5 21 09 0204 01168 judge l. gardner's order denying request for reconsideration 53833 54844

7/28/2019 5 21 09 0204 01168 Judge l. Gardner's Order Denying Request for Reconsideration 53833 54844

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CODE:

IN THE FAMILY DIVISIONOF THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

ASHWIN JOSHI, Plaintiff, Case No. DV08-01l68v. Dept. No. 14BHARTI JOSHI, Defendant.

/ORDER DENYING REQUEST FOR RECONSIDER TION

Upon review of the pleadings and papers filed herein, the Court finds and Ordersas follows.

Initially, the Court would like to clarify it has taken under deliberation only thoseportions of the motion which are relevant to the award of attorney s fees. Based upon the'Notice of Subst itut ion of Counsel' filed May 14, 2009, Ms. Joshi has chosen to retainWashoe Legal Services to represent her for the remainder of this case in the place andstead of Mr. Coughlin, and requests a final decree of divorce entered as soon as possible.(Notice, 1:15-21).

A party moving for reconsideration must do so within ten (10) days of the notice ofentry of the order at issue. WDCR 12(8). f timely filed, motions for reconsideration areonly appropriately granted when the court has misapprehended or made a mistakeregarding a pertinent case fact or issue of law. Haroeq e Wagon Wheel, Inc. v. MacSween, 96Nev. 215, 606 P.2d 1095 (1980). This type of motion may not be used to present new

F I L E DElectronically

05-21-2009:11:27:19 AMHoward W. ConyersClerk of the Court

Transaction # 785777


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information or to reargue a previously litigated issue. In Re Ross 99 Nev. 657, 688 P.2d1089 (1983); see lso DCR 13(7).

A 'Notice of Entry of Order was filed April 13, 2009. Pursuant to WDCR 12(8),Mr. Coughlin should have filed the request for reconsideration by April 27, 2009.Mr. Coughlin filed a 'Request for Adjustment of Filing Date or Extension of Time' onApril 29, 2009, in which he indicates he attempted to file a timely Request forReconsideration on eFile, however, a technical deficiency regarding the signature lineresulted in a rejection of the filing. (Request,l:17-1:19). This pleading was neversubmitted to the Court for a decision and Mr. Coughlin was never granted leave to file hismotion. Mr. Coughlin then proceeded to file a 'Request for Reconsideration; Request forExtension of Time to Respond' on April 30, 2009.

Despite the procedural deficiencies, the Court finds a review of the substantiveargument presented herein is warranted in consideration of the grave nature of the Courtholding that Mr. Coughlin is to personally pay opposing counsel' s trial fees.

(1) Counsel defended a civil action or proceeding in this Court where such action ordefense was not warranted by existing law, or there was no good faith argumenfor a modification of existing law -

Mr. Coughlin urges the Court to reconsider its ruling that he maintained anddefended this action without existing law, or made no good faith argument to changeexisting law. Mr. Coughlin contends his position throughout this case was that his client ientitled to more than $1.00 in alimony per year in exchange for Mr. Joshi taking on over$20,000.00of consumer debt. (Request, 9:23-9:27). Mr. Coughlin cites to various opinionssubmitted by courts across the country to support the proposition that a debt to a thirdparty creditor may not be used to properly offset an alimony obligation. (Request, 1:18 11:21,15:11-21:7). The persuasive author ity presented herein was never submitted to theCourt prior to this time and thereby cannot be taken into account as it attempts to presentnew evidence to support an already litigated issue.

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The Court understands from this motion that Mr. Coughlin's position was that hisclient was willing to take on community debt so long as she also received an alimonyaward. t has become apparent that Mr. Coughlin's underlying intent was to create a'judgment proof' client in that she would ultimately not be able to pay the communitydebt allocated to her, but her alimony payments would remain intact. Mr. Coughlin asks

[w]hat should or would happen if Ms. Joshi was granted alimony and subsequentlymoved to discharge her share of the community debt in bankruptcy or simply just failed topay these debts? (Request, 19:21-19:25). Mr. Coughlin's answer to this ques tion is that asupport obligat ion (alimony too, not just child support) should be upheld even where thesupported party has failed to live up to the debt distribution terms of a Court's divorcedecree. (Request, 20:1-20:3). Mr. Coughlin advocated for this position although he knewthird party creditors could, and likely would, ultimately go after Mr. Joshi when his clientfailed to pay the community debt allocated to her in the decree of divorce. (Mr. Coughlinstates creditors of such community debt are unaffected by anything in a divorce decreefrom pursuing either of the parties for repayment... [and] it is typically very difficult topursue a spouse who is not a cosigner with respect to using that spouses separate property[to] cover any community debt and [s]hould Ms. Joshi have been ordered to pay half ofthe community credit card debt (for which her personal property probably could not beused to satisfy as she was not a cosigner on nearly all of the accounts), any subsequentfailure on her part to do so could likely not be used as a proper basis to set off any alimonyaward received. (Request 10:24-10:27;17:3-17:11).

