Appeals

The WILLICK LAW GROUP maintains an active practice in appeals of family law cases, and has done so for more than 25 years. We sometimes appeal from, or defend against, cases in which we were trial counsel. More often, we are retained to prosecute or defend appeals that were handled by other law firms at the trial level. We are admitted to practice in the Nevada Supreme Court, the Federal Ninth Circuit Court of Appeals, and the United States Supreme Court. Some of the decisions in which we prevailed on appeal are referenced below, with links to the decisions and orders, and to our briefs in those cases.

The lawyers of the Willick Law Group, and particularly Marshal Willick, are frequently asked to draft “Friend of the Court,” or Amicus, Briefs for the Nevada Supreme Court on family law topics on behalf of the State Bar of Nevada Family Law Section. We draft these briefs either alone or in conjunction with other attorneys. Some of those briefs, on a number of topics, are posted at the bottom of this page.

Since Nevada now has an intermediate court of appeals, all family law appeals will go directly from the trial court to the intermediate court of appeals. Only cases of first impression or cases which would result in the termination of parental rights will got to the Nevada Supreme Court. Appeals are generally, by their nature, lengthy, expensive propositions that should not be entered into lightly. There is a “fast track” program for custody cases that is intended to speed those appeals, but even with that acceleration it is not unusual for them to take two years or more, and cases that are not “accelerated” can and do take even longer.

An appeal can be brought from a final order (such as a Decree of Divorce) or from certain kinds of orders after final judgment, in post-judgment proceedings. Not every order can be appealed; preliminary orders are generally non-appealable, and certain kinds of post-judgment orders cannot be appealed.

A party who wishes to challenge a final order that may be appealed files a “Notice of Appeal.” This is jurisdictional; in other words, if not done within a certain time limit (usually, 30 days after service of notice of entry of judgment) no appeal can be brought at all. Sometimes, but not always, the order being appealed from can be “stayed” during the time it is on appeal, but even where this is possible it usually requires the posting of a bond to secure the judgment, and the bond itself can be very expensive.

The next important step is the holding of an appellate settlement conference, where both parties and their attorneys appear and have one final chance to settle the case before proceeding with the appeal. This appellate settlement program is relatively new, having been implemented to take some of the crushing backlog off of the Nevada Supreme Court, and it has surprised even its proponents by just how many cases actually settle at that stage. If the case does settle, then the appeal ends, a final order is entered, and the appeal is dismissed. Still, no one can count on their case settling at the conference stage; anyone initiating an appeal should be prepared to see it through to the end.

If the appeal does not settle, then the person appealing (“Appellant”) will have a limited amount of time within which to assemble an Appendix containing all relevant papers from the trial court, and submit that appendix, along with all relevant transcripts and an Opening Brief, to the Nevada Supreme Court. If there were lengthy proceedings requiring transcription, the costs just of preparing the Appendix and transcripts can be many thousands of dollars, before the attorney even starts to write the Opening Brief.

Next, the party against whom the appeal was brought (“Respondent”) gets a chance to supplement the Appendix with any additional papers that party feels should have been but were not submitted, and to respond to the Appellant’s arguments, and raise any additional arguments believed relevant, in an Answering Brief.

Finally, the Appellant gets to respond to the Answering Brief, in a final Reply Brief.

Some cases are resolved just on the Appendix and briefs. The majority go to some form of oral argument, either before a three-Justice panel of the Nevada Supreme Court in Las Vegas or Carson City, or before the entire seven-Justice Court at the same time (this is called an en banc argument).

The Supreme Court has developed a program through which members of the public can view an Appeal while it is in progress.  You can reach the portal to view arguments in real time by clicking this link: Nevada Supreme Court Streaming Video.

At some point after oral argument, a decision is made by the Court, rendered either in a published Opinion, or in an unpublished Order. The published opinions are collected in annual volumes, and become precedent for future legal decisions. Most decisions are not published, so of course we have participated in many appeals that did not result in published opinions.

Whether they are ultimately resolved at a settlement conference, on the briefs and appendix, or after oral argument, appellate cases require meticulous attention to detailed organization and rendition of the facts, comprehensive research into all applicable areas of law, and a thorough and scholarly legal argument.

