Eivazi v. Eivazi

Li
139 Nev., Advance Opinion

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

PARVIZ EIVAZI, No. 84427-COA
Appellant,
vs.
FATEMEH EIVAZI,
FL
Respondent. OCT 05 2023

BY
C EF DEPUTY CLERK

Appeal from a district court decree of divorce. Eighth Judicial
District Court, Family Division, Clark County; Nancy Saitta, Sr. Judge.'
Affirmed in part, reversed in part, and remanded.

Hofland & Tomsheck and Bradley J. Hofland, Las Vegas,
for Appellant.

Radford J. Smith, Chartered, and Garima Jain and Radford J. Smith,
Henderson,
for Respondent.

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

OPINION

By the Court, WESTBROOK, J.:
In this opinion, we take the opportunity to caution both
practitioners and district courts of the dangers inherent in the practice of

'District Court Judge Nadin Cutter is now assigned to the case.
COURT OF APPEALS
OF
NEVADA
-32-k.31
1.< 1) 19475
adopting wholesale a litigant's proposed findings of fact and conclusions of
law. In this case, following lengthy divorce proceedings, the district court
summarily adopted respondent Fatemeh Eivazi's proposed 61-page findings
of fact, conclusions of law, and decree of divorce as drafted, without making
any modifications. Appellant Parviz Eivazi contends that it was reversible
error for the district court to do so. We conclude that utilizing a party's
proposed order does not in and of itself constitute an abuse of discretion, as
the practice of requesting and adopting proposed orders from the parties is
both well established and often necessary to the administration of justice.
Nevertheless, we strongly urge both litigants and judges to exercise care
when preparing and adopting such orders.
Practitioners should ensure that proposed orders are both

factually accurate and legally adequate, and courts should diligently
exercise their discretion and thoroughly review litigant-drafted orders
before adopting them. In this case, while portions of the decree are legally
and factually supportable, other parts contain numerous legal and factual
deficiencies. With respect to the latter, we conclude that the district court
abused its discretion when it granted financial awards for alimony, attorney
fees, and expert fees and when it unequally distributed the parties'
community property and debt. Accordingly, we affirm in part, reverse in
part, and remand this matter to the district court for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTOR Y
Although previously married in Iran, Parviz and Fatemeh
moved to the United States and were married in Las Vegas in 2001.

COURT OF APPEALS
OF
NEVADA
2
WI 1947B ArgrD
Faterneh filed for divorce in June 2016.2 From the inception of the case, the
divorce proceedings were drawn out and highly contested. In the first year
alone, both parties filed multiple motions and countermotions, requesting
attorney fees and costs in connection with those filings. The district court
entered numerous orders granting and denying the parties' various
requests for attorney fees and costs, and Fatemeh did not move to
reconsider any of these orders.
In April 2017, Parviz filed a motion for summary judgment
related to the parties' marriage in Iran and again requested attorney fees
and costs. Fatemeh opposed the motion and also sought attorney fees and
costs in connection with that motion under EDCR 7.60(b) and NRS
18.010(2)(b), on grounds that Parviz had multiplied the proceedings in a
manner that increased costs unreasonably and vexatiously and because his
motion was maintained without reasonable grounds or to harass. Because
there were genuine disputes of material fact, the district court denied
Parviz's motion for surnmary judgment but scheduled an evidentiary
hearing to resolve three discrete issues. The court deferred the parties'
pending motions for attorney fees and costs until that time.
The pretrial evidentiary hearing was held over a three-day

period in October 2017, May 2018, and June 2018. Following this hearing,
the district court entered a minute order in November 2018, ruling in favor
of Fatemeh on all three issues, providing that the parties "would bear their
own fees and costs," and directing Fatemeh to prepare the order. A year

the initiation of divorce proceedings, Parviz filed for Chapter
2 After

13 bankruptcy. Prior to the entry of the divorce decree, Parviz's debt was
reduced from approximately $187,000 to $65,000, and Parviz was making
monthly payments towards the principal amount.
COURT OF APPEALS
OF
NEVADA

3
(0 3 1947H
later, Fatemeh still had not prepared the order. So, in November 2019,
Parviz prepared an order that was filed by the district court. After Parviz
served Fatemeh with a copy of the order, Fatemeh filed a notice of entry of
order in December 2019. On the same day, she moved for reconsideration
of that order.
In her motion for reconsideration, Fatemeh argued she was
entitled to all attorney fees from the inception of the case through the
evidentiary hearing—not just the fees that related to the summary
judgment motion and evidentiary hearing that the district court had denied
in its December 2019 order. In the motion, Fatemeh also requested
reconsideration as to expert fees, but she did not seek reconsideration as to
costs. The district court granted Fatemeh's motion for reconsideration and
set the case for tria1.3
A divorce trial was held over three days in June, July, and
August 2020 to address the parties' remaining contested issues. During the
trial, Faterneh alleged that Parviz had wasted a substantial amount of
community funds and presented an expert forensic accountant who
identified potential waste. Analyzing financial transactions from 2011 to
2017, Fatemeh's expert determined that a variety of "unknown or
unsupported transactions" constituted potential marital waste in the
aggregate amount of $208,294. Fatemeh posited that these transactions
were waste because she had no knowledge of them and did not consent to
the depletion of the community funds. When asked about the expenditures
at trial, Parviz testified that the funds were used for marital expenses

Although the district court granted Fatemeh's motion for
3
reconsideration, it did not enter an order formally awarding Fatemeh her
requested fees until the entry of the divorce decree.
COURT OF APPEALS
OF
NEVADA

4
19478 Plafiv
including education, travel, jewelry for Fatemeh, fertility treatments, home
improvements, a down payment on a new home, and cash given directly to
Faterneh.
Fatemeh and Parviz each also testified about their respective

employment status. Fatemeh was previously employed full time as an

ultrasound technician, but she suffered injuries during a car accident in
2018. Following her accident, Fatemeh initially worked part time, but in
2019 she ceased employment completely due to her physical limitations.

Parviz was employed full time as a scientist with the Las Vegas Valley
Water District. During the trial, however, Parviz testified that he had

several health problems and that he was currently using his accrued sick
days pending his request for FMLA leave.
At the conclusion of the trial, the district court asked both
parties to submit proposed orders. They complied, and in February 2021,
the district court entered Faterneh's 61-page proposed findings of fact,
conclusions of law, and decree of divorce in its entirety, without
modification. Although the decree noted that neither party had significant
assets, the decree awarded Fatemeh $5,000 per month in alimony for ten
years, $176,976.99 in attorney fees and costs from the inception of the case
through the pretrial evidentiary hearing, and $19,565 in expert fees. The
decree ordered Parviz to reimburse Fatemeh $59,000 for monies she used
"to fund the litigation." The decree also made an unequal distribution of
community property and debt, requiring Parviz to reimburse Fatemeh for
half of the wasted community assets in the amount of $100,357.50 and
ordering Parviz to pay half of Fatemeh's credit card debt while Parviz
remained solely responsible for his bankruptcy debt. In total, the decree
required Parviz to pay Fatemeh more than $400,000. In addition, the

COURT OF APPEALS
OF
NEVADA
5
(0) 1447F1
decree ordered Parviz to sell the marital home. Lastly, the decree provided
that any unpaid balance would be reduced to judgment and accrue interest.
After entry of the decree, both Fatemeh and Parviz filed
motions to amend the decree. The district court denied Parviz's motion but
granted Fatemeh's motion in part and ordered that Fatemeh would also
receive nearly the entire value of Parviz's retirement account, which the
decree had previously split evenly between them, to satisfy the financial
obligations that remained after the sale of the marital home.4 Parviz timely
appealed.
ANALYSIS
In this appeal, we address the following issues: (1) whether the
district court abused its discretion when it adopted Fatemeh's proposed
decree verbatim in its entirety; (2) whether the district court abused its
discretion when it found marital waste because Parviz was unable to
account for unknown transactions by clear and convincing evidence;
(3)whether the district court adequately considered the alimony factors in
NRS 125.150(9), including Fatemeh's need for alimony and Parviz's ability
to pay, when it awarded Fatemeh alimony of $5,000 per month for ten years;
(4) whether the district court abused its discretion when it awarded
Fatemeh attorney fees from the inception of litigation through the
evidentiary hearing, $59,000 to reimburse her for money she borrowed to
fund the litigation, and expert fees; and (5) whether the district court
abused its discretion in connection with other miscellaneous financial
awards and allocations in the divorce decree.

