SUPREME COURT 

OF 

NEVADA 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

KIMBERLY JONES, 

Appellant, 

vs. 

FLETCHER JONES, JR., 

Respondent. 

No. 66632 

FILED 

JUL 1 4 2016 

TFtACIE K LINDE 

ORDER OF AFFIRMANCE CLERK OF SUPREME C

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BY -341)=SA=6€4.---- 

D PUTY CLE 

This is an appeal from a final judgment entered, after a bench 

trial, on a complaint for declaratory judgment and specific performance 

regarding three marital agreements entered into by the parties. Eighth 

Judicial District Court, Clark County; Gayle Nathan, Judge. 

Fletcher Jones, Jr. (Ted), and Kimberly Jones were married on 

July 4, 1998. Prior to their marriage, Ted and Kimberly signed a 

prenuptial agreement. During the course of Ted and Kimberly's 

separation and subsequent reconciliation, they signed two additional 

marital agreements: (1) a "Marital Settlement Agreement" (MSA), and (2) 

"Post Marital Agreement" (PMA). 

Kimberly filed a petition for dissolution of marriage in 

California on January 4, 2012. On October 4, 2012, Ted filed a complaint 

for declaratory judgment and specific performance in Nevada to enforce 

the parties' agreements. As part of the agreements, it was provided that 

Ted would give a sum of money each year to Kimberly. The no-contest 

clause stated that as a condition precedent to bringing any challenge to 

the agreement appellant had to repay the annual payments that she 

received "together with" anything purchased or obtained with the money 

from those payments. Without any prepayment, Kimberly filed a motion 

to dismiss Ted's complaint in the Nevada action on October 30, 2012, 

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alleging that the Nevada district court lacked jurisdiction because of the 

ongoing California divorce proceedings. The district court denied her 

motion and, after a bench trial, it entered a judgment finding that 

Kimberly violated the no-contest clause in the prenuptial agreement and 

awarded Ted specific performance and attorney fees. 

Kimberly raises the following issues on appeal: (1) whether 

the district court erred by refusing to extend comity to the California 

court; (2) whether a no-contest clause in a prenuptial agreement is 

enforceable; (3) whether the language in the provision at issue actually 

calls for a condition precedent, as opposed to a forfeiture; (4) whether 

Kimberly actually violated the clause at issue; (5) whether the district 

court erred by admitting evidence related to Kimberly's credibility; (6) 

whether the district court erred by granting Ted a cash award and real 

property; and (7) whether the district court erred by awarding Ted 

attorney fees. 

The district court did not err by refusing to extend comity to the California 

court 

The doctrine of comity "is a principle of courtesy by which the 

courts of one jurisdiction may give effect to the laws and judicial decisions 

of another jurisdiction out of deference and respect." Gonzales—Alpizar v. 

Griffith, 130 Nev., Adv. Op. 2, 317 P.3d 820, 826 (2014) (internal 

quotations omitted). "[Comity] is appropriately invoked according to the 

sound discretion of the [trial] court." Mianecki v. Second Judicial Dist. 

Court, 99 Nev. 93, 98, 658 P.2d 422, 425 (1983). 

Here, the district court in Nevada had ample reasons for 

refusing to grant comity to the California proceedings. For example, 

Kimberly filed a writ petition with this court contending that the district 

court should have dismissed Ted's complaint in light of the proceedings in 

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California. Jones v. Eighth Judicial Dist. Court, Docket No. 62614 (Order 

Denying Petition for Writ of Mandamus or Prohibition, July 24, 2013). 

This court denied Kimberly's request for relief, holding that "[i]t is not 

clear . . . that the issues presented in the [Nevada] declaratory relief 

action may be adjudicated in the California case." Id. This court further 

stated that "nothing in the record [reflected] that the California court 

considered or made findings as to. . . whether it. . . would adjudicate the 

validity of the marital [contracts]." Id. The district court expressed 

similar concerns regarding whether the California court would adjudicate 

the issues relating to the agreements, noting that Ted ran the risk of the 

California courts sending him back to Nevada. 

The district court's statements indicate that it weighed the 

likelihood that California would reach the issue of validity and, in its 

discretion, refused to extend comity to the California courts on this issue. 

