Ward v. Hoobler

misrepresented his ability to pay half of the community debt and that appellant would not have agreed to waive spousal support if respondent had been truthful about his financial situation. The district court denied appellant's motion, concluding that no spousal support could be awarded because it had been waived in the divorce decree and finding that the bankruptcy stay prevented it from proceeding with the remaining issues. On review of appellant's opening brief and the record, we conclude that the district court abused its discretion in denying appellant's motion to modify or set aside the divorce decree. See Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996) (explaining that this court will not disturb the denial of a motion to set aside a judgment under NRCP 60(b) absent an abuse of discretion). In particular, the district court abused its discretion by concluding that appellant had waived alimony without considering the merits of appellant's argument that NRCP 60(b) relief was warranted because respondent had fraudulently misrepresented his ability to pay his share of the community debts and because she would not have agreed to waive spousal support if not for that misrepresentation. See Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992) (providing that a district court abuses its discretion when it fails to apply the correct legal standard); see also, generally Cavell v. Cavell, 90 Nev. 334, 337, 526 P.2d 330, 331-32 (1974) (recognizing that a timely NRCP 60(b) motion may be appropriate to set aside a divorce decree). Moreover, to the extent that appellant sought to create a spousal support obligation, the bankruptcy stay did not prevent the district court from addressing

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that issue.' See 11 U.S.C. § 362(b)(2)(A)(ii) (Supp. 2010) (providing that the automatic stay in bankruptcy actions does not stay "the commencement or continuation of a civil action or proceeding . . . for the establishment or modification of an order for domestic support obligations"); see also Shin v. Shin, 27 P.3d 398, 401 (Haw. 2001) (explaining that the automatic bankruptcy stay does not apply to the portion of the divorce action regarding alimony, maintenance, or support unless the party is attempting to collect alimony, maintenance, or support from the bankruptcy estate). Accordingly, we ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

(--ACetx- Hardesty

__put J. Parraguirre

J.

'While the district court properly concluded that it could not address the property distribution and the motion for contempt while the bankruptcy stay was in effect, we note that the district court incorrectly concluded that appellant had failed to request that her $4,000 debt to respondent be set aside, in her NRCP 60(b) motion.

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cc: Hon. Sandra L. Pomrenze, District Judge, Family Court Division Michael A. Root Michael Alan Hoobler Eighth District Court Clerk

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