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Rodriguez v. Rodriguez11/30/2000
In this appeal we are asked if marital misconduct may be considered in determining an award of alimony.
Appellant Glenda M. Rodriguez and respondent Antonio Rodriguez were married on September 10, 1973. Antonio filed for divorce on September 21, 1994. The matter proceeded to trial in January 1996. At the time of trial, Antonio was the catering director for the Sands Hotel in Las Vegas, earning at least $75,000.00 a year. Glenda was employed as a high school hall monitor for the Clark County School District. She earned $10.11 per hour and worked thirty-five hours a week during the nine-month school year. Her annual income was approximately $14,000.00.
The district court entered a minute order on August 8, 1996, indicating its decision. The court entered its Findings of Fact, Conclusions of Law and Decree of Divorce on February 3, 1997. Despite the fact that Antonio and Glenda had been married for over twenty-one years, and the fact that Antonio earned considerably more than Glenda, the trial judge refused to award Glenda alimony.
The district court denied Glenda's request for alimony because she'd had an extra-marital affair, had initiated the parties' separation by leaving the family to pursue the extra-marital relationship and had taken $10,000.00 from their adult son's personal injury settlement. In making its decision the court also found significance in the facts that Antonio had agreed to repay the money that had been taken from the son, that Antonio was to have custody of the parties' sixteen-year-old minor daughter and that Glenda was employed. The court stated in the Findings of Fact, Conclusions of Law and Decree of Divorce that
" hile neither party is without fault in this case (as evidenced by their conversion of [the son's] money), the Court finds Defendant was more at fault for the divorce than Plaintiff by her abandonment of the marital home and children and her admitted involvement in an extramarital relationship prior to the separation of the parties."
We conclude that the district court clearly erred by considering Glenda's fault in deciding whether to award her alimony.
The district court relied on dictum in Heim v. Heim, 104 Nev. 605, 763 P.2d 678 (1988), for the proposition that marital misconduct or fault may be considered in determining an award of alimony. When we decided Heim, NRS 125.150(1) read as follows:
"1. In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified periodic payments; and
(b) Shall make such disposition of:
(1) The community property of the parties; and
(2) Any property placed in joint tenancy by the parties on or after July 1, 1979, as appears just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by the divorce, and to the party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children."
Heim, 104 Nev. at 607-08 n.2, 763 P.2d at 679 n.2. The Heim court construed the statute to mean that district courts were authorized to award alimony and to divide property as appears just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by the divorce. Id. at 608, 763 P.2d at 680. The dictum in Heim which inspired the trial judge to consider Glenda's marital misconduct and to punish her by refusing her alimony request is as follows: " hen examining the 'merits' of the parties the courts might look at the parties' good actions or good behavior or
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