4 0n appeal, Parviz does not challenge any of the district court's
rulings on the parties' post-decree motions, including the court's
redistribution of his retirement account.
COURT OF APPEALS
OF
NEVADA
6
10) 19471.1 .6161*
This court reviews a district court's alimony determinations,

attorney fee awards, and disposition of community property, including any
underlying marital waste determinations, for an abuse of discretion. Kogod
v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019). This court

reviews the district court's factual findings deferentially and will not set
them aside unless they are clearly erroneous or unsupported by substantial
evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009).
Substantial evidence "is evidence that a reasonable person may accept as
adequate to sustain a judgment." Ellis v. Carucci, 123 Nev. 145, 149, 161
P.3d 239, 242 (2007).
"Although this court reviews a district court's discretionary
determinations deferentially, deference is not owed to legal error" or
findings so conclusory that they mask legal error. Davis v. Ewalefo, 131
Nev. 445, 450, 352 P.3d 1139, 1142 (2015). The district court "must have
reached its conclusions for the appropriate reasons," Ellis, 123 Nev. at 149,
161 P.3d at 241-42, and if there are no facts explaining how the district
court reached its conclusions, this court cannot determine whether those
conclusions were made for appropriate reasons, see Davis, 131 Nev. at 451-
52, 352 P.3d at 1143 (explaining that: because the district court did not tie
its factual findings to its conclusion, the appellate court "cannot say with
assurance that the ... determination was made for appropriate legal
reasons").
Adopting Faterneh's proposed decree verbatim was not, by itself, an abuse of
discretion
Parviz initially contends that the divorce decree must be set
aside because the district court accepted Fatemeh's proposed decree in its
entirety, without making any modifications. Parviz argues that, by doing
so, the district court abdicated its judicial role and, necessarily, abused its
COURT OF APPEALS
OF
NEVADA
7
(0) 1Q4711
discretion. We disagree that a district court abuses its discretion simply by
entering an order proposed by one of t.he litigants without modification;
however, we caution courts and practitioners alike that there are risks
inherent in this practice, and scrutiny should be given to the contents of any
proposed orders before entering them. See Fed. Nat'l Mortg. Ass'n v.

Westland Liberty Vill., LLC, 138 Nev., Adv. Op. 57, 515 P.3d 329, 337 n.6
(2022) (urging district courts "to scrutinize [proposed] draft orders, being
mindful that they assume responsibility for those findings and attendant
rulings upon entry of the order").
At the outset, we note that in the Eighth Judicial District
Court's Family Division, the court rules expressly contemplate that parties
may submit proposed orders for consideration and adoption by the court.
See EDCR 5.515 ("Proposed orders may include such findings, conclusions,
and orders as the submitting party believes relevant to each point in dispute
in the proceedings."). Moreover, the Nevada Supreme Court I1ias recognized
that a district court may properly adopt a party's proposed order, provided
that the opposing party is apprised of the order and given an opportunity to
respond. See Byford v. State, 123 Nev. 67, 69, 156 P.3d 691, 692 (2007)
(discussing the predecessor to Nevada Code of Judicial Conduct (NCJC)
Cannon 2, Rule 2.6(a), which was substantively identical to the present
rule).5

5Although NCJC Cannon 2, Rule 2.6(a) does not include the
commentary from the former version of the rule that was discussed in
Byford, the decision's rationale remains equally applicable today given that
the current rule still requires the district court to "accord to every person
who has a legal interest in a proceeding, or that person's lawyer, the right
to be heard according to the law."
COURT OF APPEALS
OF
NEVADA
8
(l)) 1947H c
Parviz does not argue on appeal that he did not have an
opportunity to respond to Fatemeh's proposed decree prior to the district
court's adoption. In fact, the record reflects that both parties timely emailed
their proposed decrees to the court and copied opposing counsel on those
emails, at which point either party could have raised objections thereto.
Further, after entry of the decree, Parviz had an opportunity, under NRCP
52(b), to request amendments to the decree. See NRCP 52(b) ("On a party's
motion...the court may amend its findings—or make additional

findings—and may amend the judgment accordingly."); cf. Byford, 123 Nev.
at 70, 156 P.3d at 693. The availability of this procedure offers an additional
level of protection to litigants in the event that they believe the district
court's findings and conclusions are improper. In this case, Parviz availed
himself of that opportunity by filing a motion to amend the decree.
Nevertheless, Parviz contends that the district court erred by
adopting Fatemeh's proposed order verbatim based on several cases that
have criticized the practice of district courts adopting litigant-drafted
orders. See, e.g., Anderson u. Bessemer City, 470 U.S. 564, 572 (1985)
(stating that "[w]e, too, have criticized courts for their verbatim adoption of
findings of fact prepared by prevailing parties" and noting "the potential for
overreaching and exaggeration on the part of attorneys preparing findings
of fact"); In re Colony Square Co., 819 F.2d 272, 275 (11th Cir. 1987) ("The
dangers inherent in litigants ghostwriting opinions are readily apparent");
Chudasama u. Mazda Motor Corp., 123 F.3d 1353, 1373 n.46 (11th Cir.
1997) (explaining that "[w]e have consistently frowned upon the practice of
delegating the tasks of drafting important opinions to litigants," as the
,
`practice harms the quality of the district court's deliberative process");
Harris v. Davis, 88 N.E.3d 1081, 1086 n.2 (Ind. Ct. App. 2017) (stating that

COURT OF APPEALS
OF
NEVADA
9
((J) 1947B algi*
"[w]hen a trial court adopts verbatim a party's proposed findings and
conclusions," it "weakens our confidence as an appellate court that the
findings are the result of considered judgment by the trial court" (internal
quotation marks omitted)).
Although these cases strongly discourage the practice of
adopting litigant-drafted orders verbatim, they do not support Parviz's
argument that the practice is itself an independent basis for reversal. For
instance, in Anderson, the United States Supreme Court explained that
l<even when the trial judge adopts proposed findings verbatim, the findings

are those of the court and may be reversed only if clearly erroneous." 470
U.S. at 572. The Supreme Court declined to subject the district court's
findings to a more stringent appellate review than called for by the
applicable rules. Id. at 572-73. Likewise, in In re Colony Square, the United
States Court of Appeals for the Eleventh Circuit explained that "[t]he fact
that a judge allowed a litigant to draft the court's orders without notice to
the opposing party" did not automatically invalidate those orders absent a
finding that the opposing party was denied a meaningful opportunity to be
heard. 819 F.2d at 276-77. In Saylor v. State, also cited by Parviz, the
Indiana Supreme Court concluded that "although we do not
encourage ... judges to adopt wholesale the findings and conclusions of
eit.her party, we decline to find bias solely on that basis. The critical inquiry
is whether the findings adopted by the court are clearly erroneous." 765
N.E.2d 535, 565 (Ind. 2002), reu'd on reh'g on other grounds, 808 N.E.2d 646
(Ind. 2004); .see also Harris, 88 N.E.3d at 1086 n.2 (stating that when a trial
court adopts a party's proposed order without modification, "it does not alter
our standard of review"); Chudasama, 123 F.3d at 1373 n.46 (recognizing
"that the district court's adoption of [a party's] draft orders nearly verbatim

