Byrd v. Byrd

137 Nev., Advance Opinion 4,0
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

GRADY EDWARD BYRD, No. 80548-COA
Appellant,
vs.
CATERINA ANGELA BYRD,
FP ED
Respondent.

ret,

rI DLfrY CLERX
Appeal from a special order after final judgment modifying a
decree of divorce. Eighth Judicial District Court, Clark County; Rhonda
Kay Forsberg, Judge.
Reversed and remanded.

Mills & Anderson Law Group and Daniel W. Anderson and Byron L. Mills,
Las Vegas,
for Appellant.

Webster & Associates and Jeanne F. Lambertsen and Anita A. Webster, Las
Vegas,
for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.

OPINION

By the Court, BULLA, J.:
Four years after entering a divorce decree incorporating a
marital settlement agreement, the district court granted a motion to modify

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 that decree under NRCP 60(b)(6), which allows for relief from a judgment
for any justifiable reason besides those otherwise specifically listed in that
rule, and awarded respondent lifetime alimony. In so doing, the court
refused to allow appellant to participate virtually from the Philippines,
where he resides. In this appeal from the district court's modification order,
we determine (1) whether the divorce decree was properly reopened under
NRCP 60(b)(6) based on alleged misrepresentations made when the marital
settlement agreement was entered, (2) whether federal preemption
precludes the district court from ordering alimony to be paid directly from
a veteran's disability benefits as indemnification for waiving a portion of a
military pension plan, and (3) whether a district court may summarily deny
a party's request to testify via audiovisual transmission pursuant to Part
IX-B(B) of the Nevada Supreme Court Rules.
We conclude that NRCP 60(b)(6) relief was inappropriate in the
instant case, that federal law prohibits state courts from ordering
reimbursement and indemnification from a veteran's disability payments
for the purpose of offsetting military pension waivers, and that the district
court must consider the relevant good cause factors and the policy in favor
of allowing parties to appear via audiovisual transmission when considering
such a request. Accordingly, we reverse and remand.
I.
Appellant Grady Byrd and respondent Caterina Byrd were
married in 1983. Because Grady was an active military member, the couple
moved frequently and eventually relocated to Las Vegas in 2008. That same
year, however, the couple ceased cohabitation. In June 2014, the district
court granted the parties a summary divorce and merged their marital

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 settlement agreement (MSA) into the divorce decree. Later, Grady moved
to the Philippines, where he currently resides.
Although the decree of divorce specifies that "neither party
shall be required to pay spousal support to the other," it also provides that
Grady will pay Caterina $1,500 per month to assist with her mortgage (the
mortgage assistance provision) and that this payment may cease if
Caterina's financial situation changes. The decree also provides that
Caterina is entitled to 50 percent of Grady's military retirement pay. From
2014 until September 2018, Grady paid Caterina $3,000 per month total
under these provisions.
In 2018, without explanation, Grady stopped making payments,
and Caterina moved the district court to enforce the divorce decree. At the
initial hearing on the motion, the district court opened discovery and set the
matter for a status check but preliminarily concluded that the mortgage
assistance provision constituted an alimony provision and that Grady was
obligated to continue paying Caterina pending further proceedings. The
court also found that 50 percent of Grady's military retirement pay was
$1,500, as demonstrated by Grady paying Caterina $3,000 per month—
$1,500 pursuant to the mortgage assistance provision and $1,500 as her
portion of the retirement pay—for four years.
In April 2019, Grady filed a motion for reconsideration and
argued that the district court's temporary order should be set aside, as the
mortgage assistance provision was not an alimony provision and the parties
mutually agreed to waive any alimony. Additionally, Grady argued that his
net military retirement pay was $128.40 per month, entitling Caterina to
$64.20 as her community share, and the remainder of his retirement pay
was waived when he took disability pay pursuant to 10 U.S.C. § 1408 and

