ELIZABETHA.BROWN CLERKOFSUPREMECOURT 13Y-S •\ DEPUTYCLERK 

### ORDERAFFIRMINGINPART, REVERSINGINPARTANDREMANDING INTHE SUPREME COURT OF THE STATE OF NEVADA

No. 83412

No. 84077 

# FILED SEP 15 2022 CRAIGA.MUELLER, Appellant, vs. CRISTINAA. HINDS, Res ondent. CRISTINAA. HINDS, Appellant, vs. CRAIGA.MUELLER, Reseondent.

These are consolidated appeals from district court orders denying a motion to set aside or modify a divorce decree and marital settlement agreement and denying a request for attorney fees and costs. Eighth Judicial District Court, Family Court Division, Clark County; Rebecca Burton, Judge.'

Respondent/appellant Cristina Hinds filed for divorce from appellant/respondent Craig Mueller in 2018. On June 20, 2019, during Cristina's deposition, the parties reached a marital settlement agreement (MSA) concerningthe division ofcommunityproperty andplaced the terms of that agreement on the record pursuant to EDCR 7.50 (requiring agreements to be in writing or "entered in the minutes in the form of an order" to be effective). On July 28 and 29, 2019, the parties signed the

'Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in thismatter.



## 0.2a-? SUPREME COURT

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decree ofdivorce, incorporatingthe MSA.

A few months later, Cristina moved to hold Craig in contempt of court, largely due to his failure to make the property equalization payment provided in the MSA. Craig opposed and filed a countermotion seeking to set aside or modify the MSA. Throughout the litigation, both parties made multiple requests for an award of attorney fees and costs as sanctions and pursuant to the MSA's provision entitling the prevailing party to reasonable attorney fees and costs for any action to enforce or interpret theMSA. At some point, Cristina conceded that, after the parties reachedasettlementbutbeforetheysignedthewrittenMSA, shehadtaken $36,871 from a joint account that the MSA awarded to Craig. She then agreed that Craig should be entitled to an offset from the property equalization payment in that amount. After an evidentiary hearing, the district court granted Cristina's request to enforce the MSA's property equalization payment requirement subject to the offset, denied each of Craig'srequests, and ordered that Cristina shouldbe awarded her attorney fees and costs from the date she agreed to the offset. The district court set
a 15-day deadline for Cristina to submit a memorandum offees and costs; Cristina filed her memorandum one day late and the district court entered
an order decliningto award any fees or costs. Both parties now appeal.

In Docket No. 83412, Craig appeals frorn the district court's order denying his request to modify or set aside the MSA. We first reject Craig'sargumentthattheMSAwasnot avalid, bindingcontractduetolack ofmaterialtermsor mutualassent. See Grisham v. Grisham, 128Nev. 679, 685, 289 P.3d 230, 234-35 (2012) (providing that "a stipulated settlement agreement requires mutual assent" and must include materialtermswhich

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(0) I947A 2are "[ lsufficiently certain and definite for a court to ascertain what is

required of the respective parties" (internal citation and quotation marks omitted)). The record contains substantial evidence that the parties agreed to all material terms at the time of Cristina's deposition, including a division of assets and the amount ofthe community property equalization award.2 See May v. Anderson, 121 Nev. 668, 672-73, 119 P.3d 1254, 1257 (2005) (explaining that, when determining whether a contract exists, this court will "defer to the district court's findings unless they are clearly
erroneous or not based on substantial evidence"). Moreover, both parties affirmed under oath at that deposition that all material terms had been addressed andthat theyintendedthe agreementtobe enforceablepursuant to EDCR 7.50. And, because the MSA was already a binding agreement before Cristina withdrewthe money from theirjoint account, we agree with the district court that Craig failed to prove that Cristina fraudulently induced him to enter into the MSA. See J.A. Jones Constr. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 227, 290-91, 89 P.3d 1009, 1018 (2004) (listing elements to prove fraudulent inducement and holding that a party must prove by clear and convincing evidence that they justifiably relied upon a misrepresentation by the other party which was intended to induce them to enter into a contract); Havas v. Alger, 85 Nev. 627, 631, 461 P.2d 857, 860 (1969) ("Fraud is never presumed; it must be clearly and satisfactorilyproved.").