COURT OF APPEALS
OF
NEVADA
10
(0) (947B
does not affect our standard of review" and also "does not automatically
create an appearance of impropriety that would require the district court
judge to recuse" (internal quotation marks omitted)).
Caselaw from the Nevada Supreme Court also undermines
Parviz's argument. In Foley v. Morse & Mowbray, the appellant made a
similar argument challenging a district court's adoption of a proposed order
"without any changes." 109 Nev. 116, 123, 848 P.2d 519, 524 (1993). The
supreme court evaluated the substance of the district court's order for
potential error. The court identified errors as to certain findings of fact and
conclusions of law because those particular findings were not supported by
the record, but the court approved the remainder of the district court's
order. Id. at 124, 848 P.2d at 524. Thus, in analyzing the contents of the
district court's order, the supreme court implicitly rejected the appellant's
claim that adopting the respondent's proposed order "without any changes"
was itself error. Icl. at 123-24, 848 P.2d at 524.
As noted above, we recognize that numerous authorities have
criticized, discouraged, and condemned the practice of courts adopting
verbatim orders and findings of fact prepared by prevailing parties. See,
e.g.. Anderson, 470 U.S. at 571. We, too, share these concerns. See Fed.
Nat'l Mortg. Ass'n, 515 P.3d at 337 n.6. Nonetheless, we also recognize that
asking litigants to submit proposed orders is a customary practice that is
often necessary for the timely administration of justice. See, e.g., Prowell v.
State, 741 N.E.2d 704, 708-09 (Ind. 2001) (providing that courts may adopt
a proposed party's findings because "trial courts of this state are faced with
an enormous volume of cases" and "the need to keep the docket moving is
properly a high priority of our trial bench"). Further, NRCP 52(b) protects
parties by providing the opportunity to object to and amend such findings,

COURT OF APPEALS
OF
NEVADA
11
(0) 1947B
and Parviz did in fact avail himself of that opportunity. See Foley, 109 Nev.
at 123-24, 848 P.2d at 524 (citing Foster v. Bank of Am., 77 Nev. 365, 365
P.2d 313 (1961)). Therefore, although a district court's verbatim adoption
of a litigant's entire proposed order is not recommended as sound judicial
practice, we cannot conclude under these circumstances that doing so is, in
and of itself, an abuse of discretion. Rather, as in Foley, we will analyze the
content and substance of the proposed order that was adopted by the district
court and decide whether any particular findings of fact and conclusions of
law were unsupported by substantial evidence or legally erroneous. Ogawa,
125 Nev. at 668, 672, 221 P.3d at 704, 707.
Although the district court did not abuse its discretion by
adopting Fatemeh's proposed decree verbatim, when it did so, the court and
the practitioners assumed the risk that any legal or factual errors contained
in that decree might be reversible. Fed. Nat'l Mortg. Ass'n, 515 P.3d at 337
n.6. And in this case, Fatemeh's proposed decree contained several legal
and factual deficiencies, particularly in relation to the monetary awards and
allocations, which we address in turn.
The district court abused its discretion in finding marital waste
In its decree, the district court made an unequal disposition of
community property in favor of Fatemeh in the amount of $100,357.50 to
account for marital waste. Parviz challenges this disposition on multiple
grounds. He alleges the district court abused its discretion when it failed
to distinguish between waste and discretionary expenditures, applied an
erroneous legal standard that negligent expenditures of community funds
constituted waste, and imposed an improper burden on him to prove that
all expenditures made during the marriage without Fatemeh's knowledge
were not waste.

COURT OF APPEALS
OF
NEVADA
12
(()) 1947R
A district court must make an equal disposition of community
property in a divorce unless there is a "compelling reason" to make an
unequal disposition. NRS 125.150(1)(b); see also Kogod, 135 Nev. at 75, 439
P.3d at 406. "Dissipation," also known as "waste," can constitute a

compelling reason for an unequal disposition of community property.
Kogod, 135 Nev. at 75, 439 P.3d at 406; see also Lofgren v. Lofgren, 112 Nev.
1282, 1283, 926 P.2d 296, 297 (1996) ("[I]f community property is lost,
expended or destroyed through the intentional misconduct of one spouse,
the court may consider such misconduct as a compelling reason for making
an unequal disposition of community property and may appropriately
augment the other spouse's share of the remaining community property.").
"Generally, the dissipation [or waste] which a court may consider refers to
one spouse's use of marital property for a selfish purpose unrelated to the
marriage in contemplation of divorce or at a time when the marriage is in
serious jeopardy or is undergoing an irretrievable breakdown." Kogod, 135
Nev. at •75-76, 439 P.3d at 406-07 (quoting 24 Am. Jur. 2d Divorce and
Separation § 524 (2018)); see also Dissipation, Black's Law Dictionary (11.th
ed. 2019) (defining "dissipation" as "[t]he use of an asset for an illegal or
inequitable purpose, such as a spouse's use of community property for
personal benefit when a divorce is imminent").
In Kogod, the supreme court analyzed various types of
expenditures to determine if they constituted dissipation or waste. Initially,
the court pointed out that when community property is spent on
extramarital affairs, those expenditures will almost always constitute
waste. Kogod, 135 Nev. at 76, 439 P.3d at 407. Such expenditures are
waste, regardless of when they occur, because the act of engaging in an
extramarital affair is inherently inimical to the marital relationship. As a

COURT OF APPEALS
OF
NEVADA

13
((I) 1947B
result, Kogod upheld an unequal disposition of community property in the
amount that a husband spent on extramarital affairs throughout the
marriage Id.
ln contrast, when community property is spent on gifts to
family members, such expenditures do not necessarily constitute waste
because supporting one's family does not inherently undermine the marital
relationship. Whether gifts to family members constitute waste ultimately
depends on the timing and circumstances of those gifts. In Kogod, the

supreme court explained that "[a]bsent a specific injunction, a gift to a
family member is not [waste] if there is an established pattern or history of
giving such gifts to family members during the marriage." Id. at 77, 439
P.3d at 407. On the other hand, a gift to a family member could constitute
waste if there was "no previous history of gift giving or the amount of the
gift during the divorce [was] substantially greater than past gifts." Id. at
77, 439 P.3d at 408. Accordingly, the supreme court agreed with the district
court that a husband's "long-standing and regular" expenditures on his
family were not waste because he "routinely gave money to his family
throughout the marriage, and often did so without consulting" his wife. Id.
In contrast, the supreme court also agreed that the husband's post-
separation payments that occurred after a joint preliminary injunction,
which were neither regular nor routine, were properly characterized as
waste. Id.
Kogod also recognized that waste committed after separation or
during an irreconcilable breakdown of the marriage is distinguishable from
overconsumption during the marriage. Id. at 78-79, 439 P.3d at 408-09; see
Putterrnan v. Putterrnan, 113 Nev. 606, 609, 939 P.2d 1047, 1048 (1997) ("It
should be kept in mind that the secreting or wasting of community assets

COURT OF APPEALS
OF
NEVADA

14
(01 19471i •
while divorce proceedings are pending is to be distinguished from
undercontributing or overconsuming of community assets during the
marriage."). Thus, the court instructed district courts to "differentiate

between ordinary consumption for higher-income earners . . . which is not
necessarily dissipation, and misappropriation of community assets solely
for personal gain." Kogod, 135 Nev. at 78, 439 P.3d at 408.
Unlike the wasted funds spent on the husband's extramarital

affairs, which were inherently adverse to the marriage, Kogod concluded

that the district court erroneously found waste when the husband could not
prove that unexplained expenditures affirmatively served a marital
purpose. Id. at 78-79, 439 P.3d at 408-09. After the wife's forensic expert
examined the parties' finances and identified millions of dollars in unknown
transactions, or "potential community waste," the district court required the
husband to account for each of the transactions and demonstrate that those
transactions were not waste. Id. at 78, 439 P.3d at 408. When the husband
was unable to do so, the district court made an unequal disposition of
community property to the wife, in the amount of more than $2 million, to
account for the potential community waste. Id. at 78-79, 439 P.3d at 408-
09.
The supreme court deemed this to be error and reversed the
district court's unequal disposition of community property that related to
this purported waste. Id. In doing so, the supreme court noted that the
district court did not require the husband "to account for these expenditures
because [his wife] raised a reasonable inference that the transactions
furthered a purpose inimical to the marriage, that he rnade them to
diminish [his wife's] community share, or even that they were unusually
large withdrawals from community accounts." Id. at 78, 439 P.3d at 408.