Ultimately, litigation of appeals is a painstaking and difficult process, and it is perhaps the most challenging and technically difficult area of family law. At any given time, the Willick Law Group typically has two to six appeals pending at some stage of proceeding, and we intend to continue doing so as appropriate cases present themselves. We are proud of the record of successes we have enjoyed in the Nevada Supreme Court, and in other appellate courts, both in unpublished orders, and in published decisions, including the following:

In Carlson v. Carlson, 108 Nev. 358, 832 P.2d 380 (1992), the Nevada Supreme Court reversed, at our urging, a trial court order refusing to set aside a property distribution under NRCP 60(b), where a private pension had been greatly undervalued in the original divorce proceedings. The Opinion required our client receive a fair distribution of the community property, and required entry of a QDRO so that our client received the survivorship benefits.

In McMonigle v. McMonigle, 110 Nev. 1407, 887 P.2d 742 (1994), we obtained reversal of a decision that had taken custody of a young girl from our client, the custodial mother. The Nevada Supreme Court decision held that the moving party in a custody proceeding must show that the circumstances of the parties have materially changed “since the most recent custodial order,” and events that took place before that proceeding are inadmissible to establish a change of circumstances.

In Hermanson v. Hermanson, 110 Nev. 1400, 887 P.2d 1241 (1994) the Nevada Supreme Court accepted our argument that the husband, who had been named the father of the minor child by the trial court, should be removed from the child’s birth certificate, overcoming difficult and technical issues dealing with equitable estoppel, paternity, presumptions, and conflicts of laws.

In Waltz v. Waltz, 110 Nev. 605, 877 P.2d 501 (1994), the Nevada Supreme Court agreed with our argument that the award to the wife of “permanent alimony,” as used in the parties’ divorce decree, was intended to survive the wife’s remarriage, where the alimony payments were, in substance, a property settlement, put into place to compensate the wife for the wife’s interest in husband’s military pension, which could not be directly paid to her by reason of technical military regulations.

In Garrett v. Garrett, 111 Nev. 972, 899 P.2d 1112 (1995), the Nevada Supreme Court accepted our position and affirmed a decision that expenses of visitation incurred by the non-custodial parent as the result of the custodial parent’s move from the jurisdiction can be considered by the court pursuant to NRS 125B.080(9)(i) to justify a downward deviation or an offset against the amount of child support specified by the formula.

In Dimick v. Dimick, 112 Nev. 402, 915 P.2d 254 (1996), the Nevada Supreme Court accepted our argument that the husband’s signature of both spouses’ names on various documents did not actually transfer any property interest to the wife, and that the trial court had an absolute duty to return to our client his premarital property.

In Krone v. Krone, No. 27235 (ODA May 20, 1996), we successfully defended an award of arrearages for a McCarty-gap former military spouse, and prevented the opponent from shortchanging the former spouse by over-withoholding income taxes from the military retired pay.

In Epstein v. Epstein, 113 Nev. 1401, 950 P.2d 771 (1997), the Nevada Supreme Court accepted our position on a number of procedural issues, finding that negotiations between parties are sufficient to constitute an appearance under the rules, that adequate notice must be given before default is taken, and that there is no requirement in divorce litigation for a “meritorious defense” to be established before the merits of a divorce case should be considered by the trial court.

In Williams v. Williams, No. 28364 (ODA January 23, 1998), we successfully defended the trial court’s distributions of assets and debts, denial of alimony, and significant award of attorney’s fees to our client who was injured by the other party’s misbehavior at the time of trial.

In Shydler v. Shydler, 114 Nev. 192, 954 P.2d 37 (1998), the Nevada Supreme Court agreed that the lower court had committed error in denying alimony to our client, the wife in a 17-year marriage in which she had been primarily responsible for raising two children, and the husband had enjoyed a very successful career in construction.

In Schraeder v. Schraeder, No. 28341 (ODA August 13, 1999), we successfully defended a distribution of military retirement benefits, award of survivorship benefits, alimony, and the division of property and debts we obtained at trial.