2To the extent that Craig argues on appeal that the MSA was not binding until they signed it in July 2019, he acknowledged in his pretrial briefthat the MSA was a binding settlement when they agreed to itsterms on June 20, 2019.

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OF NEVADA 0) I 947A cleSP40 3We alsoreject Craig's argument that the district court failed to

adjudicate his pretrial motion pursuant to NRS 125.150(3) (concerning postjudgment motions to adjudicate community property omitted from the divorce decree by fraud or mistake).3 Substantial evidence supports the court'sfindingsthattherewasafullandfairdisclosure ofallaccountswhen the parties reached their settlement, and that Craig failed to identify any community assetsthat were missing or omitted from the MSA. See Ogawa
v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) (providing that this court will give deference to and uphold a district court's factual findings if they are supported by substantial evidence).

Substantial evidence also supports the district court's finding that Craig failed to provide credible evidence to support his claim that Cristina's act of withdrawing the money from their joint account made it impossible for him toperform under the MSA. See id. Craig arguesthat he needed that money to serve as collateral for a loan to make the property equalizationpayment, but hefailstopoint to anythingintherecord to show that he formally applied for a loan, or that he was denied a loan for want of those funds, and we will not reweigh the district court's credibility determination on appeal.4 SeeEllis v. Caru,cci, 123Nev. 145, 152, 161P.3d

3The record belies Craig's contention that the district court found he waived therighttobringa motionpursuant toNRS 125_150(3). Rather,the district court pointed out that, pursuant to the terms of the MSA, Craig waived the right to any further discovery and agreed to settle all claims in the divorce case. Cf. Davi.s v. Beling, 128 Nev. 301, 321, 278 P.3d 501, 515 (2012) (explaining that "clear and unambiguous [language in a] contract will be enforced aswritten").

4While the parties agree they contemplated that Craig would have to obtain a loan to make the property equalization payment, they also agree

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determinations). Finally, we are not persuaded by Craig's arguments that he, not Cristina, was the prevailing party, as the district court granted Cristina's request to enforce the MSA and it denied each of Craig's requests.5 See Chowdhry v. NLVH, Inc., 109 Nev. 478, 485-86, 851 P.2d 459, 464 (1993) ("A plaintiff may be considered the prevailing party for attorney's fee purposes if it succeeds on any significant issue in litigation which achieves some of the benefit sought in bringing the suit."). Accordingly, we affirm the district court'sjudgment in Docket No. 83412.

In Docket No. 84077, Cristina appeals from the district court's order denying her motion for attorney fees and costs. Reviewing de novo,
we conclude that the district courterredwhen it reliedon NRCP 54(d)(2)(C) in denying Cristina's motion. See Pardee Homes ofNev. v. Wolfram, 135 Nev. 173, 176, 444 P.3d 423, 425-26 (2019) (explaining that this court reviews attorney fees decisions de novo when the matter implicates questions oflaw). While the district court iscorrect that NRCP 54(d)(2)(C) prohibits it from extendingthe time for a party tofile a motion for attorney fees after the thne to do sohasexpired, Cristina timely filed her motion for feesbefore trial. Because Cristina's motion for attorney fees and costs was timely filed, NRCP 54(d)(2)(C) did not constrain the district court's ability to extend the deadline for Cristina tofile her supportingmemorandum and

that Craig obtaining the loan was not a condition precedent to him paying Cristina by the deadline set in the MSA.

5We decline Cristina's request to impose sanctions on Craig for providing an inadequate appendix.

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### related documents.° See NRCP 54(d)(2)(C) ("The court may not extend the

time for filing the motion after the time has expired." (emphasis added)). Accordingly, we reverse the district court's order denying Cristina her attorney fees and costs and remand for the court to consider whether to extend the deadline for Cristina to file her memorandum. Based on the foregoing, we

ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent withthis order.7

, C.J. Parraguirre

J. Cadish , Sr.J.

cc: Hon. Rebecca Burton, DistrictJudge, Family Court Division Willick Law Group McAvoyAmaya & Revero, Attorneys Eighth District Court Clerk

°Given our conclusion, we need not reach Cristina's remaining arguments.

7

### The Honorable Mark Gibbons, Senior Justice, participated in the decision ofthis matter under a generalorder ofassignment.

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