COURT OF APPEALS
OF
NEVADA
15
(01 1947H
Rather, the district court required the husband to prove that the
expenditures were not waste "because they exceeded [the husband's] self-
described monthly expenses" and he failed to provide his own forensic
accounting after promising to do so. Id. Thus, the supreme court concluded
that the husband's inability to account for unknown expenses did not
demonstrate a compelling reason for an unequal disposition of community
assets. Id. at 409, 439 P.3d at 79.
Just like in Kogod, in this case Fatemeh presented an expert

forensic accountant at trial who identified potential marital waste in the
form of unknown transactions. Although Faterneh did not file for divorce
until June 2016, her expert analyzed financial transactions from 2011 to
2017 and determined that a variety of "unknown or unsupported
transactions" constituted potential waste in the amount of $208,294.6 At

trial, Fatemeh testified that she believed Parviz used community funds to
purchase a condominium in Iran for his mother, but the district court did
not make any findings as to whether he, in fact, did so, or whether any
particular transaction reflected such a purchase. Rather, the district court
simply listed in the decree four categories of potential waste identified by
Fatemeh's expert, including (1) "[u]nknown checks" in the amount of
$53,438 between April 2011 and July 2017; (2) "[c]ash" in the amount of
$120,865 between October 2013 and July 2016; (3) a transfer to "someone
by the name of 'Yousfi" in the amount of $10,000 in December 2013; and
(4) "[u]nknown withdrawals" of cash in the amount of $16,412 from 2010
through 2014. The district court determined that Faterneh demonstrated a
prima facie case for "breach of fiduciary duty in the form of community

6The decree identified waste in the amount of $200,715. The reason
for the discrepancy between the expert report and the decree is unclear.
COURT OF APPEALS
OF
NEVADA
16
(0) 194713
waste," ostensibly because Faterneh did not know how these funds were
spent and therefore did not consent to the expenditures. And the court
determined that Parviz "failed to meet his burden of proof by the 'clear and
convincing' standard to explain the waste identified by Fatemeh and he
failed to provide any independent accounting of that waste."
When asked about the expenditures at trial, Parviz testified
that the funds were used for various marital expenses. However, the
district court found that Parviz's testimony "d[id] not explain" the waste
and concluded that, because he failed to account for the missing funds, all
of the unknown expenditures constituted marital waste. Ultimately, the
court ordered Parviz to reimburse Fatemeh for one half of this "waste" by
making an unequal disposition of community property in Faterneh's favor
in the amount of $100,357.50. This was an abuse of discretion.
Because the district court's waste analysis included
expenditures that were made during the six-year period before Fatemeh
filed for divorce, the parties' briefing addresses the theoretical issue of
whether waste can occur at any time during a marriage, or whether waste
can occur only after a marriage has undergone an irretrievable breakdown.
Kogod did not squarely address that question, and we need not resolve it
here, because we conclude that regardless of when the alleged waste may
have occurred, the district court made the very same error that the supreme
court deemed reversible in Kogod—"requiring [Parviz] to explain everyday
expenditures over the course of several years, including before this divorce

COURT OF APPEALS
OF
NEVADA

crAR*3
17
01 1947H
action began, and finding [waste] when he failed in this task." 135 Nev. at
78, 439 P.3d at 408.7
Like in Kogod, the district court erred by placing an evidentiary

burden on Parviz to demonstrate the absence of waste by clear and
convincing evidence8 without first requiring Fatemeh to raise a reasonable
inference that any transactions were, in fact, waste. The district court
appears to have found that Fatemeh established a prima facie showing of
waste simply because she was unaware of the expenditures at the time they
were made and could not have consented to them, and thus Parviz had a
fiduciary duty to account for all of them. To support this conclusion, the
district court stated that "the negligent or willful dissipation of community
funds by one of the spouses, or the surreptitious and personal use of

7 Insofar as Fatemeh argues on appeal that we should reach a decision

contrary to Kogod, this court cannot overrule Nevada Supreme Court
precedent. See Hubbard u. United States, 514 U.S. 695, 720 (1995)
(Rehnquist, C.J., dissenting) (noting that stare decisis "applies a fortiori to
enjoin lower courts to follow the decision of a higher court"); People v.
Solórzano, 63 Cal. Rptr. 3d 659, 664 (2007) ("The Court of Appeal must
follow, and has no authority to overrule, the decisions of the [state supreme
court]." (internal quotation marks omitted)).

8As we explained in Monahan v. Hogan, 138 Nev. 58, 69, 507 P.3d
588, 597 (Ct. App. 2022), "preponderance of the evidence is still the default
evidentiary standard in family law absent clear legislative intent to the
contrary." (Citation omitted.) Fatemeh does not cogently argue why the
fiduciary relationship between husband and wife required Parviz to account
for all "unknown" expenditures by clear and convincing evidence when the
court only needed to find waste by a preponderance of the evidence. See
Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280,
1288 n.38 (2006) (declining to consider issues that are not supported by
cogent argument). We note that when Faterneh's counsel raised a virtually
identical argument in briefing to the supreme court in Kogod, the court
declined to adopt a clear and convincing standard in that case.
COURT OF APPEALS
OF
NEVADA
18
19479 ADD
community property or funds without the other [spouse's] knowledge, is
waste." Yet, this definition of waste is much broader than that adopted by
the supreme court in Kogod, 135 Nev. at 75-76, 439 P.3d at 406-07
(generally defining waste as a "spouse's use of marital property for a selfish
purpose unrelated to the marriage in contemplation of divorce or at a time
when the marriage is in serious jeopardy or is undergoing an irretrievable
breakdown" (quoting 24 Am. Jur. 2d Divorce and Separation§ 524 (2018))).
In this case, the district court's overly expansive definition of
waste failed to account for Kogod's holding that a husband's "relatively long-
standing and regular" expenditures to family members, which were often
made without consulting his wife, did not constitute waste. Id. at 77, 439
P.3d at 408. Likewise, the district court's overly broad conception of waste
failed to account for the distinction between waste and a spouse's
overconsumption during a marriage, of which the other spouse might not be
aware. Id. at 78-79, 439 P.3d at 408-09; see also Putterrnan, 113 Nev. at
609, 939 P.2d at 1048-49 ("Almost all marriages involve some disproportion
in contribution or consumption of community property. Such retrospective
considerations are not and should not be relevant to community property
allocation and do not present 'compelling reasons' for an unequal
disposition . . . ."). In addition, the district court failed to recognize that
consent to make a gift of community property may also be implied by the
circumstances. See NRS 123.230.
We note that family-related expenditures, even when not
disclosed or agreed to, are not necessarily inimical to a harmonious marital
relationship when viewed in the context of the marital estate. See, e.g.,
Kogod, 135 Nev. at 77, 439 P.3d at 407-08. Arguably, upon entering into a
marriage, rnost couples impliedly consent to provide reasonable support for