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 38 U.S.C. § 5305. Caterina opposed, arguing that the district court did not
err in finding that Grady wrongfully terminated payments to Caterina and
ordering him to continue the same. Caterina also counter-moved for relief
from the decree pursuant to NRCP 60(b)(6) and to modify the decree, should
the district court be inclined to grant Grady's motion for reconsideration.
In particular, Caterina argued that, at the time of divorce, Grady
misrepresented to her that his retirement pay was valued at approximately
$3,000 per month, such that her 50-percent interest would be approximately
$1,500 per month. Thus, she reasoned that if he intended for Caterina to
waive alimony based on this misrepresentation, then he fraudulently
induced Caterina into signing the MSA. At the hearing on Grady's motion,
the district court set the matter for an evidentiary hearing and stated that
he would be required to be present. Further, the court concluded that its
temporary order should be set aside, as the mortgage assistance provision
was not alimony but rather constituted a community property distribution.
The district court also ordered Grady to continue paying Caterina as
previously ordered until such time that he proved her financial
circumstances had changed, pursuant to the terms of the MSA.
Grady did not make monthly payments as ordered, and
Caterina filed an emergency motion for an order to show cause why Grady
should not be held in contempt. At the hearing on Caterina's motion, the
courtroom clerk attempted to contact Grady at the phone number provided

1 The Honorable Kathy Hardcastle, Senior Judge, conducted the
initial hearing on Caterina's motion to enforce the decree, but Grady's
motion for reconsideration was heard by the Honorable Rhonda Kay
Forsberg, Judge. Similarly, while Senior Judge Hardcastle presided over
the subsequent evidentiary hearing, Judge Forsberg signed the final order
stemming from that hearing.
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to the court, but the call failed to go through. Additionally, at the hearing,
the court noted that Grady's counsel represented Grady would not pay
Caterina, despite the coures interim orders, until the evidentiary hearing
resolved the issues. Further, the district court noted at the hearing and in
its subsequent order that Grady had not filed an opposition to the motion.
Accordingly, the district court issued an order to show cause why Grady
should not be held in contempt, to be heard at the same time as the
evidentiary hearing to modify or set aside the divorce decree.
Prior to the evidentiary hearing, Grady filed a request with the
district court to appear via audiovisual transmission, citing his inability to
fly internationally because of a pulmonary condition. Although no order
appears in Grady's appendix on appeal, he represented in his motion for
reconsideration and on appeal that the district court summarily denied his
request without any explanation. In its order following the evidentiary
hearing, the district court likewise denied Grady's rnotion for
reconsideration on this issue.
At the evidentiary hearing, which Grady did not attend, it was
revealed through Caterina's testimony, as well as various documents, that
prior to the couple's divorce, Grady had waived nearly $3,000 of his monthly
retirement pay in favor of receiving veterans disability benefits pursuant
to federal law. As a result, the value of Gradys pension was reduced from
$3,017 to $128.40 per month, entitling Caterina to a monthly payment of
only $64.20. But, according to Caterina's testimony, Grady represented at
the time of the parties' divorce that his monthly retirement pay was $3,017
and, therefore, under the decree he was obligated to pay her $3,000 per
month—$1,500 pursuant to the mortgage assistance provision and $1,500
as her one-half interest in his military retirement, which was consistent

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with the payments Grady made for the first four years after the decree was
entered, until he ceased paying in 2018. Notably, because Grady was not
permitted to appear remotely and did not appear in person, he did not
testify to rebut any of this evidence.
After the evidentiary hearing, the district court modified the
decree, concluding, among other things, that (1) the alimony waiver was
unenforceable; (2) because Grady waived a portion of his military
retirement pay, he must continue to pay Caterina monthly from his
veteran's disability benefits; (3) Grady owed Caterina a fiduciary duty,
which he breached by misrepresenting his assets, thus making NRCP
60(b(6) relief appropriate; (4) Caterina's request for NRCP 60(b)(6) relief
was timely; (5) the divorce decree's mortgage assistance and military
pension clauses were vague and ambiguous; and (6) Caterina was entitled
to lifetime alimony. Grady now appeals.
In this appeal, we address the following issues: (1) whether the
district court abused its discretion in modifying the decree of divorce under
NRCP 60(b)(6), (2) whether the district court erred when it ordered Grady
to pay alimony directly from his veteran's disability benefits, and
(3) whether the district court abused its discretion when it summarily
denied Grady's request to appear via audiovisual transmission.
11.
We first address the district court's decision to modify the
divorce decree under NRCP 60(b)(6). When Grady stopped paying Caterina
$3,000 per month, the amount she believed she was entitled to under the
decree, Caterina moved to enforce the decree. After additional motion
practice, the district court ultimately held an evidentiary hearing,
concluded that portions of the decree should be set aside pursuant to NRCP

