132 Nev., Advance Opinion 1/45`f 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

MARK ANDERSON, 

Appellant, 

vs. 

SOPHIA SANCHEZ, 

Respondent. 

No. 62059 

FILED 

APR 2 8 2016 

IE K. LINDEMAN 

EMbreDURT 

BY 

DEPUTY CLERK 

SUPREME COURT 

OF 

NEVADA 

Appeal from a district court divorce decree. Fifth Judicial 

District Court, Nye County; Kimberly A. Wanker, Judge. 

Affirmed. 

The Abrams & Mayo Law Firm and Vincent Mayo, Las Vegas, 

for Appellant. 

Law Office of Daniel Marks and Daniel Marks and Christopher L. 

Marchand, Las Vegas, 

for Respondent. 

BEFORE PARRAGUIRRE, C.J., HARDESTY, DOUGLAS, CHERRY, 

SAITTA, GIBBONS and PICKERING, JJ. 

OPINION 

PER CURIAM: 

In this appeal, appellant seeks to set aside the parties' 

property settlement agreement incorporated into the divorce decree on the 

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ground of mutual mistake and to join his sister as a third party to the 

action because she allegedly had an unresolved interest in certain real 

property, which was distributed as a community asset under the 

settlement agreement. We conclude that there was no mutual mistake 

because the parties were aware at the time they negotiated the settlement 

agreement of the facts supporting the sister's claim of interest in the 

property. Thus, appellant was not entitled to set aside the property 

settlement agreement and his request to join his sister in the action was 

properly denied. Accordingly, we affirm the divorce decree. 

BACKGROUND 

In 2012, appellant Mark Anderson filed a complaint for 

divorce from respondent Sophia Sanchez. The parties agreed to mediation 

before a retired district court judge to discuss the distribution of their 

assets and debts. At issue were several pieces of real property, including a 

home located on East Wilson Avenue in Orange, California (Wilson 

property). Both parties were represented by independent legal counsel 

during the mediation, reached a settlement agreement resolving their 

issues, and signed a written Memorandum of Understanding (MOU) 

memorializing their agreement. As to the Wilson property specifically, the 

MOU stated that it was owned by the parties' trust and they agreed that 

the property would be awarded to Mark in exchange for a $75,000 

payment to Sophia from Mark's retirement account, representing half of 

the property's net value. In the MOU, the parties acknowledged that they 

had carefully read the document, that it accurately reflected their 

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agreement, and that each voluntarily signed it without undue influence or 

coercion and agreed to be contractually bound by its terms The parties 

initialed each page of the MOU and signed it at the end. 

When Mark filed a notice stating his intent to withdraw and 

revoke his signature from the MOU, Sophia moved to enforce it, arguing 

that the settlement agreement was valid and the parties had agreed to be 

contractually bound by its terms. Mark, in turn, moved to set aside the 

MOU as unenforceable, citing NRCP 60(b), and arguing that his sister 

Cheryl Parr had an ownership interest in the Wilson property. Although 

acknowledging that he and Sophia held title, Mark alleged that they had a 

prior oral agreement with Cheryl, under which Cheryl transferred title to 

Mark and Sophia for the purpose of facilitating loans needed to renovate 

the residence. He further alleged that once the loans were paid off from 

rental income generated by the property, Mark and Sophia had agreed to 

transfer title back to Cheryl. Consequently, Mark argued that he and 

Sophia were merely holding title to the Wilson property for Cheryl's 

benefit under a resulting or constructive trust theory, and because the 

parties lacked authority to enter into an agreement affecting property 

owned by Cheryl, the MOU as to the Wilson property should be set aside 

as void. To support his position, Mark provided offers of proof including 

trust documents and affidavits or other statements indicating knowledge 

of this arrangement between the parties and Cheryl. Mark also requested 

to join Cheryl in the divorce action and amend the pleadings to reflect her 

ownership rights in the Wilson property. In response, Sophia argued that 

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she and Mark undisputedly held title to the Wilson property, the MOU 

was an enforceable settlement agreement, and Cheryl lacked standing to 

join the action. 

After hearing argument, the district court ruled that the MOU 

was enforceable under Nevada law and denied the request to join Cheryl 

in the action.' On the record, the court observed that Mark and Sophia 

were legal owners of the property and any circumstances creating a 

constructive trust in Cheryl's favor were known to them. The court 

entered the divorce decree, which adopted the parties' MOU and ordered 

the property to be divided in accordance with their agreement. 

Mark filed this appeal from the decree, and we transferred the 

case to the court of appeals. That court reversed and remanded as to the 

disposition of the Wilson property, concluding that the district court 

should have conducted an evidentiary hearing to decide the joinder issue 

before adjudicating the parties' property pursuant to the settlement 

agreement. We granted Sophia's petition for review and withdrew the 

court of appeals' opinion. 

DISCUSSION 

The present dispute requires us to examine the creation and 

enforceability of the parties' property settlement agreement. Mark 

contends that the district court should have set aside the MOU based on 

the parties' mutual mistake that the Wilson property was community 

'Cheryl also moved to intervene below, but the district court denied 

her motion and she was never made a party to the action. Thus, Cheryl is 

not a party to this appeal. She did not file a separate writ petition 

challenging the decision on intervention. 

