SUPREME COURT 

OF 

NEVADA 

132 Nev., Advance Opinion 36 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

EDWIN GRIFFITH, 

Appellant, 

vs. 

GABRIELA GONZALES-ALPIZAR, 

Respondent. 

No. 67772 

FILED 

MAY 26 2016 

TRAC1E K LtNDEMAN 

CLE%0F UPREME COURT 

BY 

, > Y 

DEPUTY "" 

Appeal from a post-divorce decree order granting attorney fees 

pendente lite for appeal costs. Second Judicial District Court, Family 

Court Division, Washoe County; Egan K. Walker, Judge. 

Affirmed. 

Jeffrey Friedman, Reno, 

for Appellant. 

Richard F. Cornell, Reno, 

for Respondent. 

Kunin & Carman and Michael P. Carman and Israel L. Kunin, Las Vegas, 

for Amicus Curiae. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, PARRAGUIRRE, C.J.: 

Under NRS 125.040(1)(c), a district court has discretion in a 

divorce suit to require one party to pay an amount of money necessary to 

assist the other party in carrying on or defending the suit. In this appeal, 

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we are asked to determine whether this statute grants the district court 

subject matter jurisdiction to award a party attorney fees pendente lite to 

defend against an appeal. We hold that a district court does have 

jurisdiction to award attorney fees pendente lite for the costs of an appeal 

pursuant to NRS 125.040. Furthermore, we hold that the district court 

did not abuse its discretion in awarding such fees in this case. 

Accordingly, we affirm the district court's order." 

FACTS AND PROCEDURAL HISTORY 

Appellant Edwin Griffith and respondent Gabriela GonzalesAlpizar have been immersed in divorce litigation for almost ten years. In 

2007, both parties obtained divorce decrees: Gonzales-Alpizar from a Costa 

Rica court, and Griffith from a Nevada court. Much litigation ensued, and 

in October 2014, Gonzales-Alpizar received a judgment for child support 

arrears and penalties against Griffith in Nevada, as well as an award of 

attorney fees. Griffith appealed the order, arguing that attorney fees 

should not have been awarded and that the underlying Costa Rica order 

was fraudulent. That appeal is currently before this court as Docket No. 

66954. 

In the meantime, Gonzales-Alpizar filed a motion for attorney 

fees pendente lite in the district court to enable her to defend the appeal in 

Docket No. 66954. The district court granted Gonzales-Alpizar's motion 

and awarded her $15,000 for attorney fees pendente lite, and Griffith filed 

this appeal. This court ordered that briefing in Docket No. 66954 remain 

'Pursuant to NRAP 34(f)(1), we have determined that oral argument 

is not warranted in this appeal. 

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suspended until the issue concerning the district court's award of attorney 

fees pendente lite was resolved. 

DISCUSSION 

In this appeal, Griffith argues that the district court did not 

have subject matter jurisdiction to award attorney fees pendente lite for 

the costs of an appeal, and, even assuming it did, it abused its discretion 

in awarding such fees in this case. We disagree. 

"Subject matter jurisdiction is a question of law subject to de 

novo review." Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 

(2009). Furthermore, if "a statute's language is clear and unambiguous, it 

must be given its plain meaning, unless doing so violates the spirit of the 

act." D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 476, 

168 P.3d 731, 737 (2007) (internal quotation marks omitted). "A statute is 

ambiguous if it is capable of being understood in two or more senses by 

reasonably well-informed persons." Id. "When construing an ambiguous 

statute, legislative intent is controlling, and we look to legislative history 

for guidance." Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 

1298, 1302, 148 P.3d 790, 793 (2006). "Finally, we consider the policy and 

spirit of the law and will seek to avoid an interpretation that leads to an 

absurd result." Id. (internal quotation marks omitted). 

NRS 125.040 reads in relevant part as follows: "1. In any suit 

for divorce the court may, in its discretion. . . require either party to pay 

moneys necessary to assist the other party in accomplishing one or more of 

the following: . . . (c) To enable the other party to carry on or defend such 

suit." (Emphases added.) 

Fees awarded pursuant to NRS 125.040(1)(c) are considered 

"pendente lite" because they cover the costs of the suit while the divorce 

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action is pending. Pendente Lite, Black's Law Dictionary (10th ed. 2014) 

("Pendente lite" is Latin for "while the action is pending."); see Thompson 

v. First Judicial Dist. Court, 100 Nev. 352, 354, 683 F'.2d 17, 19 (1984) 

(stating "evidence of the legislature's intent may be gleaned from the title 

of the act by which the statute was enacted"); see also 1975 Nev. Stat., ch. 

209, at 246 ("AN ACT relating to divorce; providing allowances during 

pendency of action for . . . costs of suit. . ."). 

Although we conclude the phrase "suit for divorce" is 

ambiguous, as it is unclear from the text of the statute whether the "suit 

for divorce" includes appellate proceedings, we also conclude that this 

court's precedent resolves the ambiguity and a divorce action is still 

pending once an appeal has been filed. See Braddock v. Braddock, 91 Nev. 