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 60(b)(6), and modified the decree to award Caterina lifetime alimony.
Grady challenges this decision on appeal, asserting that NRCP 60(b) relief
was improper.
The district court has inherent authority to interpret and
enforce its decrees. Henson v. Henson, 130 Nev. 814, 820 n.6, 334 P.3d 933,
937 n.6 (2014) (citing In re Water Rights of the Humboldt River, 118 Nev.
901, 906-07, 59 P.3d 1226, 1229-30 (2002), for the proposition that the
district court has inherent authority to enforce its orders); Kishner v.
Kishner, 93 Nev. 220, 225, 562 P.2d 493, 496 (1977) (explaining that the
district court "has inherent power to construe its judgments and decrees for
the purpose of removing any ambiguity"). But "[al decree of divorce cannot
be modified or set aside except as provided by rule or statute." Kramer v.
Kramer, 96 Nev. 759, 761, 616 P.2d 395, 397 (1980). Here, the district court
purported to partially set aside and modify the decree of divorce pursuant
to NRCP 60(b)(6).
The district court has broad discretion to grant or deny a motion
to set aside a judgment under NRCP 60(b), and "[i]ts determination will not
be disturbed on appeal absent an abuse of discretion." Cook v. Cook, 112
Nev. 179, 181-82, 912 P.2d 264, 265 (1996). "An abuse of discretion occurs
if the district court's decision is arbitrary or capricious or if it exceeds the
bounds of law or reason." Skender v. Brunsonbuilt Constr. & Dev. Co., 122
Nev. 1430, 1435, 148 P.3d 710, 714 (2006). Although review for abuse of
discretion is deferential, "deference is not owed to legal error." AA Primo
Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197
(2010).
NRCP 60(b) provides, as pertinent here, that "the court may
relieve a party . . . from a final judgment, order, or proceeding for . . .

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 (1) mistake, inadvertence, surprise, or excusable neglect; . . (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; . . . or (6) any other reason that justifies
relief." "A motion under Rule 60(b) must be made within a reasonable
time—and for reasons (1) . . . and (3) no more than 6 months after the date
of the proceeding or the date of service of written notice of entry of the
judgment or order, whichever date is later." NRCP 60(c)(1) (emphases
added). Furthermore, the time limits set forth in NRCP 60 are generally
applicable to divorce decrees. See, e.g., Mizrachi v. Mizrachi, 132 Nev. 666,
673, 385 P.3d 982, 986 (Ct. App. 2016); see also Kramer, 96 Nev. at 762-63,
616 P.2d at 397-98.
NRCP 60(b)(6) is a recent addition to the Nevada Rules of Civil
Procedure. See In re Creating a Comm. to Update & Revise the Nev. Rules
of Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil
Procedure, the Rules of Appellate Procedure, and the Nevada Electronic
Filing and Conversion Rules, December 31, 2018). According to the
advisory committee, "Mlle amendments generally conform Rule 60 to FRCP
60, including incorporating FRCP 60(b)(6) as Rule 60(b)(6)." NRCP 60(b)
advisory committees note to 2019 amendment. It is well established that
when, as here, there is no mandatory decisional law interpreting a rule of
civil procedure, this court looks to federal cases for guidance. McClendon v.
Collins, 132 Nev. 327, 330, 372 P.3d 492, 494 (2016) (concluding that the
If] ederal cases interpreting the Federal Rules of Civil Procedure are strong
persuasive authority, because the Nevada Rules of Civil Procedure are
based in large part upon their federal counterparte (internal quotation
marks omitted)).

