Consolidated appeals and cross-appeals from a divorce decree
and post-divorce decree order concerning attorney fees and
costs. Eighth Judicial District Court, Family Court Division,
Clark County; Bryce C. Duckworth, Judge.
Office of Daniel Marks and Daniel Marks and Nicole M. Young,
Las Vegas, for Appellant/Cross-Respondent.
Radford J. Smith, Chartered, and Radford J. Smith and Garima
Varshney, Henderson, for Respondent/Cross-Appellant.
THE COURT EN BANC
a divorce action with a $47 million community property
estate, in which the district court awarded alimony not based
on need and also unequally distributed the parties'
community property due to one spouse's extramarital
affairs, gifts to family, and excess spending. In this
opinion, we recognize that alimony can be just and equitable
even when not based on financial need, but we reverse the
alimony award in this case because the receiving spouse's
share of community property will produce passive income
sufficient to maintain her marital standard of living. We
also hold that community funds spent on extramarital affairs
are dissipated such that the district court has a compelling
reason to make an unequal disposition of community property.
Finally, this opinion addresses whether monetary sanctions
were appropriate for expenditures in violation of the
automatic joint preliminary injunction ordering the parties
not to spend money outside the usual course of business;
whether expert witness and attorney fees were warranted; and
when a community property estate properly ends. We affirm in
part, reverse in part, and remand.
Kogod and Gabrielle Cioffi-Kogod married in 1991 in New York
City. They lived in various cities throughout their marriage,
moving each time to advance Dennis's career in the
healthcare industry. In 2003, Dennis and Gabrielle moved to
Las Vegas. Dennis worked for a healthcare company based in
southern California and Gabrielle worked part-time in Las
Vegas as a nurse consultant. Dennis traveled frequently for
work and spent his weekdays either traveling or at his office
in southern California. He spent most weekends with Gabrielle
in Las Vegas.
and Gabrielle considered themselves upper-middle class until
2004, when Dennis took a more senior role at his company. By
2009, Dennis was promoted to Chief Operating Officer of a
Fortune 500 healthcare company. With his new promotion, he
earned an average base salary of $800, 000 per year, but
received bonuses that put his average annual income at almost
$14, 000, 000. Gabrielle, as a part-time nurse consultant,
earned approximately $55, 000 per year. Dennis describes this
time period after he and Gabrielle moved to Las Vegas as one
in which they were essentially living separate lives, but
Gabrielle disputes Dennis's characterization and claims
that they spoke every day, sometimes multiple times a day.
to Gabrielle, Dennis had started a separate family in
southern California. He met Nadya in November 2004 and by
June 2005 they participated in a wedding-type ceremony in
Mexico. Shortly after, Dennis informed Nadya he was already
married. Despite this, Dennis and Nadya remained together
and, after participating in in-vitro fertilization, had twin
girls in 2007. Dennis paid for all of Nadya's and his
daughters' expenses, including a condominium in southern
California, luxury cars, shopping trips and vacations,
cosmetic surgery, and Nadya's college classes-he even
invested in a business on Nadya's behalf. Dennis and
Nadya remained together until 2015 when Nadya discovered that
Dennis had another girlfriend.
initially filed for divorce from Gabrielle in 2010, but the
action was dismissed and the couple instead became informally
separated as of July 2010. Gabrielle then filed this divorce
action in December 2013, at which time she still did not know
about Dennis's extramarital family. Had Dennis and
Gabrielle divorced in 2010 when they informally separated,
just one year after Dennis was promoted to COQ, the marital
estate would have been significantly smaller than the
approximately $47 million ultimately divided by the district
district court entered its divorce decree in August 2016.
Because the district court previously awarded more than $6
million to each Gabrielle and Dennis as separate property
throughout the divorce proceedings, $35 million of community
property remained in the marital estate. Due to Dennis's
expenditures on extramarital affairs, gifts to his family
during the divorce proceedings, and spending in excess of his
self-declared expenses, the district court found that Dennis
dissipated $4, 087, 863 in community property and unequally
divided the parties' community property on that basis.