Furthermore, on May 9, 2016, this court granted Ted's motion seeking 

judicial notice of the following decisions in the California litigation: (1) the 

parties' marital dissolution judgment; (2) the final statement of decision 

following trial; and (3) an April 5, 2015, order granting full faith and credit 

to the Nevada district court on the issues of validity and enforceability of 

the marital contracts. These documents all show that the California court 

actually deferred to the Nevada courts on the issues raised in Kimberly's 

appeal. Therefore, the Nevada district court did not err by refusing to 

extend comity to the California court. 

A no-contest clause in a prenuptial agreement is enforceable 

This court reviews the validity of a prenuptial agreement de 

novo. NRS 123A.080(3); Sogg v. Nevada State Bank, 108 Nev. 308, 312, 

832 P.2d 781, 783 (1992). 

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NRS Chapter 123A 

Prenuptial agreements are governed by the Uniform 

Premarital Agreement Act (UPAA), codified at NRS 123A.010. Parties 

under the UPAA may contract with respect to "[a]ny . . matter, including 

their personal rights and obligations, not in violation of public policy or a 

statute imposing a criminal penalty." NRS 123A.050(1)(h). Furthermore, 

a prenuptial agreement is enforceable so long as it was executed 

voluntarily and was not unconscionable when executed.' NRS 123A.080. 

The no-contest clause in Ted and Kimberly's prenuptial 

agreement does not violate public policy 

Although "there is a strong public policy favoring individuals 

ordering and deciding their own interests through contractual 

arrangements," equally strong public policy considerations have been used 

to render premarital agreements partially or wholly unenforceable. 

Bloomfield v. Bloomfield, 764 N.E.2d 950, 952 (N.Y. 2001) (internal 

quotations omitted). 

Additionally, 

[c]ourts in many states have held that 

considerations of public policy limit the 

permissible scope of a premarital agreement. For 

example, states have an overriding interest in 

protecting the welfare of children. Therefore, 

courts have held that a premarital agreement's 

waiver of child support, custody or visitation is 

unenforceable. States also have an interest in 

protecting the economic welfare of their adult 

residents. Therefore, some states treat premarital 

'Kimberly does not dispute that the prenuptial agreement was 

entered into voluntarily or that financial disclosures were an issue. 

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provisions that waive or limit spousal support as 

violative of public policy and unenforceable. 

Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 Yale 

J.L. & Feminism 229, 254-55 (1994) (footnotes omitted). 

Here, none of the public policy concerns regarding spousal 

support or child-related issues are involved. In fact, the no-contest clause 

expressly states that lalny claim for alimony, spousal support or relating 

to the custody or support of children shall not be deemed an act which 

triggers the provisions of this paragraph." Furthermore, the record 

reflects that the prenuptial agreement would not adversely affect 

Kimberly's economic welfare. Paragraph IV(G) of the prenuptial 

agreement states: 

While the parties remain married and are residing 

together in the same residence, Ted will pay the 

reasonable expenses for the general health, 

maintenance, recreation, support and welfare of 

the parties. . . . Each month the parties reside 

together after marriage, Ted will make available 

for Kimberly's exclusive use, cash and/or credit in 

the sum of $5,000.00 per month, for Kimberly to 

utilize for her personal expenses. There shall be 

cost of living adjustments to said amount every 

three years. 

The district court found that Ted complied with this 

paragraph until the parties' divorce proceedings in 2005, paying all living 

expenses of the parties and even increasing the monthly amount available 

to Kimberly for her personal use from $5,000 to $10,000. Therefore, the 

prenuptial agreement did not limit spousal support, and thus, did not 

affect Kimberly's economic welfare to the extent that it would render the 

prenuptial agreement unenforceable as against public policy. 

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The no-contest clause in Ted and Kimberly's prenuptial 

agreement was not unconscionable when executed 

"A contract is unconscionable only when the clauses of that 

contract and the circumstances existing at the time of the execution of the 

contract are so one-sided as to oppress or unfairly surprise an innocent 

party." Bill Stremmel Motors, Inc. v. IDS Leasing Corp., 89 Nev. 414, 418, 

514 P.2d 654, 657 (1973). 

Here, the clauses of the agreement and the circumstances 

existing at the time of the execution of the contract were not so one-sided 

as to either oppress or unfairly surprise Kimberly. Kimberly was 

independently represented and understood the legal significance of the 

agreement. She also signed the agreement freely and voluntarily. 