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 Generally, Rule 60(b)(6) has a limited and unique application.
As the United States Supreme Court has acknowledged, "Rule 60(b)(6) is
available only in extraordinary circumstances," Buck v. Davis, 580 U.S. ,
, 137 S. Ct. 759, 777 (2017) (internal quotation marks omitted), "which
are not addressed by the first five numbered clauses of the Rule and only as
a means to achieve substantial justice." Tanner v. Yukins, 776 F.3d 434,
443 (6th Cir. 2015) (internal quotation marks omitted). In other words,
NRCP 60(b)(6) provides an independent basis for relief that is mutually
exclusive of clauses (1)-(5). See 11 Charles Alan Wright, Arthur R. Miller &
Mary K. Kane, Federal Practice and Procedure, § 2864 (3d ed. 2012)
(explaining "that clause (6) and the first five clauses are mutually exclusive
and that relief cannot be had under clause (6) if it would have been available
under the earlier clauses"); see also Klapprott v. United States, 335 U.S. 601,
613-15 (1949) (stating that subsection (6) applies "for all reasons except the
five particularly specified" in Rule 60(b)(1)-(5) when "appropriate to
accomplish justice).
Here, we agree with Grady that relief under NRCP 60(b)(6) was
improper. While Caterina argued in her motion practice below that the
district court could modify the decree because extraordinary circumstances
existed warranting NRCP 60(b)(6) relief, her basis for relief sounded in
NRCP 60(b)(1) or 60(bX3). Specifically, Caterina alleged that Grady
"misinformed [her] and led her to believe that he would give her $3,000.00
per month for his lifetime." These allegations sound in fraud,
misrepresentation, mistake, or excusable neglect. Thus, Caterina's
assertions fell within the ambit of NRCP 60(b)(1) or 60(bX3) rather than
NRCP 60(bX6). And because Caterina's claim is one that is specifically
contemplated by the first five enumerated sections of NRCP 60(b), relief

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 under NRCP 60(b)(6) is unavailable. Klapprott, 335 U.S. at 613-15; see also
11 Wright, Miller & Kane, supra, § 2864.
Moreover, motions for relief based on mistake, inadvertence,
surprise, or excusable neglect, or fraud, misrepresentation, or misconduct,
under NRCP 60(b)(1) or 60(b)(3), respectively, must be brought within six
month.s of service of the written notice of entry of the judgment. NRCP
60(c)(1). Therefore, even if the district court had construed Caterina's
motion as seeking relief under NRCP 60(b)(1) or 60(b)(3), rather than
60(b)(6), such a motion would have been untimely here, and relief on that
basis would have likewise been improper. Accordingly, the district court
abused its discretion in granting relief pursuant to NRCP 60(b). See Cook,
112 Nev. at 182, 912 P.2d at 265.
But this does not end our analysis. As noted above, Caterina
initially moved to enforce the decree, asserting that the mortgage assistance
payment was truly an alimony award and that Grady refused to provide
Caterina with any documentation demonstrating she was receiving her
portion of the retirement pay, such that she did not know whether she was
receiving her awarded interest. And the district court has the inherent
authority to interpret and enforce its decrees. Henson, 130 Nev. at 820 n.6,
334 P.3d at 937 n.6; Kishner, 93 Nev. at 225, 562 P.2d at 496. Yet here, the
district court failed to consider Caterina's motion on this basis. Thus,
reversal and remand is warranted for the district court to consider the
issues presented under the appropriate authority.2 And, in light of this

2We recognize that the district court concluded the decree was
ambiguous and interpreted the mortgage assistance provision as periodic
payments constituting alimony despite the parties purported agreement to
waive alimony in the MSA. And we note that alimony may be modified
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 conclusion, we find it necessary to address Grady's remaining arguments on
appeal to ensure this matter is properly considered on remand.