Mr. Springgate contends Mr. Coughlin's position lacks merit pursuant toNRS 125.150 and Siragusa v Siragusa as it is well establ ished that this Court hasjurisdiction to modify an award of alimony when one party fails to pay their attributedshare of the community debt. 108 Nev. 987, 843 P.2d 807 (1992). Mr. Springgate specifies ithas been Mr. Coughlin's position that Ms. Joshi preferred an equal distribution of debt inaddition to an award of alimony so that she could continue to collect alimony even if shefailed to pay her half of the community debt. Mr. Springgate contends Mr. Coughlin's

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pursuit of this matter was vexatious and frivolous in that it was not grounded underexisting law, and in fact, was essentially urging a distribution of debts and assets in badfaith. (Opp.5:11-5:13).

Mr. Coughlin has presented various decisions by courts throughout the UnitedStates in support of his position on alimony and the distribution of community debts.However, as stated above, the argument and case law presented herein were neverpresented to the Court prior to this time. As such, there is no valid argument that thecourt has misapprehended or made a mistake regarding a pertinent case fact or issue oflaw when Mr. Coughlin is presenting argument and persuasive authority for the first timein an attempt to re-litigate the issue. Not only did Mr. Coughlin fail to present any of theargument contained herein at trial, he also failed to present any relevant Nevada lawregarding alimony at trial to sustain the contention that his client was entitled to suchsupport.

Overall, this portion of Mr. Coughlin's motion lends credence to this Court'sfinding that his presentation of the case and arguments in support thereof wereunfounded in fact, unwarranted by existing law, unreasonable, and vexatious (Order,13:11-13:13). At no point does Mr. Coughlin demonstrate that any of the informationcontained herein was presented at trial for the Court to take into consideration. Further,Mr. Coughlin acknowledges he advocated for a 'judgment proof' client and ultimatelycontemplated placing Mr. Joshi in such a position that he would be pursued by third partycreditors should Ms. Joshi have been allocated any of the community debt in the decree ofdivorce.

Based on the foregoing, the Court denies reconsideration of the award of attorney'sfees.

(2) The Court's 'Order After Trial' is sufficiently detailed and specific to support anaward personally requiring counsel to pay opposing side's attorney's fees -

Mr. Coughlin argues the Court failed to be sufficiently detailed and specific in itsOrder with regard to Mr. Coughlin's sanctionable behavior, and with regard to the

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reasonableness of attorney's fees as the Court did not require an affidavit pursuant toWiller v Wilfong (Request, 11:22 - 21:7; 22:10;24:16).

The Court would direct Mr. Coughlin to review pages 11-13 of its 'Order AfterTrial' for specific instances as to why this Court awarded attorney's fees to Mr. SpringgateAs for the contention that Miller was not satisfied, Mr. Coughlin's assert ion of Milleis unmeritorious under these circumstances. The Supreme Court specified that partiesseeking attorney fees in family law cases must support their fee request with affidavits orother evidence that meets the factors in Brunzell and Wright 112 Nev. At 623-624.The Court witnessed first hand any and all evidence required under Brunzell during thetrial as it observed the qualities of the advocate, the character and difficulty of the workperformed, the actual work performed by the attorney, and the result obtained.As Mr. Springgate is requesting attorney's fees for only that time spent at trial, there is noneed for any additional evidence to support the reasonableness of Mr. Springgate's fees.Further, the requirement that the Court take into account the disparity in income pursuantto Wright is nonsensical as the Court is not requiring the fees to be paid by a litigant.

Based upon the foregoing, the Court denies Mr. Coughlin's request forreconsideration.

(3) Request for extension of time is denied -Mr. Coughlin requests he be granted more time to more fully develop this Motion

for Reconsideration and to access the necessary materials from Washoe Legal Services todo so, including relevant file, work product, video of trial, and record of correspondencesbetween opposing counsel and Mr. Coughlin. (Request, 49:24-50:1).

This Court has substantively considered Mr. Coughlin'S 50 page motion despite itsprocedural deficiencies. No good cause appears to grant Mr. Coughlin further lenience on

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this matter. Accordingly, Mr. Coughlin s request for an extension of time to more fullydevelop his request for reconsideration is denied.

GOO CAUSE APPEARING IT IS SO ORDERED.

Dated: May z] 2009. ~ a 4i ~ GardnerDistrict Court Judge

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CERTIFICATE OF M ILINGPursuant to NRCP 5(b), I certify that I am an employee of the Second Judicial

District Court , and that on the ~ day of 2009, I deposi ted for mailing, firstclass postage pre-paid, at Reno, Nevada, a true and cJrect copy of the foregoingdocument addressed to:

Document Order Denying Request for ReconsiderationZach Coughlin, Esq.945 W. 12th StreetReno, NV 89503

I also certify that on the cJ 1 day of 2009, I electronically filed theforegoing with the Clerk of the ourt system which will send a notice of electronic filing tothe following:John P. Springgate, Esq.Marc Ashley, Esq.

Administrative Assistant - Dept. 14

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5 21 09 0204 01168 judge l. gardner's order denying request for reconsideration 53833 54844

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