CONRAD ROBERSON v. HEIDI ROBERSON HEIDI CORRALES (2025)

ORDER OF AFFIRMANCE

In these consolidated appeals, Conrad Roberson challenges post-divorce decree orders awarding attorney fees. Second Judicial District Court, Washoe County; Robert E. Estes, Senior Judge.

Conrad and respondent Heidi Roberson, n/k/a Heidi Corrales, were married and have two children together. Heidi filed for divorce in 2018 and extensive litigation between the parties ensued. The parties were divorced by a stipulated decree entered in October 2021. The parties participated in a post-divorce hearing pertaining to requests from Conrad to modify the decree and child custody. The district court denied Conrad's requests, and Conrad filed an appeal from that decision. See Roberson v. Roberson, 85635-COA, 2023 WL 7869084 (Nev. Ct. App. Nov. 15, 2023) (Order Affirming in Part, Reversing in Part, and Remanding).

While the prior appeal was pending and prior to appellate briefing, Heidi filed a motion in the district court in March 2023, seeking an award of $25,000 in pendente lite attorney fees to enable her to defend the appeal. Attached to her motion was a declaration from Heidi asserting that Conrad was currently behind on his obligations under the decree. In Heidi's counsel's affidavit, counsel noted that the appeal was removed from the settlement program with a briefing schedule imposed, and that Conrad's fast track statement in the pending appeal was due on March 27, with Heidi's response due within 21 days thereafter. Conrad filed an opposition. Subsequently, the district court granted Heidi's motion and awarded her $25,000 for pendente lite attorney fees. The court found that there was a financial disparity between the parties, as Heidi earns “$50,000 a year along with court-ordered child support and alimony,” while Conrad earns approximately $500,000 a year.

Conrad then filed a motion to alter or amend and for a stay of the order awarding pendente lite attorney fees. He argued that the district court failed to properly consider the parties’ respective financial situations, noting that his financial condition was impacted by the order requiring him to tender monthly payments to Heidi for alimony and child support. Thus, he asserted it was inequitable for him to pay the $25,000 award of pendente lite attorney fees. He also argued that the district court's award of pendente lite attorney fees was not tied to the prospective appellate work to be performed. Heidi filed an opposition arguing that Conrad failed to provide any grounds for the district court to alter or amend its ruling. She further asserted that Conrad's motion was brought in bad faith as he continued to refuse to pay the fees he was ordered to pay, and she therefore requested attorney fees pursuant to NRS 18.010(2)(b).

Thereafter, the district court denied the motion, finding that the request for $25,000 to fund the costs of appeal was not unreasonable. The court rejected Conrad's assertion that he was unable to pay. The court found there was no reason for Conrad to have failed to pay the $25,000 and no grounds to support his motion. Pursuant to NRS 18.010(2)(b), the court found that Heidi was the prevailing party and granted her request for an additional award of fees because Conrad's course of conduct, including his latest motion, was repeated bad faith. In a separate order, the district court awarded Heidi's fees in the amount of $10,975.32. These consolidated appeals followed.

On appeal, Conrad asserts that the district court improperly awarded Heidi pendente lite attorney fees for the purposes of appeal because the award was not based on the appellate work remaining to be performed and the district court did not assess the parties’ financial conditions. Conversely, Heidi asserts the district court properly awarded attorney fees for the appeal pursuant to NRS 125.040(l)(c) as the court considered the financial conditions of the parties.