Grady next contends that the district court erred when it
ordered him to make alimony payments to Caterina directly from his
veteran's disability benefits. Under federal law, "a State may treat
veterans"disposable retired pay as divisible property, i.e., community
property divisible upon divorce." Howell v. Howell, 581 U.S. „ 137
S. Ct. 1400, 1403 (2017) (citing 10 U.S.C. § 1408(c)(1)). However, "amounts
deducted from that pay 'as a result of a waiver.. . . required by law in order
to receive' disability benefits" are excluded from this rule. Id. at , 137
S. Ct. at 1403 (citing 10 U.S.C. § 1408(a)(4)(B)). The amounts are excluded
from the divisible property allocation even when that means the value of a
spouses share of the military retirement pay is worth less than the spouse
believes at the time of the divorce. Id. at , 137 S. Ct. at 1405. Therefore,
under federal law, only a veteran's net disposable retirement pay is divisible
as community property, whereas his or her waived amount, taken in the
form of disability pay, is not community property subject to such division.
Mansell v. Mansell, 490 U.S. 581, 594-95 (1989) (holding that federal law
wholly preempts states from treating military retirement pay that has been
waived to receive veteran& disability benefits as community property).
In Howell, John, the ex-husband, "elected to receive disability
benefits and consequently had to waive about $250 per month of the roughly

under certain circumstances pursuant to NRS 125.150. But because the
district court ultimately decided to set aside part of the decree and modify
it pursuant to NRCP 60(b), failing to consider NRS 125.150 in so doing, we
make no comment as to the merits of these conclusions. Instead, we remand
the matter for the district court to consider these issues in the first instance.
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$1,500 of military retirement pay he shared with Sandra [his ex-wife] ."
Hotvell, 518 U.S. at , 137 S. Ct. at 1404. Sandra moved the Arizona
family court to enforce the decree, requesting that the court "restor[e] the
value of her share of John's total retirement pay." Id. The family court
"ordered John to ensure that Sandra 'receive her full 50% of the military
retirement without regard for the disability.'" Id. Subsequently, the
Arizona Supreme Court affirmed, reasoning that the family court's ruling
did not implicate federal preemption because it "simply ordered John to
'reimburse Sandra for 'reducing . . her share of military retirement pay."
Id. John petitioned the United States Supreme Court for certiorari, and the
Court granted his petition. Id.
In its opinion, the Court noted that, consistent with Mansell,
"federal law completely pre-empts the States from treating waived military
retirement pay as divisible community property." Id. at , 137 S. Ct. at
1405. In light of Mansell, the Court concluded that it was compelled to
reverse the decision of the Arizona court because "the reimbursement
award" to Sandra was tantamount to "an award of the portion of military
retirement pay that John waived in order to obtain disability benefits,"
which is precisely "the portion that federal law prohibits state courts from
awarding to a divorced veteran's former spouse." Id. Moreover, the Court
noted, "Hegardless of their form, such reimbursement and indemnification
orders displace the federal rule and stand as an obstacle to the
accomplishment and execution of the purposes and objectives of Congress.
All such orders are thus pre-empted." Id. at , 137 S. Ct. at 1406.
Additionally, the timing of the waiver—i.e., whether it occurred prior to or
after the divorce—is irrelevant to the analysis. Id. at , 137 S. Ct. at 1405.

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 Here, the district court concluded that Grady was obligated to
pay Caterina $1,500 per month from his military retirement and that he
could not reduce this payment by claiming it was disability pay. The court
went on to conclude that because Grady waived a portion of his retirement
in favor of veterans disability benefits and Caterina needed support,
"Caterina should receive lifetime alimony." The district court then ordered
Grady to reimburse Caterina "from [his] military pension disability." This
was error.
Like in Howell, the district court ordered Grady to indemnify
Caterina directly from his disability benefits to offset the loss of her interest
in the retirement benefits based on Grady's retirement waiver. But
pursuant to Howell, such orders are exactly what federal law forbids, and
therefore, "Earn such orders are . . . pre-empted" by federal law and invalid.
581 U.S. at , 137 S. Ct. at 1406. Accordingly, because the district court
ordered Grady to reimburse Caterina directly from his disability benefits,
which is prohibited by federal law, the district court's order is invalid as a
matter of law.
To the extent that both the district court and Caterina appear
to suggest that Mansell and Howell are distinguishable from the instant
case, and that the Nevada Supreme Court's decision in Shelton v. Shelton,
119 Nev. 492, 78 P.3d 507 (2003), controls, we disagree. In Shelton, the
district court did not order the ex-husband to reimburse the ex-wife directly
from his disability benefits. Instead, the court concluded that pursuant to
the parties' agreement, the ex-husband was obligated to pay the ex-wife
$577 per month. Shelton, 119 Nev. at 497, 78 P.3d at 510.
Importantly, the court did not order those payments to come
directly from the ex-husband's disability pay; indeed, the court noted that