Furthermore, proposed changes to the prenuptial agreement were 

discussed between Kimberly's and Ted's attorneys, with "Ted agree[ing] to 

every material change proposed by Kimberly to the prenuptial 

agreement." Lastly, the validity of the prenuptial agreement was restated 

twice during Kimberly and Ted's marriage, once when they ratified the 

MSA and again when they ratified the PMA. Therefore, the agreement 

was not so one-sided as to unfairly surprise Kimberly. 2Additionally, the 

terms of the prenuptial agreement were not so one-sided as to oppress her 

2Kimberly argues that the no-contest clause is void because it only 

punishes her. However, Kimberly fails to view the clause in the context of 

the entire agreements. Ted was under an ongoing obligation to pay 

Kimberly funds during their marriage and, as the record reflects, is 

currently under an obligation to pay Kimberly a substantial amount per 

month for spousal support. This is in addition to the child support that 

she receives. Therefore, we hold that the no-contest clause is neither onesided nor unfairly punishes Kimberly. 

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in an unconscionable manner. We thus hold that the agreement was not 

unconscionable. 

The language in the provision at issue calls for a condition precedent 

"Contract interpretation is subject to a de novo standard of 

review." May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). 

If contract language is clear, it will be enforced as written. Buzz Stew, 

LLC v. City of N. Las Vegas, 131 Nev., Adv. Op. 1, 341 P.3d 646, 650 

(2015). 

The no-contest clause states: 

In the event Kimberly seeks in any way to 

set aside, impair or• invalidate any of the 

provisions of this Agreement, directly or 

indirectly, as a condition precedent to the right to 

bring or maintain such action(s), the amounts 

previously paid to her or for her benefit under the 

terms of Paragraph II(B)(9) [an annual sum of 

$250,000] of this Agreement shall be forfeited and 

repaid to Ted, together with all income or 

accumulations thereto or assets acquired 

therewith, and all future amounts otherwise 

payable under Paragraph II(B)(9) shall no longer 

be payable, and Ted's obligations under said 

Paragraph shall terminate. Any claim for 

alimony, spousal support or relating to the custody 

or support of children shall not be deemed an act 

which triggers the provisions of this paragraph. 

In its decision, the district court found that the term 

"condition precedent" did not restrict Ted's methods for claiming breach. 

Instead, the district court found the term was used to specify the actions 

that Kimberly needed to take before challenging the agreements. Because 

she failed to take these actions, the district court found that Kimberly 

breached the no-contest clause. 

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We agree. From the plain language of the provision, it is clear 

that the term "condition precedent" was used to specify that Kimberly 

must make the reimbursement prior to any challenge to the parties' 

agreements. By taking these prohibited actions prior to making the 

payments, Kimberly failed to comply with the agreement, thereby 

breaching it. Therefore, Ted is entitled to repayment pursuant to the 

agreed upon terms of the provision. 3 

Kimberly violated the clause at issue 

While a party's conduct is a question of fact, whether said 

conduct violates a no-contest clause is a legal question reviewed de novo. 

See Redman-Tafoya v. Armijo, 126 P.3d 1200, 1210 (N.M. Ct. App. 2005); 

see also In re Estate of Davies, 26 Cal. Rptr. 3d 239, 246 (Ct. App. 2005). 

Additionally, "Morfeiture provisions are strictly construed." Am. Fire & 

Safety, Inc. v. City of N. Las Vegas, 109 Nev. 357, 360, 849 P.2d 352, 355 

(1993). 

The language in the no-contest provision uses the term of art 

to "bring or maintain" an action, which means "the initiation of legal 

proceedings in a suit." Harris v. Garner, 216 F.3d 970, 973 (11th Cir. 

2000) (citing Black's Law Dictionary 192 (6th ed. 1990)). As a forfeiture 

clause is to be strictly construed, the term "action" therefore refers to a 

legal action. 

3Kimberly makes the additional argument that the involuntary 

forfeiture of benefits is a void form of liquidated damages. Because 

Kimberly raises this issue for the first time on appeal, it has been waived. 