COURT OF APPEALS
OF
NEVADA
19
(L)( I 947B
one another's immediate family. cf. NRS 123.230 ("Neither spouse may
make a gift of community property without the express or implied consent
of the other."). Although married couples may disagree about money spent
on family members, such gifts standing alone should not be deemed
dissipation or waste without examining the context of the expenditures,
including consideration of the overall marital estate and implied consent
under the facts and circumstances of the case.° The existence of implied
consent is a question of fact for the district court and should be considered
along with other factors, such as the size of the gift (higher value may draw
higher scrutiny), the regularity of the gift (routine or long-standing gifts are
generally not waste), the timing of the gift (the closer to separation or
irreconcilable breakdown, the greater the scrutiny), the purpose of the gift,
and how close the recipient of the gift is to the parties.1°

°To the extent that the district court found that Parviz wasted
community assets by allowing his brother and his brother's wife to live with
him without providing any financial contribution after the entry of the Joint
Preliminary Injunction (JPI), we conclude that this finding was. clearly
erroneous. The JPI in this case did not prohibit Parviz from allowing family
members to stay with him without paying room and board: therefore, he did
not violate it. See also EDCR 5.703(a) (explaining that a JPI enjoins the
parties from "Nransferring, encumbering, concealing, selling, or otherwise
disposing of any of the joint, common, or community property of the
parties . . . except in the usual course of conduct or for the necessities of
life").
ioIn Kogod, the supreme court affirmed the district court's finding of
waste when a husband gave his father two "non-routine" gifts of $3,600,
along with a $50,000 "political carnpaign contribution," after separating
from his wife. 135 Nev. at 77, 439 P.3d at 408. The supreme court
considered the size, irregular nature, timing, and purpose of these gifts,
along with the identity of the recipient, in assessing waste. Id. In this case,
the district court similarly found that Parviz wasted funds spent on his
adult son after the JPI was entered, but failed to evaluate the size,
COURT OF APPEALS
OF
NEVADA
20
C), 1947B
Whether a particular expenditure by one spouse constitutes
waste does not turn on whether the other spouse had knowledge of the
expenditure at the time it was made; rather, waste generally requires a
finding by the court that the expenditure in question was for a selfish
purpose that is "unrelated to the marriage in contemplation of divorce or at
a time when the marriage is in serious jeopardy or is undergoing an
irretrievable breakdown." Kogod, 135 Nev. at 75-76, 439 P.3d at 406-07
(quoting 24 Am. Jur. 2d Divorce and Separation § 524 (2018)). Thus, in
Kogod, the supreme court suggested that it might be permissible to shift the
burden of proving the absence of waste if one spouse could demonstrate that
the "transactions furthered a purpose inimical to the marriage, that [the
other spouse] made them to diminish [that spouse's] community share, or
even that they were unusually large withdrawals from community
accounts." Id. at 78, 439 P.3d at 408. But here, the district court made no
such finding as to any of the transactions at issue before improperly shifting
the burden of proof to Parviz.
The decree in this case identified only one specific transaction
that allegedly constituted waste," while otherwise finding that large

regularity, or purpose of the gifts in its decree. Although gifts given to
family after a JPI may be subject to greater scrutiny, under Kogod, the
district court should still consider these other factors when determining if
those funds were wasted.

"Although the court identified a December 23, 2013, transfer of
$10,000 to "someone by the name of'Yousfr as waste, the only explanation
given by the court as to why this transfer constituted waste was that
"Fatemeh did not consent to the transfer and had no knowledge of the
transfer" and "Parviz did not know who Yousfi was and what the transfer
was for." The purpose of this expenditure was never established and should
be reevaluated on remand.
COURT OF APPEALS
OF
NEVADA
21
(0) I947R
groupings of unknown checks and cash withdrawals over a seven-year
period, in the aggregate, constituted waste simply because those

expenditures were unexplained. The district court's vague findings in this
case stand in stark contrast to the specific findings of waste in Lofgren,
where the district court identified discrete expenditures that constituted
financial misconduct because of both the timing of those expenditures (e.g.,
after the court issued a preliminary injunction in the parties' divorce action)
and the purpose of the expenditures (e.g., for a selfish purpose unrelated to
the marriage).12 Likewise, the district court's conclusion in this case that
groups of transactions, the majority of which occurred before Fatemeh filed
for divorce, must be waste simply because Parviz could not explain them is
distinguishable from the "specific and meticulous findings of fact" that
justified the waste finding in Putterman.' 3 Because the decree in this case
failed to indicate how any of the allegedly wasted funds were actually spent,

12In Lofgren, the district court found that a husband committed waste

when he violated the terms of a preliminary injunction in a divorce action
by transferring $100,000 of community funds to his father (although some
of the funds were later paid back), transferring $17,000 of community funds
for his own personal use, using $11,200 in community funds to improve his
personal house, using $10,000 of community funds to furnish his personal
house, transferring another $13,000 in community funds to his father, and
misappropriating $5,000 of community funds by paying his children
without court consent. 112 Nev. at 1284, 926 P.2d at 297-98.

'In Putterman, the district court awarded a wife a country club
membership and a portion of stock in a closely held corporation after
making specific findings that the husband charged several thousand dollars
on his wife's credit cards after the parties' separation, in addition to lying
about his income, and refusing to account for any finances over which he
had control. 113 Nev. at 609-10, 939 P.2d at 1049.
COURT OF APPEALS
OF
NEVADA
22
(th 1917B
it could not identify which transactions were made for an improper purpose
that would justify a finding of waste.
"[D]eference is not owed to legal error" or findings so conclusory

that they mask legal error. Davis, 131 Nev. at 450, 352 P.3d at 1142. Here,
because the decree improperly shifted the burden of proving the absence of
waste to Parviz, and because it also failed to identify any specific
transactions that constituted waste or make any findings as to the purpose
of those transactions, we are left to speculate whether the unequal
distribution to account for waste "was made for appropriate legal reasons."
Id. at 452, 352 P.3d at 1143. We thus reverse the district court's unequal
distribution of community property in the amount of $100,357.50 and
remand for a proper evaluation of waste consistent with this opinion.
The district court abused its di,scretion by failing to adequately analyze
alimony
Parviz next argues that the district court abused its discretion
when it awarded Faterneh alimony of $5,000 per month for ten years. He
contends that the decree failed to properly consider the factors under NRS
125.150(9) because the decree's analysis lacked "a rational nexus" between
those factors and the district court's decision and because the decree failed
to include adequate facts when addressing each factor.
"Alimony is financial support paid from one spouse to the other
whenever justice and equity require it." Rodriguez u. Rodriguez, 116 Nev.
993, 999, 13 P.3d 415, 419 (2000); see also NRS 125.150(1)(a) (providing that
the alimony award must be "just and equitable"). When determining if
alirriony is just and equitable, a district court must consider the 11 factors
listed in NRS 125.150(9). See generally Devries v. Gallio, 128 Nev. 706, 712,
290 P.3d 260, 264-65 (2012). These factors are:
(a) The financial condition of each spouse;
COURT OF APPEALS
OF
NEVADA