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 "[i]t appears that [the ex-husband] possesses ample other assets from which
to pay his obligation without even touching his disability pay." Id. at 498,
78 P.3d at 510-11. Thus, the court concluded that under the divorce
agreement the ex-husband was obligated to pay his ex-wife $577 and he
could satisfy that obligation from any one of his available assets. Id.
Notably, when first determining the value of the parties assets at divorce,
the district court may take into account that some military retirement pay
might be waived, and it likewise may take into account reductions in the
value of the retirement pay "when it calculates or recalculates the need for
spousal support." Howell, 518 U.S. at , 137 S. Ct. at 1406. We also note
that Shelton predates Howell, and Howell confirmed and clarified the scope
of federal preemption in this context.
Here, by contrast, the district court specifically ordered Grady
to reimburse Caterina "from [his] military pension disability," which
patently violates Mansell and Howell. And the district court cannot avoid
this problem by referring to the allocation as alimony rather than
community property because, as the Howell court recognized, the form of
the allocation is irrelevant. 581 U.S. at , 137 S. Ct. at 1406. In other
words, the order's effect is more important than how it is styled. Thus, the
order at issue in this case violates federal law because it directs Grady to
indemnify Caterina directly from his disability benefits. Consequently, we
conclude that this portion of the district court's order is preempted by
federal law and is therefore invalid.
IV.
Finally, Grady argues that the district court abused its
discretion when it summarily denied his initial request, as well as his
motion for reconsideration, to testify from his home in the Philippines via

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audiovisual transmission pursuant to Part IX-B(B) of the Nevada Supreme
Court Rules.
This court reviews a district court's decision whether to permit
a witness to testify via audiovisual transmission for an abuse of discretion.
See LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 395, 422 P.3d 138,
140 (2018). In order "[t]o improve access to the courts and reduce litigation
costs, courts shall permit parties, to the extent feasible, to appear by
simultaneous audiovisual transmission equipment at appropriate
proceedings pursuant to these rules." Id. (quoting SCR Part IX-B(B)(2))
(internal quotation marks omitted). Under these rules, "shall" is
mandatory. SCR Part IX-B(B)(1)(5).
Proceedings that are considered appropriate for audiovisual
transmission include Ithials [and] hearings at which witnesses are
expected to testify . . . provided there is good cause as determined by the
court in accordance with Rule 1(6)." SCR Part IX-B(B)(4)(1)(a). "Good
cause" may consist of any number of factors as determined by the court,
including whether a timely objection has been made; whether allowing the
appearance would cause any undue surprise or prejudice; the convenience
of the parties, counsel, and the court; any cost and time savings; whether
the appearance by audiovisual equipment would allow effective cross-
examination; the importance of live testimony; and the quality of the
communication, among other things. SCR Part IX-B(B)(1)(6)(a)-(k). "The
Nevada Supreme Court Rules favor accommodation of audiovisual
testimony upon a showing of good cause." LaBarbera, 134 Nev. at 395, 422
P.3d at 140.
Here, Grady produced documentation from three healthcare
providers indicating that he was unable to travel internationally due to his

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underlying health condition. Additionally, the district court was fully
aware that Grady resided in the Philippines, which could make it costly to
travel, and therefore denying his request could mean that he would not be
present at the evidentiary hearing to testify. Moreover, Caterina's
opposition failed to assert, and there was no finding of, any undue surprise
or prejudice. In contrast, the record demonstrates that the district court
found Grady's medical notes were not credible because Grady failed to
provide any evidence of an actual diagnosis, as the medical notes he
provided indicated only that he should follow up with his doctors at the
Department of Veterans Affairs. Additionally, the district court indicated
that it had previously attempted to contact Grady during a hearing and was
unable to do so, such that it had concerns regarding whether Grady would
actually be available during the evidentiary hearing, and Grady had openly
defied the court's prior orders. Ultimately, the district court denied Grady's
initial request and then denied his motion for reconsideration.
Based on the foregoing, we recognize that there were a number
of factors pertinent to the district court's decision. And while the district
court has discretion in determining whether to grant a request to appear
via audiovisual transmission, the court must determine whether good cause
exists based on all of the relevant factors and in light of the policy in favor
of allowing such appearances. See LaBarbera, 134 Nev. at 395, 422 P.3d at
140. Here, nothing in the record demonstrates whether the court
considered the SCR Part IX-B(B)(1)(6) factors in denying Grady's request,
and the district court failed to make any good cause findings. While the
record indicates that the district court considered Grady's medical notes and
concluded they were not credible, in denying reconsideration of the denial
of his request to appear by audiovisual equipment, consideration of these