The district court also awarded Gabrielle alimony in the lump
sum of $1, 630, 292 to compensate for economic losses as a
result of the marriage and divorce, but recognized that she
did not need alimony to support herself. In total, Gabrielle,
58 years old, received nearly $21 million in the divorce
decree and Dennis, 57 years old, received just under $14
million. Gabrielle received mostly cash assets, which she
does not contest can passively earn her between $500, 000 and
$800, 000 per year, whereas Dennis's assets largely
consist of real property.
addition to the unequal disposition of community property and
the alimony award, the district court sanctioned Dennis $19,
500 for purported violations of an automatic joint
preliminary injunction and awarded $75, 650 in expert witness
costs to Gabrielle to pay for the forensic accounting firm
that analyzed over 27, 200 of her and Dennis's financial
transactions from between 2008 and 2016. Dennis appealed from
the district court's orders, and Gabrielle
first challenges the award of alimony to Gabrielle. Permanent
alimony is financial support paid from one spouse to the
other for a specified period of time, or in a lump sum,
following a divorce. NRS l25.l50(1)(a); Rodriguez v.
Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000)
("Alimony is financial support paid from one spouse to
the other whenever justice and equity require it.").
When granting a divorce, a district court may award alimony
to either spouse "as appears just and equitable."
NRS l25.150(1)(a). The decision of whether to award alimony
is within the discretion of the district court. Buchanan
v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974)
("In determining whether alimony should be paid, as well
as the amount thereof, courts are vested with a wide range of
determining if alimony is just and equitable, a district
court must consider the eleven factors listed in NRS
125.150(9). See DeVries v. Gallio, 128 Nev.
706, 711-13, 290 P.3d 260, 264-65 (2012). The district court
may also consider any other relevant factor, but it must not
consider the marital fault or misconduct, or lack thereof, of
the spouses. Rodriguez, 116 Nev. at 999, 13 P.3d at
419 ("Alimony is not a sword to level the wrongdoer.
Alimony is not a prize to reward virtue.").
125.150(9)'s authorization to award alimony as appears
just and equitable is amorphous and does not explain the
purpose of alimony. See David A. Hardy, Nevada
Alimony: An Important Policy in Need of a Coherent Policy
Purpose, 9 Nev. L.J. 325, 330 (2009) ("Nevada does
not provide a coherent policy rationale for why, when, and
how alimony should be awarded."); Robert Kirkman
Collins, The Theory of Marital Residuals: Applying an
Income Adjustment Calculus to the Enigma of Alimony, 24
Harv. Women's L.J. 23, 23 (2001) ("Statutes simply
list factors for trial courts to consider without providing
any guidance as to how the judge should weigh or apply
them."). Leaving the purpose of alimony nebulous makes
alimony awards unpredictable for parties and their attorneys,
and leaves courts uncertain as to when, and in what amount,
alimony should be awarded. Marshal Willick, In Search of
a Coherent Theoretical Model for Alimony, Nev. Law.,
Apr. 2007, at 41 (noting that alimony is "the last great
crapshoot in family law" because "it is a category
of remedy without any substantive underlying theoretical
parties' arguments in this case highlight the undefined
nature of alimony awards. Dennis argues that a judge's
discretion to award alimony is limited to instances of
financial need, and that no Nevada case or statute extends
alimony beyond financial need. Gabrielle responds that
alimony may be awarded to equalize post-divorce earnings or
maintain the marital standard of living, regardless of need.
Our previous cases often addressed alimony without discussing
its purpose or scope in express terms. But after examining
the historical underpinnings of alimony and our prior case
law, we now hold that alimony can be "just and
equitable" both when necessary to support the economic
needs of a spouse and to compensate for a spouse's
economic losses from the marriage and divorce, including to
equalize post-divorce earnings or help maintain the marital
standard of living.
in its most elementary form, is based on the receiving
spouse's need and the paying spouse's ability to pay.
When alimony originated in England, a woman's legal
rights, including ownership of property and the ability to
work and keep her wages, were subsumed by her husband under
the doctrine of coverture. See Collins, The
Theory of Marital Residuals, 24 Harv. Women's L.J.
at 28-29 ("Married women were barred by the doctrine of
unity from holding certain property, signing contracts,
working at many professions, or retaining their own earnings
when they did work....") (footnotes omitted). And
absolute divorce, where the marital relationship was
terminated, was exceedingly difficult to obtain. See
id. Rather than absolute divorce, spouses could seek
a "'divorce' from bed and board," where the
spouses lived apart without actually terminating the marriage
or the wife being released from coverture. Id. This
meant the husband had an ongoing legal and moral obligation
to continue to provide for his wife, despite the
"divorce," because she could not support herself.