23
101 19471) .02P;n3
(b) The nature and value of the respective
property of each spouse;
(c) The contribution of each spouse to any
property held by the spouses pursuant to NRS
123.030;
(d) The duration of the marriage;
(e) The income, earning capacity, age and
health of each spouse;
(f) The standard of living during the
marriage;
(g) The career before the marriage of the
spouse who would receive the alimony;
(h) The existence of specialized education or
training or the level of marketable skills attained
by each spouse during the marriage;
(i) The contribution of either spouse as
homemaker:
(j) The award of property granted by the
court in the divorce, other than child support and
alimony, to the spouse who would receive the
alimony; and
(k) The physical and mental condition of each
party as it relates to the financial condition, health
and ability to work of that spouse.
NRS 125.150(9). Although the district court can consider other relevant
factors, it cannot consider "the marital fault or rnisconduct, or lack thereof,
of the spouses." Kogod, 135 Nev. at 67, 439 P.3d at 401.
Ahmony may be awarded "based on the receiving spouse's need
and the paying spouse's ability to pay." Id. at 68, 439 P.3d at 401. The
statutory factors relevant to a needs-based alimony award include NRS
125.150(9)(a), (b), (e), (j), and (k). Kogod, 135 Nev. at 69, 439 P.3d at 402.
Alternatively, alimony may "be awarded to compensate for economic loss as
the result of a marriage and subsequent divorce, particularly one spouse's
COURT OF APPEALS
OF
NEVADA
24
I Yj IQ4 7 tleSto
loss in standard of living or earning capacity." Id. at 70, 439 P.3d at 403.
The statutory factors relevant to an award designed to compensate for
economic loss include NRS 125.150(9)(d), (e), (f), (g), (h), and (i). Kogod, 135
Nev. at 71, 439 P.3d at 404.
In this case, the district court awarded Fatemeh alimony in the
amount of $5,000 per month for a period of ten years based on Fatemeh's
"need[]" and Parviz's "ability to pay." The court determined that Parviz's
net income was approximately $13,000 per month, while Fatemeh currently
does not have any income. Then, the court determined, "[u]pon a review of
Fatemah's FDF . . . she needs $5,000 per month in alimony" and "Parviz has
an ability to pay that amount."
Although the district court superficially addressed the factors
contained in NRS 125.150(9)(a)-(k) before reaching this conclusion, the
court's factual findings were incomplete, unsupported by substantial
evidence, and internally inconsistent, and they improperly referenced
misconduct by Parviz. Further, the court failed to connect its findings with
a determination that alimony was "just and equitable" as either a needs-
based award or as an award intended to compensate Fatemeh for economic
loss after a 20-year marriage due to a change in her standard of living.
Where factor (a) required the district court to consider each
spouse's financial condition, the court made no findings as to Parviz and
noted only that Fatemeh was "presently unemployed" and "actively looking
for employment despite being in severe pain from a recent car accident."
When evaluating factor (a), the court did not otherwise discuss the parties'
respective financial conditions, which would have "help[ed} the court
understand the spouses' financial needs and abilities to pay." Kogod, 135
Nev. at 69, 439 P.3d at 402.

COURT OF APPEALS
OF
NEVADA
25
1.01 I 947B
Where factor (b) required the district court to consider the
nature and value of each spouse's respective property, and factor (j) required
the district court to take into consideration the property that Fatemeh
would be awarded in the divorce, the court did not assign any monetary
values to the parties' property or explain how the court's division of that
property would impact either Fatemeh's need for alimony or Parviz's ability
to pay that amount.14 See id. at 72, 439 P.3d at 404 (requiring district courts
to consider whether the "value of the community property [a spouse]
received in the divorce obviated any basis for awarding alimonY").
When considering the income, earning capacity, age, and health
of each spouse under factor (e), the district court's findings are likewise
incomplete and, in addition, are unsupported by substantial evidence. The
court noted that Parviz was a scientist for the Las Vegas Valley Water
District whose income was publicly available on the Transparent Nevada
website. However, Parviz objected at trial when Fatemeh sought to
introduce a printout of Parviz's income from the Transparent Nevada
website, and that evidence was never admitted. Yet, the court erroneously
relied exclusively on this unadmitted evidence from Transparent Nevada to

"The decree failed to assign a consistent monetary value to the waste
finding, which was necessary in order to adequately consider how the
determination would impact Fatemeh's need for alimony or Parviz's ability
to pay. For example, the decree states. "Even if the Court finds that all of
the waste identified by Fatemeh is accurate, then perhaps Fatemeh will
receive around $200,000 for the waste issue." However, later in the same
decree, the court found waste in the amount of $100,357.50. In addition, we
note the decree was internally contradictory in several instances, and it
contained both "findings" that were speculative or argumentative in nature
as well as "conclusions" that were inconsistent with those findings. These
inconsistencies again demonstrate the dangers inherent in the district
court's wholesale adoption of litigant-drafted orders.
COURT OF APPEALS
OF
NEVADA

26
t()I 194713 AD.>
calculate Parviz's average income as $189,331 per year, or approximately
$13,000 per month. This was an abuse of discretion.15 See Burroughs Corp.
v. Century Steel, Inc., 99 Nev. 464, 470, 664 P.2d 354, 358 (1983) (holding
that a district court determination that was based upon an exhibit not
admitted into evidence was clearly erroneous).
Relatedly, when evaluating Parviz's ability to pay alimony, the
district court determined that Parviz had "grossly exaggerated his
expenses" but made no findings as to what his actual expenses were to
determine if $5,000 per month was an amount that Parviz could pay. The
court indicated that Parviz had "significant resources for the payment of
support to Fatemeh" due to the discharge of some of his debt in bankruptcy.
But the court also ordered Parviz to sell his home to compensate Fatemeh
for awards under the decree because it found that "the only cash available
is from the sale of the house." The court's acknowledgment that Parviz was
unable to compensate Fatemeh under the decree without selling his home
undermines its finding that he had "significant resources" to pay alimony.
When considering Parviz's age and health, in connection with
factors (e) and (k) as it related to his ability to work, the district court also
made insufficient findings. On the one hand, the court acknowledged
Parviz's testimony at trial that "his health is poor, and he has 'stress,
anxiety, high blood pressure and suicidal ideation' as a result of this

' 5Parviz does not specifically challenge the district court's reliance
upon this evidence; however, the error is apparent on the record, and we
may "take cognizance of plain error sua sponte." Crow-Spieker # 23 v.
Robert L. Helms Constr. & Dev. Co., 103 Nev. 1, 3 n.2, 731 P.2d 348, 350 n.2
(1987). In her answering brief, Fatemeh points out that "Parviz's 2015-2019
W-2s were admitted at Trial reflecting his historical income." The district
court should have looked to the adrnitted evidence when calculating Parviz's
income.
COURT OF APPEALS
OF
NEVADA
27
k0) 1947B
divorce." Yet, the court inexplicably concluded that Parviz "did not provide
any evidence of such allegations of his poor health." See In re DISH Network
Derivative Litig., 133 Nev. 438, 445 n.3, 401 P.3d 1081, 1089 n.3 (2017)
(noting that "evidence need not be in a particular format to qualify as
evidence— testimony is evidence whether it is given in court or a
deposition").'6 And while the court noted that Parviz was 59 years old, had
already worked at the Las Vegas Valley Water District for 25 years, and
was currently working, the court did not address Parviz's ability to continue
working for the 10-year period of the alimony award, especially when he
was nearing retirement age.
For Fatemeh, the district court did not rnake any findings as to
her earning capacity, but instead focused on her current lack of income after
finding that she was not, at present, "willfully unemployed." In passing,
the court noted that Fatemeh was previously employed as an ultrasound
technician, that she earned an average of $32,540 annually between 2017
and 2019, that she had been in an automobile accident in 2018, and that
she was actively looking for work. But the court did not consider Fatemeh's
likelihood of obtaining employment in the future, nor did it consider how