16
 notes alone is insufficient, as the district court is required to consider all of
the relevant good cause factors under SCR Part IX-B(B)(1)(6) in light of the
policy in favor of allowing audiovisual appearances. See id. As a result, we
would normally conclude that the district court abused its discretion in
denying Grady's request to appear telephonically.
Nevertheless, at the time set for the evidentiary hearing on the
motions relating to the terms of the decree, the matter was also set for a
show cause hearing regarding Grady's failure to pay the monthly amounts
previously ordered by the court. In this case, the show cause hearing was
not set as a stand-alone hearing but rather with the evidentiary hearing,
and Grady's personal appearance was required for the hearing pursuant to
the order to show cause.3 SCR Part IX-B(B)(4)(2)(b) (providing that
personal appearance is required for those ordered to appear for a show
cause hearing). Notably, Caterina argued on appeal that Grady was
required to appear for the order to show cause hearing, and Grady failed to
address this argument in his reply brief. Therefore, under the particular
facts of this case, we cannot conclude that the district court abused its

3We note that when a party is required to appear personally for a
show cause hearing but seeks to appear via audiovisual equipment for a
separate hearing, like an evidentiary hearing, the district court could
bifurcate the show cause hearing from the pending substantive motions. In
such a case, the district court could continue the hearing on the order to
show cause to a date when the party can appear in person, while still
permitting the party to appear remotely for the evidentiary hearing only, to
ensure the party can meaningfully participate in the evidentiary hearing.
See LaBarbera, 134 Nev. at 396, 422 P.3d at 140 (concluding that the
district court's denial of a request to appear via audiovisual equipment was
prejudicial because the party's absence prevented him from responding to
the testimony presented at trial); see also Fisher v. McCrary Crescent City,
LLC, 972 A.2d 954, 983 (Md. Ct. Spec. App. 2009) ("A party's right to be
present at a hearing or trial is a substantial right.").
COURT OF APPEALS.
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och 19470 aelos,
discretion in requiring Grady's appearance at the time set for hearing on
the order to show cause, even though his participation by audiovisual
equipment for the evidentiary hearing may have otherwise been
appropriate. Regardless, because we find it necessary to reverse and
remand on the issues discussed above, we note that on remand the district
court should consider all of the relevant factors when determining whether
Grady's personal appearance is required for any future hearings should
Grady again request to appear via audiovisual equipment.
V.
In summary, the district court abused its discretion in
modifying the decree of divorce pursuant to NRCP 60(b)(6), as Caterina's
assertions sounded in NRCP 60(b)(1) or 60(b)(3) and NRCP 60(b)(6) only
applies in extraordinary circumstances not addressed by NRCP 60(b)(1)-(5).
The district court likewise abused its discretion in ordering Grady to pay
Caterina alimony directly from his veteran's disability benefits, as such an
order is preempted by federal law. Finally, while a district court abuses its
discretion in summarily denying a request to appear via audiovisual
transmission without addressing the good cause factors, because the record
here demonstrates that the matter was also set for a show cause hearing,
we ultimately cannot conclude that the district court abused its discretion
in requiring Grady's appearance at the hearing. Nonetheless, on remand,
the district court must consider the relevant factors when considering
whether Grady must appear in person at any future hearings should he
again request to appear via audiovisual transmission.

18
 Accordingly, we reverse the district court's modification order
and remand with instructions for the district court to conduct further
proceedings consistent with this opinion.

Bulla

We concur:

, C.J.
Gib ons

J.
Tao

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(n) 1947B