Old Aztec Mine v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (issues 

may not be raised for the first time on appeal). 

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Under a plain reading of the language of the no-contest clause, 

it is clear that Kimberly breached the no-contest clause. First,. Kimberly's 

own attorneys conceded that the California litigation sought to attack the 

validity of the agreements. Second, Kimberly's August 2012 responses to 

requests for admission clearly constituted an attempt to set aside, impair, 

or invalidate provisions of the prenuptial agreement Lastly, Kimberly's 

answer to Ted's complaint included affirmative defenses that 

demonstrated an intent to set aside the agreements. Because an answer is 

considered a pleading in a court action, NRCP 7(a), we hold that the 

affirmative defenses alleged in Kimberly's answer, in addition to 

statements made by Kimberly's counsel, constitute a breach of the plain 

language of the no-contest clause. 4 

The district court did not abuse its discretion by admitting evidence related 

to Kimberly's credibility 

A district court's evidentiary rulings are reviewed for abuse of 

discretion. FGA, Inc. v. Giglio, 128 Nev. 271, 283, 278 P.3d 490, 497 

(2012). If the correct ruling is clear, however, refusing to follow it is an 

abuse of discretion. Fabbi v. First Nat'l Bank of Nev., 62 Nev. 405, 414, 

153 P.2d 122, 125 (1944). 

4Kimberly argues that even if herS affirmative defenses had 

prevailed, that would not have invalidated the agreements. This 

argument lacks merit. Kimberly's answer denied the validity and 

enforceability of the agreement, as well as raised allegations such as lack 

of consideration, adhesion, invalidity, mutual mistake, and that the 

prenuptial agreement was the result of "Ted's misrepresentations, 

concealment, circumvention and unfair practices." Had Kimberly 

prevailed on any of these affirmative defenses, all the agreements would 

have likely been invalidated and deemed unenforceable. 

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The district court did not abuse its discretion 

Evidence that is not relevant is not admissible. NRS 48.025. 

A spouse's credibility is relevant to the issue of validity of prenuptial 

agreements. See In re Marriage of Shanks, 758 N.W.2d 506, 513 (Iowa 

2008) (finding the wife's testimony regarding validity of the prenuptial 

agreement as not credible). 

Here, the district court admitted testimony related to 

Kimberly's claim that the no-contest clause was illegal, that Ted had 

waived his rights under the clause, that the clause was not equitable, that 

Kimberly felt pressured and unduly influenced by the proximity of the 

wedding to sign the prenuptial agreement, that she had not read the 

prenuptial agreement, and that she never negotiated a forum-selection 

clause. 

Therefore, Kimberly's testimony was relevant as to whether 

she had breached the no-contest clause, whether the clause was valid, 

whether Ted was entitled to specific performance, and whether Ted 

breached provisions of the agreements. Additionally, this court, in 

denying Kimberly's writ petition, stated: "To the extent that [Kimberly] 

contends the agreements were not freely negotiated and were 

unreasonable, these are fact questions that should be determined by the 

district court after the evidentiary hearing as to the validity of the 

agreements." Jones u. Eighth Judicial Dist. Court, Docket No. 62614 

(Order Denying Petition for Writ of Mandamus or Prohibition, July 24, 

2013). 

Accordingly, because her testimony was relevant on these 

issues, her credibility was therefore an issue. See NRS 50.075 ("The 

credibility of a witness may be attacked by any party . . . ."). Therefore, we 

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hold that the district court did not abuse its discretion by admitting 

evidence related to Kimberly's credibility.° 

The district court did not abuse its discretion by granting Ted an award of 

damages plus specific performance 

An award of damages following a bench trial is reviewed for an 

abuse of discretion. Asphalt Prods. Corp. v. All Star Ready Mix, Inc., 111 

Nev. 799, 802, 898 P.2d 699, 701 (1995). 

The no-contest clause, if triggered, explicitly mandates that 

Kimberly repay the annual sum of $250,000 paid to her by Ted, "together 

with all income or accumulations thereto or assets acquired therewith." 

As stated earlier, this provision was negotiated at length by both parties 

and both parties were represented by counsel. 