This court reviews awards of attorney fees for an abuse of discretion. Chowdhry v. NLVH, Inc., 109 Nev. 478, 485, 851 P.2d 459, 464 (1993). A district court abuses its discretion when its findings are not supported by substantial evidence. Miller v. Miller, 134 Nev. 120, 125, 412 P.3d 1081, 1085 (2018). “In any suit for divorce the court may ․ require either party to pay moneys necessary ․ [t]o enable the other party to carry on or defend such suit.” NRS 125.040(1)(c). The court must consider the financial situation of each party before making such an order. NRS 125.040(2). Even so, “a party need not show necessitous circumstances in order to receive an award of attorney fees under NRS 125.040.” Griffith v. Gonzales-Alpizar, 132 Nev. 392, 395, 373 P.3d 86, 89 (2016) (internal quotation marks omitted). Attorney fees awarded under NRS 125.040(1)(c) are “pendente lite” because they cover fees in an ongoing divorce suit. See Levinson v. Levinson, 74 Nev. 160, 161, 325 P.2d 771, 771 (1958). Accordingly, attorney fees awarded pursuant to NRS 125.040 contemplate prospective expenses and should not reflect the attorney's work already performed or expenses already incurred. See id. We review an award of pendente lite attorney fees for an abuse of discretion.

Conrad first asserts that the pendente lite attorney fees award was not sufficiently tied to Heidi's need in defending against the pending appeal and prospective appellate work because appellate briefing was complete during the time the district court held a hearing on the matter. We disagree. In Levinson, the Nevada Supreme Court evaluated a district court's award of pendente lite attorney fees where a party filed a motion for pendente lite attorney fees, which was granted, and subsequently, before the trial could occur, a motion was made for an additional allowance of fees. Id. at 161-63, 325 P.2d at 771-72. The supreme court concluded that the subsequent motion was but a renewal of the original motion seeking review of the preliminary order, and determined that consideration of legal services performed by counsel during the time between the original order and subsequent motion for an additional allowance of fees was proper. Id. at 163, 325 P.2d at 772 (explaining “[t]his being so, the application for additional allowances was but a renewal of the original motion, seeking review by the court of its preliminary order and an examination of the suitability of such order in the light of the circumstances existing at the time of the review”). Thus, as explained in Levinson, the district court's consideration of an award for pendente lite attorney fees is evaluated from the time the motion seeking such fees is filed.

Here, after Conrad initiated the appeal in Docket No. 85635-COA and before appellate briefing was filed, Heidi moved for pendente lite attorney fees in the district court, requesting the court award her $25,000 to defend against the appeal. Therefore, the district court could award Heidi pendente lite attorney fees because the appeal was pending at the time Heidi's motion was filed. As reflected in the district court's order granting pendente lite attorney fees, the district court considered prospective appellate work in order to award fees and specifically stated that it was awarding Heidi $25,000 “to pay for the costs of participating in the appeal filed by Defendant.” See Griffith, 132 Nev. at 395, 373 P.3d at 88 (distinguishing a decision addressing attorney fees for a previous matter rather than a prospective appeal as was properly within the scope of NRS 125.040). Thus, the district court's award of pendente lite attorney fees was properly tied to prospective appellate work.

Moreover, we are unpersuaded by Conrad's assertions that the district court's findings as to the parties’ respective financial circumstances were insufficient. Specifically, the court found that Heidi earns “$50,000 a year along with court-ordered child support and alimony,” while Conrad earns approximately $500,000 a year. The court further found that no other evidence was provided pertaining to Conrad's income, and no objection was lodged to dispute the amount. Although Conrad asserts that the district court limited its consideration of the parties’ financial condition to their respective incomes, this is belied by the court's order which noted that Conrad had continued his medical practices and opened new businesses since the time of trial when the court initially evaluated his income, while Heidi was the primary caregiver for the children. He also asserts that the court did not sufficiently consider his payments to Heidi for alimony and child support, but this is belied by the district court's findings, as the court specifically recognized that Conrad pays Heidi and still concluding that there was a significant disparity in their incomes. Thus, the court's findings demonstrate that it sufficiently considered the parties’ financial circumstances before awarding attorney fees pursuant to NRS 125.040. See Martin v. Martin, 138 Nev. 786, 796, 520 P.3d 813, 821 (2022) (explaining that “[t]he district court properly considered the financial circumstances of each of the parties before ordering attorney fees pursuant to NRS 125.040, and the record supports its findings as to the income disparity between the parties”).