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property subject to division. He argues that both he and Sophia shared a 

misconception during negotiations that title to the Wilson property in 

their name supplanted Cheryl's ownership interest and they were 

unaware of how a resulting or constructive trust in Cheryl's favor could 

affect their rights in, and authority to, dispose of the Wilson property. 

An agreement to settle pending divorce litigation constitutes a 

contract and is governed by the general principles of contract law. 

Grisham v. Grisham, 128 Nev., Adv. Op. 60, 289 P.3d 230, 234 (2012); see 

also DCR 16 (requiring an agreement or stipulation between the parties to 

be in writing or entered into the minutes in the form of an order). 

Contract interpretation generally presents a question of law subject to de 

novo review. Grisham, 128 Nev., Adv. Op. 60, 289 P.3d at 236. Whether a 

contract exists is a question of fact, however, and this court will defer to 

the district court unless the factual findings are clearly erroneous or not 

supported by substantial evidence. Id. 

An enforceable contract requires "an offer and acceptance, 

meeting of the minds, and consideration." May v. Anderson, 121 Nev. 668, 

672, 119 P.3d 1254, 1257 (2005). A mutual mistake may be grounds to 

equitably rescind a contract or to render a contract void. Tarrant v. 

Monson, 96 Nev. 844, 845, 619 P.2d 1210, 1211 (1980). "Mutual mistake 

occurs when both parties, at the time of contracting, share a misconception 

about a vital fact upon which they based their bargain? Gen. Motors v. 

Jackson, 111 Nev. 1026, 1032, 900 P.2d 345, 349 (1995). 

We conclude that Mark's argument regarding mutual mistake 

is unavailing. It was undisputed that Mark and Sophia held title to the 

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Wilson property through a trust at the time they entered into the MOU. 

Holding title constitutes "the legal right to control and dispose of 

property." Hamm v. Arrowcreek Homeowners' Ass'n, 124 Nev. 290, 298, 

183 P.3d 895, 902 (2008) (quoting Title, Black's Law Dictionary (8th ed. 

2004)). It was also undisputed that the parties were aware of the facts 

supporting Cheryl's purported interest in the Wilson property when they 

entered into the MOU. Indeed, Mark represented in his motion to set 

aside that the parties had always known the Wilson property belonged to 

Cheryl and he attached offers of proof to support that position. Thus, the 

parties' had no shared misconception of a vital fact concerning the Wilson 

property. See Gen. Motors, 111 Nev. at 1032, 900 P.2d at 349. 

Despite his knowledge, Mark did not include in his pleadings 

any allegations as to Cheryl's interest, and he ultimately signed the MOU 

reflecting that he and Sophia were the sole holders of title to the Wilson 

property and agreeing to a specific division between them. Both parties 

were represented by independent legal counsel and engaged in the 

negotiations before a retired district court judge before signing the written 

MOU and each declared that they were "of sound mind and mental 

capacity to understand the nature and affect of [the] agreement." Both 

parties acknowledged that the MOU "represents what each believes to be 

a fair and reasonable resolution of the issues, and each agrees to be 

contractually bound by its terms." 

Even assuming, as Mark now argues, that the parties were 

unaware or misinformed of the legal effect Cheryl's purported interest had 

on their disposition of the Wilson property, mutual mistake is not grounds 

for rescission when the party bears the risk of mistake. Land Baron Inv., 

Inc. v. Bonnie Springs Family LP, 131 Nev., Adv. Op. 69, 356 P.3d 511, 

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517 (2015). More specifically, "Mb the party is aware at the time he enters 

into the contract 'that he has only limited knowledge with respect to the 

facts to which the mistake relates but treats his limited knowledge as 

sufficient," the court will allocate the risk of mistake to that party. Id. 

(quoting Restatement (Second) of Contracts § 154 cmt. b (Am Law Inst. 

1981)); see Restatement (Second) of Contracts § 151(b) (observing that the 

law in effect at the time of the contract is "part of the total state of facts"). 

If Mark did not have sufficient knowledge of the legal consequences of any 

oral agreement with Cheryl, he was aware of the facts underlying his 

claim that the Wilson property was the subject of an equitable trust and 

therefore not appropriate for distribution under the MOU, and he could 

have pursued the issue further rather than agreeing to the settlement. 

See Restatement (Second) of Contracts § 154(c) (indicating that the court 

may allocate the risk of mistake to a party when it is reasonable under the 

circumstances); cf. Janusz v. Gilliam, 947 A.2d 560, 567 (Md. 2008) 

(holding that a mutual mistake of law was not grounds to rescind a 

property settlement agreement particularly where both parties were 

represented by counsel during the negotiations and were on equal footing 

to know or learn of the relevant law). Thus, Mark bore the risk of mistake 

when he entered into the MOU despite being aware of his limited 

knowledge. Accordingly, the district court's decision to enforce the MOU is 

supported by substantial evidence. Grisham, 128 Nev., Adv. Op. 60, 289 

P.3d at 236. 

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Parraguirre 

Hardesty 

Gibbons 

Finally, because we conclude that the MOU was enforceable 

with respect to the parties' disposition of the Wilson property, Mark's 

request to join Cheryl in the action for the purpose of adjudicating any 

interest she may have in the property was properly denied. For the 

reasons set forth herein, the district court's divorce decree is affirmed. 

J. )ca's J. 

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