16We reject Parviz's argument that the district court's income
calculation was incorrect since he "lost his employment because of his poor
health." Although Parviz claims to have lost his employment, he did not
support this claim with any citation to the record. See NRAP 28(e)(1)
(requiring every assertion in briefs pertaining to matters in the record to be
supported by a cite to the appendix where the matter relied upon is to be
found). Moreover, based on our review of the record, it does not appear that
Parviz presented the district court with any evidence that he lost his
employment prior to entry of the divorce decree; thus, the district court
cannot have erred by declining to consider this issue at the time the court
entered the decree. Parviz had applied for Family Medical Leave, but it is
unclear what effect, if any, this had on his earnings.
COURT OF APPEALS
OF
NEVADA

28
(0) 1947H
much she might be able to earn under circumstances where she was actively
looking for work.
The district court appears to have determined that because
Fatemeh was not willfully unemployed, it did not need to consider her
earning capacity when calculating alimony but, instead, could look only to
her actual income. Fatemeh takes a similar position on appeal, when she
asserts that "Mlle district court did not impute income to Fatemeh because
it correctly found that Fatemeh was not willfully unemployed." But
regardless of whether Fatemeh was willfully unemployed, the district court
was still required to consider her earning capacity when evaluating an
award of alimony. See NRS 125.150(9)(e) (requiring consideration of the
"earning capacity" of "each spouse"); see also Earning Capacity, Black's Law
Dictionary (11th ed. 2019) ("A person's ability or power to earn money, given
the person's talent, skills, training, and experience.").
The district court did not consider Fatemeh's ability to earn
money in light of her talent, skills, training, and experience. Instead, the
court examined Fatemeh's declared monthly expenses, determined that she
currently does not have any income, and summarily concluded she had a
financial need for ten years of alimony payments of $5,000 per month to
cover those expenses. But by failing to consider Fatemeh's own earning
capacity, the court could not properly evaluate her ongoing need for alimony
in relation to Parviz's ability to pay."

"To the extent Fatemeh argues on appeal t.hat a $5,000 per month
award of alimony was necessary to compensate her for economic losses
caused by the dissolution of their 20-year marriage, we note that the district
court improperly considered misconduct by Parviz as evidence of hêr
economic losses. Initially, when evaluating the nature and value of
Fatemeh's property under factor (b), the court commented that "Fatemeh
COURT OF APPEALS
OF
NEVADA
29
()} 1947H
When "the trial court does not indicate in its judgment or decree
that it gave adequate consideration" to the appropriate alimony factors,
"this [c]ourt shall remand for reconsideration of the issue." Devries, 128
Nev. at 712, 290 P.3d at 264 (alteration in original) (quoting Forrest v.

Forrest, 99 Nev. 602, 606, 668 P.2d 275, 278 (1983)). Even though the

district court superficially addressed the 11 factors contained in NRS
125.150(9), it was not enough for the court to simply process this case
through the list of statutory factors and announce its ruling. The court's
factual findings had to be supported by substantial evidence, and the court
needed to explain why those findings supported its alimony award in both

has significant debt that she had to incur as a result of Parviz's
unreasonable positions, all of which were denied, and his filing of the
bankruptcy proceedings which further delayed the case." When analyzing
Fatemeh's income and employment under factor (e), the court commented
that "Fatemeh has borrowed significant funds to meet her basic needs, and
to pay counsel to combat the litany of motions and other proceedings
brought by Parviz in bad faith. While Parviz seeks to avoid responsibility
for his actions through bankruptcy, Fatemeh should not have to do the
same." Finally, when analyzing Fatemeh's contributions as a homemaker
under factor (i), the court chastised Parviz for "fail[ing] to acknowledge
Fatemeh's contributions toward their marriage" and for "vehemently
object[ing] to Fatemeh going to Iran in December 2014 and February 2016
to visit her father when he was sick and in a coma."

Although the court could properly award attorney fees and costs to
sanction Parviz for needlessly multiplying the proceedings, it was error for
the district court to rely on his alleged misconduct during the divorce as
justification for awarding alimony. See Rodriguez, 116 Nev. at 998, 13 P.3d
at 418 ("[W]hen considering an award of alimony, the court may not
consider either party's misconduct or fault."). On remand, the district court
should instead consider the economic loss factors set forth in NRS
125.150(9)(d), (e), (f), (g), (h), and (i) when evaluating alirnony, including the
length of the marriage, the parties' standard of living, and Fatemeh's
contributions as a homemaker.
COURT OF APPEALS
OF
NEVADA
30
(0) 19476 463.
amount and duration. Because the district court abused its discretion in
evaluating alimony in this case, we reverse the district court's alimony
award and remand for a proper determination of alimony. See Devries, 128
Nev. at 711-12, 290 P.3d at 264.
The district court abused its discretion when it awarded Fatemeh all
attorney fees and costs from the inception of litigation, an additional $59,000
that she borrowed to fund the litigation, and $7,450 for translation services
Parviz contends that several of the decree's other financial
awards are legally improper or not based on substantial evidence, including
an award of $176,976.99 representing all of Fatemeh's attorney fees and
costs from the inception of the case in June 2016 through a pretrial
evidentiary hearing, an award of $59,000 to reimburse Fatemeh for money
she borrowed to pay for her litigation fees, and an award of $19,565 for
expert witness and translator fees.
Parviz first challenges the district court's award granting
Fatemeh all of her attorney fees and costs through the pretrial evidentiary
hearing. This award was entered in response to Fatemeh's motion for
reconsideration of the district court's December 2019 order that the parties
were to bear their own fees and costs in connection with Parviz's failed
motion for summary judgment and the subsequent evidentiary hearing.
However, when the district court granted Fatemeh's motion for
reconsideration, it improperly awarded Fatemeh attorney fees and costs
that had been the subject of prior motions that had already been resolved
on the merits and were never challenged. In addition, the court awarded
costs even though Fatemeh's motion for reconsideration only requested
attorney fees and expert witness fees. While the court could permissibly
reconsider its decision Pot to award attorney fees in connection with the
summary judgment motion and evidentiary hearing, any additional fees
COURT OF APPEALS
OF
NEVADA

21
(0) i947s calatip
were outside the scope of the order for which Fatemeh sought
reconsideration. Further, it was improper to award costs when Fatemeh
did not address them or request them in her motion for reconsideration. We
therefore reverse the district court's award of attorney fees and costs in the
amount of $176,976.99 and remand for the district court to consider only
those fees incurred in connection with the summary judgment motion and
evidentiary hearing. When calculating those fees, the court must ensure
that any fees that were already addressed in prior court orders are excluded.
The court must also consider any fees that Parviz has already paid toward
that amount to ensure the attorney fee award is not duplicative.
In addition, the $59,000 award to reimburse Fatemeh for
rnonies she borrowed to fund the litigation was an abuse of discretion. The
decree contains no findings or analysis about this award but merely states
that "Parviz shall be required to reimburse the money to her." It appears
that the award of money borrowed to fund the litigation is duplicative of the
other attorney fee awards in the decree. Yet, in the absence of factual
findings, this court cannot adequately review the district court's award. See
Robison, 100 Nev, at 673, 691 P.2d at 455; see also Roe v. Roe, 139 Nev.,
Adv. Op. 21, *33-36, P.3d , (Ct. App. July 27, 2023). We
therefore reverse this award and, on remand, direct the court to ensure that
Fatemeh does not receive double recovery of her attorney fees.
Next, Parviz challenges the award of expert fees. The decree
awarded a total of $19,565 in expert fees for three experts, including $7,450
for translation services. NRS 18.005(5) provides for the recovery of fees "ih
an amount of not more than $1,500 for each witness, unless the court allows
a larger fee after determining that the circumstances surrounding the