Conrad nevertheless submits that the $25,000 attorney fees award was excessive because Heidi earns sufficient income and did not need the award of pendente lite attorney fees. But we are not persuaded by this argument because pursuant to NRS 125.040 and Griffith, 132 Nev. at 395, 373 P.3d at 89, it was within the district court's discretion to award her attorney fees after the court found a significant income disparity between the two parties. Likewise, the amount of pendente lite attorney fees to award was also within the district court's discretion. See Griffith, 132 Nev. at 395, 373 P.3d at 89 (explaining that “an award of attorney fees in divorce proceedings will not be overturned on appeal unless there is an abuse of discretion by the district court” (internal quotation marks omitted)). Additionally, Conrad avers that the district court appeared to have improperly considered how contentious the litigation was between the parties when awarding the pendente lite attorney fees, referring to statements by the district court during the hearing noting how long the parties had been litigating the action and the level of animosity between the parties. However, as noted above, the district court's findings with respect to the disparity between the parties’ financial conditions supported an award of pendente lite attorney fees. Thus, we ascertain no abuse of discretion in the court's decision to award $25,000 in pendente lite attorney fees as the district court properly considered the financial circumstances of each of the parties before ordering attorney fees pursuant to NRS 125.040, and the record supports its findings as to the income disparity between the parties. Thus, we affirm the district court order awarding pendente lite attorney fees to Heidi.

Next, we address Conrad's arguments concerning the award of attorney fees pursuant to NRS 18.010(2)(b). Under NRS 18.010(2)(b), the district court may award attorney fees to a “prevailing party” when “the court finds that the claim ․ of the opposing party was brought or maintained without reasonable ground or to harass the prevailing party.” “The court shall liberally construe the provisions of [NRS 18.010(2)(b)] in favor of awarding attorney's fees in all appropriate situations,” and “[i]t is the intent of the Legislature that the court award attorney's fees pursuant to [NRS 18.010(2)(b)] ․ in all appropriate situations to punish for and deter frivolous or vexatious claims and defenses.” NRS 18.010(2)(b). There must be evidence in the record supporting the proposition that a claim was brought or maintained without reasonable grounds. Chowdhry, 109 Nev. at 486, 851 P.2d at 464. “For purposes of NRS 18.010(2)(b), a claim is frivolous or groundless if there is no credible evidence to support it.” Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009).

Here, the district court found that Heidi was the prevailing party because the court denied Conrad's motion to alter or amend the pendente lite award. The court also found Conrad brought his motion despite the lack of any evidence to support his position. The court further found that Conrad “engaged in self-help, continues to play litigation games, and unnecessary[ily] continues to inflict cost, stress and drama into this case.” Based on these findings, the district court found that Conrad's claims were brought without reasonable grounds. The court further found that the lack of evidence supporting Conrad's motion demonstrated that he pursued his claims in bad faith, and Conrad's bad faith actions also supported Heidi's request for additional attorney fees. See Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993) (“[I]f the record reveals that counsel or any party has brought, maintained, or defended an action in bad faith, the rationale for awarding attorney fees is even stronger.” (citation omitted)).

Because the district court's findings are supported by substantial evidence, we conclude the district court did not abuse its discretion in finding that Conrad's claims were brought without reasonable grounds. See Bergmann v. Boyce, 109 Nev. 670, 675, 856 P.2d 560, 563 (1993) (explaining that an analysis under NRS 18.010(2)(b) “depends upon the actual circumstances of the case rather than a hypothetical set of facts favoring plaintiffs averments”), superseded by statute on other grounds as recognized in In re DISH Network Derivative Litig., 133 Nev. 438, 451 n.6, 401 P.3d 1081, 1093 n.6 (2017).

Accordingly, we

ORDER the judgment of the district court AFFIRMED.¹

Bulla, C.J.

Gibbons, J.

Westbrook

FOOTNOTES

1.   We deny Heidi's request for NRAP 38 sanctions.