Id. at 29; see also Manby v. Scott (1663)
86 Eng. Rep. 781, 784 (Exch.) ("[T]he law having
disabled the wife to bind herself by contract, therefore the
burthen shall rest upon the husband, who by law is bound to
maintain her . . . ."). Despite finding its origins in
the scarcity of absolute divorce and the law of coverture,
courts continued to award alimony even after absolute divorce
became available, seemingly out of economic necessity.
Collins, The Theory of Marital Residuals, 24 Harv.
Women's L.J. at 30-31.
to remedy the economic-power imbalance between husband and
wife is recognized in Nevada's earliest cases. See In
re application of Phillips, 43 Nev. 368, 373, 187 P.
311, 311-12 (1920) (recognizing alimony as "a duty which
sound public policy sanctions to compel one who is able so to
do, possibly as a result of the cooperation (during
coverture) of his former wife, to prevent such former wife
from becoming a public charge or dependent upon the charity
of relatives or friends"); see also Wilde v.
Wilde, 2 Nev. 306, 307 (1866) (noting that a married
woman's "property is generally entirely under the
control of the husband"). Indeed, some cases treat the
receiving spouse's need and the paying spouse's
ability to pay as the sole alimony determinants. See,
e.g., Applebaum v. Applebaum, 93 Nev. 382, 386, 566 P.2d
85, 88 (1977) (affirming a denial of alimony where the spouse
"had adequate resources with which to support herself);
Foy v. Estate of Smith, 58 Nev. 371, 376, 81 P.2d
1065, 1067 (1938) (stating that the right to alimony "is
solely that of support"); Greinstein v.
Greinstein, 44 Nev. 174, 174, 191 P. 1082, 1082 (1920)
(affirming an award of alimony where "the wife was
without sufficient means, and unable physically to maintain
and support herself, and . .. the husband was financially
able to pay"); Lake v. Bender, 18 Nev. 361,
410, 7 P. 74, 80 (1884), modified on reh'g
(stating that a court should award alimony based on "the
financial conditions of the husband and the requirements of
the wife"), abrogated on other grounds by Johnson v.
Johnson, 89 Nev. 244, 246, 510 P.2d 625, 626 (1973).
125.150, which authorizes alimony, directs a district court
to consider several factors that help the court to understand
the spouses' financial needs and abilities to pay.
See NRS 125.150(9). A district court must consider:
"[t]he financial condition of each spouse," NRS
l25.150(9)(a); "[t]he nature and value of the respective
property of each spouse," (9)(b); "[t]he income,
earning capacity, age and health of each spouse,"
(9)(e); "[t]he award of property granted by the court in
the divorce ... to the spouse who would receive the
alimony," (9)(j); and "[t]he physical and mental
condition of each party as it relates to the financial
condition, health and ability to work of that spouse,"
(9)(k). After considering these factors, and any other
relevant circumstance, our case law makes clear that a
district court may award alimony to ensure that an
economically powerless spouse receives sufficient support to
meet his or her needs. See Gilman v. Gilman, 114
Nev. 416, 423-24, 956 P.2d 761, 765 (1998) ("The Nevada
legislature created spousal support awards to, inter
alia, keep recipient spouses off the welfare
district court awards alimony to address a spouse's
financial need, the basis for an award is clear-cut when one
spouse is unable to meet the basic necessities of life such
as food, clothing, and habitation. But such an award becomes
less certain and predictable when the divorced spouse is able
to meet his or her basic needs. A court can "reach very
different figures for a spouse's 'needs,'
depending on whether those needs are measured at a
subsistence level, a level that the court believes to be
objectively reasonable, or the actual subjective marital
standard of living." Brett. R. Turner, Spousal
Support in Chaos, 25 Fam. Advoc, Spring 2003, at 14, 17.
Alimony based on economic necessity, then, requires a policy
decision regarding when a divorced spouse's
"needs" are met. See Principles of the Law of
Family Dissolution: Analysis and Recommendations §
5.02 cmt. a (Am. Law Inst. 2002) (hereinafter Family
Dissolution) ("Some judicial opinions find the
alimony claimant in 'need' only if unable to provide
for her basic necessities, others if the claimant is unable
to support himself at a moderate middle-class level, and
still others whenever the claimant is unable to sustain the
living standard enjoyed during the marriage even if it was
lavish."). As it stands, the Legislature has placed that
decision-making power in the hands of district courts to
award alimony "as appears just and equitable." NRS
addition to economic need, alimony may also be awarded to
compensate for economic loss as the result of a marriage and
subsequent divorce, particularly one spouse's loss in
standard of living or earning capacity. See Mary Kay
Kisthardt, Re-thinking Alimony: The AAMUs Considerations
for Calculating Alimony, Spousal Support or Maintenance,
21 J. Am. Acad. Matrim. Law. 61, 69 (2008) (describing the
wave of reform to alimony statutes as compensation "for
loss of human capital by virtue of non-market work engaged in
by the claimant during the marriage"); see also
Collins, The Theory of Marital Residuals, 24 Harv.