735, 743, 542 P.2d 1060, 1064 (1975) (stating a divorce action "is pending 

from the time of filing the complaint until its final determination on 

appeal"); cf. Fleming v. Fleming, 58 Nev. 179, 185, 72 P.2d 1110, 1112 

(1937) (stating that, with regard to the 1929 equivalent of NRS 125.040, a 

divorce action remains pending after the entry of a divorce decree for some 

purposes, such as modifications to child custody). Furthermore, such an 

interpretation of NRS 125.040 serves public policy in ensuring that 

underprivileged parties have access to justice in Nevada courts and may 

obtain appellate review in divorce proceedings. See, e.g., Sargeant v. 

Sargeant, 88 Nev. 223, 227, 495 P.2d 618, 621 (1972) (stating that parties 

in a divorce action should "be afforded [their] day in court without 

destroying [their] financial position" and that they "should be able to meet 

[their] adversary in the courtroom on an equal basis"). Therefore, we hold 

NRS 125.040 grants district courts subject matter jurisdiction to award 

attorney fees pendente lite for the costs of an appeal. 

SUPREME COURT 

OF 

NEVADA 4 

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Moreover, we conclude Griffith's reliance on Lake v. Lake, 17 

Nev. 230, 30 P. 878 (1882), and Korbel v. Korbel, 101 Nev. 140, 696 P.2d 

993 (1985), is misplaced. The issue before the court in Lake was whether 

this court, not the district court, had jurisdiction to award attorney fees 

pendente lite. See Lake, 17 Nev. at 233-34, 30 P. at 879. Furthermore, the 

Lake court did not discuss Section 220 of the Compiled Laws of the State 

of Nevada, the nineteenth century equivalent to NRS 125.040. See 1 Nev. 

Compiled Laws § 220 (Bonnifield and Healy, 1873) ("In any suit for 

divorce now pending, or which may hereafter be commenced, the Court or 

Judge may, in its discretion. . . require the husband to pay such sums as 

may be necessary to enable the wife to carry on or defend such suit. . . ."). 

To the extent Lake discussed a district court's authority to award attorney 

fees pendente lite, we conclude such dictum is unpersuasive. 

As for Korbel, although this court stated that NRS 125.040 

had "no application to an appeal," no analysis was provided and such a 

holding contravenes both this court's precedent and the policy underlying 

the statute. Korbel, 101 Nev. at 141, 696 P.2d at 994. Furthermore, 

Korbel is materially distinct from this case, as Korbel dealt with attorney 

fees for a previous appeal, not a prospective appeal. Id. at 142, 696 P.2d 

at 994; see Levinson v. Levinson, 74 Nev. 160, 161, 325 P.2d 771, 771 

(1958) ("That an order for allowances under [NRS 125.0401 must operate 

prospectively has been well established in this state. Expenses incurred 

and attorneys' services performed in the past are not proper 

considerations."). 

Finally, we conclude that the district court did not abuse its 

discretion in awarding attorney fees pendente lite in this case. See Miller 

v. Wilfong, 121 Nev. 619, 622, 119 P.3d 727, 729 (2005) (stating "an award 

5 
of attorney fees in divorce proceedings will not be overturned on appeal 

unless there is an abuse of discretion by the district court"). Although a 

party need not show "necessitous circumstances" in order to receive an 

award of attorney fees under NRS 125.040, Sargeant, 88 Nev. at 227, 495 

P.2d at 621, Gonzales-Alpizar presented evidence that she earns $200 per 

month. And despite the fact that the financial statement contained in the 

record is several years old, the district court concluded that "Mr. Griffith's 

financial records and previous testimony in this matter reveal assets 

and/or earnings sufficient to warrant pendent[e] lite fees. . . ." Griffith's 

financial records and hearing transcripts have not been brought up on 

appeal, and thus, we assume the evidence supports the district court's 

determinations. See Leeming v. Leeming, 87 Nev. 530, 532, 490 P.2d 342, 

343 (1971) ("As appellant has not brought up the hearing transcript, 

we must assume the evidence supported the court's implicit 

determination{ I . . . that the $2,500 awarded as suit money was needed so 

respondent might pay her counsel without diminishing the care the court 

contemplated for the children."). 2 

CONCLUSION 

We hold that NRS 125.040 grants district courts subject 

matter jurisdiction to award attorney fees pendente lite for the costs of an 

appeal. Furthermore, we conclude that the district court did not abuse its 

2Although we conclude that the district court did not abuse its 

discretion in this instance, we caution that in the future, courts should 

make more explicit factual findings regarding the financial condition of 

the parties when awarding attorney fees pendente lite. 

SUPREME COURT 

OF 

NEVADA 

6 

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J. 

discretion in awarding such fees in this case. Accordingly, we affirm the 

order of the district court. 

I 0--L-It C.J. 

Parraguirre 

We concur: 

/jet,t. J. 

Hardesty 

I Or& J. 

Douglas 

Gibbons 

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