warranted). In the writ petition and
supplemental pleadings, petitioner first challenges the district court's May
24, 2016, order finding him in contempt for failing to pay $5,000 in
alimony arrears and directing him to pay an additional $1,000 per month
until the arrears are paid. Having considered petitioner's arguments and
reviewed the documentation in support of the petition, we conclude that
petitioner has not demonstrated that the district court's order constituted
an arbitrary or capricious exercise of discretion. Int'l Game Tech., Inc. v.
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Second Judicial Din. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)
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(stating that a writ of mandamus is available to control an arbitrary or
capricious exercise of discretion); Pengilly v. Rancho Santa Fe
Homeowners Ass'n, 116 Nev. 646, 650, 5 P.3d 569, 571 (2000) (providing
that a district court order of contempt should not be lightly overturned).
Additionally, while the district court granted real party in interest's
request for attorney fees, the order did not award an amount of fees but
instead directed real party in interest to file an affidavit of fees, and thus
the attorney fees issue was not decided with finality.
Petitioner also challenges a district court "Order Regarding
Appeal" entered on May 2, 2016. In that order, the district court states
that petitioner filed a notice of appeal from the court's oral ruling on the
contempt matter and indicates that the court will resolve any remaining
issues once the appeal is concluded and the matter remitted. Petitioner
appears to argue that the district court retains jurisdiction to resolve his
"Motion to Recover Overpayments Made in Lieu of QDRO" and "Motion to
Compel Disclosure and Reduce Alimony" because his notice of appeal was
prematurely filed before a written order was entered and because those
motions were collateral to the issues on appeal. See NRAP 4(a)(6) (stating
that a premature notice of appeal does not divest the district court of
jurisdiction); Mack-Manley v. Manley, 122 Nev. 849, 855, 138 P.3d 525,
529-30 (2006) (explaining that when an appeal is perfected, the district
court retains jurisdiction over collateral matters that in no way affect the
appeal's merits). The records before this court reflect that petitioner's
appeal was dismissed as premature. See Hustead v. Hustead, Docket No.
70156 (Order Dismissing Appeal, April 27, 2016). Once the district court
has the opportunity to resolve the issues raised in petitioner's motions, he
may appeal if aggrieved. See NRAP 3A(b)(8) (allowing an appeal from a
special order entered after a final judgment); Pan, 120 Nev. at 224, 88
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P.3d at 841 (explaining that an appeal is generally an adequate legal
remedy precluding writ relief).
Therefore, we conclude that petitioner has not demonstrated
that this court's intervention by extraordinary writ relief is warranted at
this time. Accordingly, we decline to intervene in this matter and we deny
the petition. See NRAP 21(b)(1); Smith v. Eighth Judicial Dist. Court, 107
Nev. 674, 677, 818 P.2d 849, 851 (1991) (stating that a petition for
extraordinary writ relief is purely discretionary with this court).
It is so ORDERED.
cc: Hon. Cynthia Lu, District Judge, Family Court Division
Lee David Hustead
Surratt Law Practice, PC
Washoe District Court Clerk
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