Women's L.J. at 49 C'[T]here should be some degree of
sharing of post-divorce incomes to reflect the returns
flowing from efforts made while the marital joint venture was
operational-an equitable sharing of the residual economic
benefits from work done during the marriage."). Given
the contractual and cooperative undertakings implicit in a
marriage, alimony might be seen as a remedy fashioned for the
economic losses resulting from splitting one household into
two through divorce. See Family Dissolution §
5.02 cmt. a (recognizing that divorce creates financial
losses for spouses that, "[w]ithout reallocation, . . .
are not likely to fall equitably as between them"). Such
a loss could come in the form of lower income-earning
potential due to forgoing career opportunities for the sake
of the marriage, see Ira Mark Ellman, The Theory
of Alimony, 77 Cal. L. Rev. 3, 51 (1989) (describing
alimony as compensation for marital investment, i.e.,
"conduct giving rise to a compensable loss in earning
capacity" upon divorce), or a lower standard of living
than reasonably expected due to the early termination of the
marriage, see generally Collins, The Theory of
Marital Residuals, 24 Harv. Women's L.J. at 49-50
(recognizing that the return from efforts made during the
marriage may not materialize until after the divorce). As a
remedy, a court can award alimony to make the "spouse
whole at the end of the marriage by rewarding efforts in
homemaking, childrearing, interruption of a career, or
contributions to the success of the other." Id.
case law's concern for maintaining a spouse's
standard of living post-divorce is reflected in this
rationale for alimony. Enabling the lower-income-earning
spouse to maintain a lifestyle as close as possible to the
lifestyle enjoyed during the marriage has consistently been
an important aim of this court. See, e.g., Wright v.
Osburn, 114 Nev, 1367, 1369, 970 P.2d 1071, 1072 (1998)
(deeming the spousal support award insufficient because the
wife would not be able to "maintain the lifestyle she
enjoyed during the marriage or a lifestyle commensurate
with" her former husband); Sprenger v.
Sprenger, 110 Nev. 855, 860, 878 P.2d 284, 287 (1994)
(remanding with instructions to award alimony such that the
spouse may "live as nearly as fairly possible to the
station in life she enjoyed before the divorce")
(internal quotation marks omitted); Gardner v.
Gardner, 110 Nev. 1053, 1058, 881 P.2d 645, 648 (1994)
(increasing alimony by ten years because the wife's
"contribution to the community over many years [was] not
fairly recognized by the two-year alimony award");
Rutar v. Rutar, 108 Nev. 203, 208, 827 P.2d 829, 832
(1992) (increasing the alimony award where the previous award
only provided "a standard of living far below that to
which [the wife and children] have been accustomed").
This court reaffirmed this goal in Shydler v.
Shydler, 114 Nev. 192, 954 P.2d 37 (1998), by noting
that two of the primary purposes of alimony "are to
narrow any large gaps between the post-divorce earning
capacities of the parties and to allow the recipient spouse
to live 'as nearly as fairly possible to the station in
life [ ] enjoyed before the divorce.'" Id.
at 198, 954 P.2d at 40 (alteration in original) (citations
omitted) (quoting Sprenger, 110 Nev. at 860, 878
P.2d at 287-88).
the need-based factors, NRS 125.150(9) codifies some factors
to help a district court assess the economic losses caused by
the marriage and subsequent divorce. A district court must
consider: "[t]he duration of the marriage," NRS
l25.l50(9)(d); "[t]he income, earning capacity, age and
health of each spouse," (9)(e); "[t]he standard of
living during the marriage," (9)(f); the spouse's
career before the marriage, (9)(g); specialized education or
training obtained during the marriage, (9)(h); and
"[t]he contribution of either spouse as homemaker,"
(9)(i). After considering these factors, and any other
relevant circumstance, the district court may award alimony
under NRS l25.150(1)(a) to compensate a spouse for