COURT OF APPEALS
OF
NEVADA

32
(0) 1947B
expert's testimony were of such necessity as to require the larger fee."18 "A
district court's decision to award more than $1,500 in expert witness fees is
reviewed for an abuse of discretion." Frazier v. Drake, 131 Nev. 632, 644,
357 P.3d 365, 373 (Ct. App. 2015). A district court abuses it discretion when
it fails to provide "an express, careful, and preferably written explanation
of the court's analysis of factors pertinent to determining the

reasonableness of the requested fees and whether the circumstances
surrounding the expert's testimony were of such necessity as to require the
larger fee." Id. at 650, 357 P.3d at 377 (internal quotation marks omitted).
The decree made specific findings to justify the fees for the first two experts
but failed to further address the translation fee. Because the decree failed
to justify the translation services award," granting Fatemeh this expert fee
for translation services was an abuse of discretion.2°

"Following the entry of the divorce decree, the Nevada Legislature
amended NRS 18.005(5) to authorize awards up to $15,000, rather than
$1,500, for each expert witness, which amendment became effective on
July 1, 2023. 2023 Nev. Stat., ch. 70, § 1, at (enacting A.B. 76, 82d Leg.
(Nev. 2023)). For clarity, we cite to the pre-amendment version of NRS
18.005(5), which was the version in effect when the divorce decree was
entered.

'Although it is arguable whether the expenses of the translation
services qualify as expert fees, in this case the decree explicitly included the
translation fee as an expert fee award, and neither party challenged the
expert designation on appeal, only the amount of the fee awarded.

20 Parviz argues on appeal that the expert fee award in the decree
failed to account for a preliminary $5,000 expert fee awarded to Fatemeh
more than three years before the parties' divorce trial. On remand, similar
to the attorney fee award, the district court should review any amounts that
Parviz has already paid to ensure the expert fee award is not duplicative.
If the court finds that Parviz had already paid toward the expert fee prior
to trial, the decree should reduce the expert fee award correspondingly.
COURT OF APPEALS
OF
NEVADA
33
(0) 19478
Miscellaneous financial awards and allocations
Lastly, Parviz challenges a number of miscellaneous financial

awards and allocations to Fatemeh and argues they were not supported by
factual findings or substantial evidence. Specifically, he challenges an

award for interim spousal support arrears, the division of insurance
proceeds from Fatemeh's car accident, the unequal allocation of the parties'
debt. and the sale of Parviz's residence.
The interim spousal support arrears were supported by
substantial evidence, as Fatemeh filed a schedule of arrearages shortly
before trial. See Ogawa, 125 Nev. at 668, 221 P.3d at 704. The division of
insurance proceeds from Fatemeh's car accident was also supported by
substantial evidence because Fatemeh testified that Parviz received the full
insurance payout. Therefore, we affirm these two awards.
However, the decree does not contain adequate findings to
support the unequal distribution of debt, where Parviz was ordered to pay
half of Fatemeh's community credit card debt but was deemed solely
responsible for his bankruptcy debt. Because the district court failed to
state its reasoning for why it made an unequal distribution of the parties'
community debt, the court abused its discretion. NRS 125.150(1)(b)

(providing that the court must make an equal disposition of community
property, unless the court sets forth in writing the reasons for making an
unequal disposition); Lofgren, 112 Nev. at 1283, 926 P.2d at 297. We

reverse these allocations as well and remand for further findings.
The final issue is the sale of Parviz's home. Parviz contends on
appeal that the district court violated his due process rights by ordering the
forced sale of the home, despite the parties' stipulation to the contrary,
without affording him the opportunity to be heard. We disagree.

COURT OF APPEALS
OF
NEVADA

34
O0 19475
Initially, the parties stipulated that Parviz would be permitted

to keep the marital home and buy out Fatemeh's interest so long as he paid
for an appraisal, which Parviz agreed to do. However, in his closing brief
after trial, Parviz requested that the district court order the sale of the
marital home and split the net proceeds between the parties. Similarly, in
her closing brief, Fatemeh also requested the district court order the sale of
the home to satisfy Parviz's financial obligations under the decree. Finally,
in his rebuttal brief, Parviz repeated his request for the district court to
order the sale of the marital home, though he disputed which party should
be financially responsible for home maintenance and costs pending the sale.
"The doctrine of 'invited error' embodies the principle that a
party will not be heard to complain on appeal of errors which he himself has
introduced or provoked the court or the opposite party to commit. It has
been held that for the doctrine of invited error to apply it is sufficient that
the party who on appeal complains of the error has contributed to it."
Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994) (citing 5
Am. Jur. 2d Appeal and Error § 713 (1962)).
In this case, Parviz twice requested that the district court order
the sale of the marital home, but he then contends on appeal that the
district court denied his due process rights when it did, in fact, order the
sale of the home. Because Parviz introduced the very error he challenges
on appeal, he invited the error and is not entitled to relief. Pearson, 11.0
Nev. at 297, 871 P.2d at 346 (stating that the appellant "may not be heard
to complain of the decision which resulted from her own attorney's
request").
CONCLUSION
This case illustrates the importance of both practitioners and
courts exercising diligence when submitting and adopting proposed orders;
COURT OF APPEALS
OF
NEVADA

35
(0) I947Ft
practitioners should ensure that proposed orders are factually accurate and
legally adequate, and courts should exercise due diligence and judgment
when reviewing litigant-drafted orders prior to adoption. Although we
strongly caution courts against adopting litigant-drafted orders without
first engaging in thorough and diligent review, we cannot conclude under
these circumstances that adopting a proposed order without modification is
itself an abuse of discretion. Rather, the appropriate inquiry is to examine
the district court's substantive findings, and in this case, we conclude that
the court abused its discretion when making several of the financial awards
and orders.
In conclusion, we affirm the financial award for interim spousal
support arrears and the distribution of the insurance proceeds from
Fatemeh's car accident, which were supported by substantial evidence in
the record. We also affirm the decree's order to sell the marital home.
However, we reverse and remand the financial awards for alimony, attorney
fees, and translation services fees. We also reverse and remand the decree's
$59,000 award to reimburse Fatemeh for monies she borrowed to fund the
litigation and the unequal distribution of the parties' community property
and debts. Insofar as the parties have raised any other arguments that are
not specifically addressed in this opinion, we have considered the same and
conclude that they either do not present a basis for relief or need not be
reached given the disposition of this appeal.21

21We note that Parviz made several arguments that did not include
appropriate citations to the record, and therefore, we decline to consider
them. See Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 997, 860 P.2d 720, 725
(1993) ("This court need not consider the contentions of an appellant where
the appellant's opening brief fails to cite to the record on appeal."). We
remind counsel that every assertion in briefs regarding matters in the
COURT OF APPEALS
OF
NEVADA
36
WI 194,14 <4WD
On remand, the court must reevaluate the financial awards for
alimony, attorney fees, and expert fees under the appropriate legal
standards as set forth in this opinion.22 The court must also reevaluate the
issue of waste and make particularized findings to identify any compelling
reasons to justify the unequal distribution of the parties' community
property and debt in accordance with NRS 125.150(1)(b).

J.

We concur:

, J.
Bulla

record shall be supported by a reference to the appendix where the matter
relied on is to be found. NRAP 28(e)(1).

22Asnoted earlier, Parviz does not challenge the district court's
redistribution of his retirement account. Nevertheless, in light of our
disposition, the district court should reevaluate the necessity of using
Parviz's share of his retirement account to satisfy his financial obligation to
Fatemeh in light of any financial awards the court orders in accordance with
this opinion.
COURT OF APPEALS
OF
NEVADA
37
(0) 194713 -