In Harwood v. Harwood, No. 31775 (ODA December 20, 1999), we successfully defended the attribution of value in a corporation under the Van Camp and Pereira standards, along with various other financial issues relating to real estate, income, and marital waste claims.

In Danielson v. Evans, 36 P.3d 749, 751-59 (Ariz. Ct. App. 2001), the Arizona Court of Appeals relied heavily on our amicus curia brief in finding that the Uniformed Services Former Spouses Protection Act does not bar relief to the former spouse when the military member spouse takes a disability award, and thus eliminates the retirement payments to the spouse. The court upheld an order requiring the former husband to pay his former wife the difference between the value of the retirement pay as it was envisioned at the time of the divorce and the reduced amount that she actually received as a result of his waiver.

In Vaile v. District Court, 118 Nev. 262, 44 P.3d 506 (2002), we succeeded in having the Nevada Supreme Court issue a Writ of Mandamus requiring the lower court to return the minor children to our client, in Norway, under the Hague Convention on the Civil Aspects of International Child Abduction, and declaring that the provisions in the divorce decree adjudicating custody and visitation were entered without subject matter jurisdiction and therefore void.

In Lofink v. Lofink, No. 34132 (ODA September 10, 2002), we successfully defended an award of child custody and support, lump-sum alimony, and distribution of retirement benefits and other property and debts that we had obtained upon remand and re-trial of the action.

In Wichert v. Wichert, Nos. 34357 & 34357 (Order of Remand, March 19, 2003), we successfully eliminated orders granting the former spouse an interest in property not properly considered marital or community, and reversed an unwarranted monetary award.

In Carmona v. Carmona, No. 35851 (ODA October 21, 2003), we successfully defended the award to the surviving spouse of the survivorship benefits payable under an ERISA-governed pension plan by way of constructive trust, overcoming claims of pre-emption. In later rounds of litigation in federal court, the two streams of survivorship benefits were split between the claimants, and the constructive trust was eliminated.

In Olvera v. Olvera, No. 38233 (Order of Remand, October 29, 2003), we obtained reversal of a trial court order. The divorce decree required payments to the former spouse, who received them for many years until the member elected to receive military disability benefits, 25 years post-divorce, eliminating the spousal share. Reversing the district court, the Nevada Supreme Court ordered the member to make up all sums that his election caused to be diverted from the former spouse to him, so that our client was made whole.

In Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727 (2005), the Nevada Supreme Court affirmed the award of attorney’s fees to counsel for our client, who was represented Pro Bono, finding “the fact that a government institution or a private charity has provided legal assistance should not absolve other responsible parties of their financial obligations.” Further, “To impose the burden of the cost of litigation on those who volunteer their services, when the other party has the means to pay attorney fees, would be unjust.” An award of fees in a paternity case is permissible under NRS 126.171. In any award of fees in a pro bono case, the award must identify the legal basis for the award, and be supported by affidavits or other evidence that meets the factors set out in prior attorney’s fees cases.

In Cuisenaire v. Mason, 122 Nev. 43, 128 P.3d 446 (2006), the Nevada Supreme Court affirmed the award of prospective child support, and the award of retrospective child support, and remanded for resolution of the survivor’s benefits issues, as we requested. Unfortunately, the opposing party died during the pendency of the case, and the Court therefore declined to address the contradiction in Nevada case law regarding partition of omitted military retirement benefits.

In Simon v. McClure, No. 50740 (Order of Remand, December 16, 2009), we obtained reversal of a trial court order that had dismissed our motion to reduce child support. At our request, the Nevada Supreme Court reversed the trial court’s order, and remanded for our client’s motion to be able to be heard and resolved on its merits.

In Friedman v. 8th Judicial District Court, 127 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 75, Nov. 23, 2011), we obtained reversal of a district court Order.  The Supreme Court adopted our position that the UCCJEA provisions governing continuing exclusive jurisdiction trump any purported agreement to the contrary.

Some of the Willick Law Group’s Amicus Briefs

 CLE Materials on Appellate Litigation