Based on the language in the no-contest clause, the district 

court awarded Ted a cash award of $1.75 million—comprised of the annual 

$250,000 sum paid to Kimberly by Ted from 1999-2005—along with an 

award of real properties—consisting of three properties that Kimberly had 

acquired with the annual $250,000 sum. The district court found that 

Kimberly has breached the parties' Prenuptial 

Agreement contract and Ted is entitled to specific 

performance. Such remedy is appropriate here, 

°Kimberly also argues that the district court "should not have 

permitted Kimberly's former attorney, Kathryn Stryker Wirth, to lead the 

impeachment effort against Kimberly by relying on privileged notes." 

However, the district court ruled that there was an attorney-client 

privilege and properly redacted the documents. See In re Grand Jury 

Proceedings, 689 F.2d 1351, 1352 (11th Cir. 1982). Kimberly fails to 

identify any specific testimony by Wirth that disclosed privileged 

communications impacting the trial or any part of the district court's 

findings and conclusions in which the district court improperly relied on 

privileged testimony from Wirth. 

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since the breach of contract involves real property, 

and the remedy at law is inadequate. Real 

property is so unique that money damages will not 

suffice to make a party whole. 

We hold that the district court correctly found that Kimberly 

must repay Ted the annual sums that she received from him, together 

with the properties she acquired therewith. Because the no-contest clause 

is explicit in its terms, it will therefore be enforced as written. 6 Buzz Stew, 

131 Nev., Adv. Op. 1, 341 P.3d at 650. 

The district court did not abuse its discretion by awarding Ted attorney 

fees 

"[Al district court's award of attorney[ ] fees will not be 

overturned absent a manifest abuse of discretion." Barmettler v. Reno Air, 

Inc., 114 Nev. 441, 452, 956 P.2d 1382, 1389 (1998). In awarding attorney 

fees, the district court must state its basis for the amount. Henry Prods., 

Inc. v. Tarmu, 114 Nev. 1017, 1020, 967 P.2d 444, 446 (1998). The district 

6Kimberly makes the additional arguments that (1) the real 

properties could not be forfeited because they were an independent award 

under the MSA, and (2) the district court had no jurisdiction to compel 

nonparties to disgorge the real properties, as the properties were owned by 

rental management companies organized as LLCs owned by Kimberly. 

We hold that these arguments lack merit. Although Ted may have 

released his rights to the properties at issue pursuant to the MSA, nothing 

in the MSA indicates that Ted waived any future interest in the 

properties. Clark v. Columbia/ HCA Info. Servs., Inc., 117 Nev. 468, 480, 

25 P.3d 215, 223-24 (2001) ("Contractual release terms are only 

enforceable against claims contemplated at the time of the signing of the 

release and do not apply to future causes of action unless expressly 

contracted for by the parties."). Therefore, the terms of the MSA did not 

prevent Ted from accruing an interest in the properties upon Kimberly's 

breach of paragraph XII. Furthermore, Kimberly withdrew the 

affirmative defense of non-joinder of parties at trial. Therefore, we hold 

that she waived this issue and we need not address it. 

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court must also demonstrate that the costs awarded were actually 

incurred and reasonable. Cadle Co. v. Woods & Erickson, LLP, 131 Nev., 

Adv. Op. 15, 345 P.3d 1049, 1054 (2015). 

In the present case, the district court provided the bases for its 

award. Its order stated that it based its attorney fee award on the 

agreements and EDCR 7.60. Furthermore, the record in this case bolsters 

Ted's argument that the attorney fees in the current action were 

reasonable and actually incurred. Accordingly, the district court did not 

abuse its discretion in awarding attorney fees to Ted. 

Therefore, we 

ORDER the judgment of the district court AFFIRMED. 7 

J. 

Har 

GibbonA 

Ejjaeg J. 

Pickerir: 

7The Honorable Ron D. Parraguirre, Chief Justice, voluntarily 

recused himself from participation in the decision of this matter. 

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cc: Hon. Gayle Nathan, District Judge 

Lewis Roca Rothgerber Christie LLP/Las Vegas 

Kolodny Law Group 

Black & LoBello 

Wasser, Cooperman & Carter 

The Jimmerson Law Firm, P.0 

Seastrom & Seastrom 

Lemons, Grundy & Eisenberg 

Eighth District Court Clerk 

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