IN THE SUPREME COURT OF THE STATE OF NEVADA
MARY ELIZABETH LAFRANCE, No. 76161 FILED
Appellant,
vs. DEC 2 3 2020
GAIL H. CLINE, ELIZABETH A. BROWN
•CLERK OF SUPREME COURT
Respondent. BY ___Sjts-.4
DEPUTY Cit..Er
ORDER AFFIRMING IN PART, REVERSING IN PART, AND
REMANDING!
This is an appeal from a district court's findings of fact,
conclusions of law, and decree of divorce. Eighth Judicial District Court,
Clark County; Mathew Harter, Judge.
Appellant, Mary LaFrance, and respondent, Gail Cline, Nevada
residents, entered into a civil union in Vermont in 2000.2 Thereafter, in
2003, the couple entered into a marriage in Canada. In 2014, the parties
began dissolution proceedings which resulted in a decree of divorce in 2018.
During the dissolution proceedings, the district court recognized the start
date of the parties community as the 2000 Vermont civil union and applied
community property principles to all property acquired by the couple post-
2000.
LaFrance argues on appeal that the district court erred in
determining that the community commenced in 2000 and in applying
iThe Honorable Abbi Silver, Justice, voluntarily recused herself from
participation in the decision of this matter.
2We only recount the facts as necessary for our disposition.
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community property principles retroactively when the parties intended
otherwise. LaFrance contends that when she and Cline entered into their
civil union and marriage, neither the civil union nor the marriage were
recognized or considered valid under state or federal law. Thus, she argues,
she and Cline had no expectation or notice that community property rights
under Nevada law would apply to them until 2014, when Nevada's
prohibition on same-sex marriage was declared unconstitutional in Latta v.
Otter, 771 F.3d 456 (9th Cir. 2014). As a result, LaFance argues, the parties'
community should not start until that time. Conversely, Cline argues that
Obergefell v. Hodges, 576 U.S. 644 (2015), requires Nevada to "recognize
government sanctioned unions entered into by same-sex couplee as of the
dates the unions were entered into. She argues that the district court
properly determined that the community should start as of the date of the
2000 Vermont civil union.
The Vermont civil union is not the start of the parties' community
This court reviews questions of law de novo. Clark Cty. Sch.
Dist. v. Payo, 133 Nev. 626, 631,
403 P.3d 1270, 1275 (2017). Further, when
the district court bases a ruling on a legal interpretation, this court reviews
it de novo. Davis v. Beling, 128 Nev, 301, 311, 278 P.3d 501, 508 (2012).
At the time the parties initiated the dissolution proceedings and
the district court determined that their 2000 civil union commenced the
community for the purpose of property division, Nevada recognized civil
unions from other states, but only when couples registered their civil unions
as domestic partnerships with the Nevada Secretary of State.
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NRS 122A.5003; NRS 122A.1004. In such cases, the date of registration
would serve as the date of the couples domestic partnership for community
property and spousal support purposes. NRS 122A.200(1)(j)5. LaFrance
and Cline never registered their Vermont civil union. As a result, it was
not recognized in the State of Nevada as affording the parties the rights and
obligations of domestic partners under Nevada law.6 See id.
Nonetheless, Cline, relying on Obergefell, argues that because
the Vermont civil union bestowed on them the same rights and duties as a
spouse, Nevada must recognize the civil union as the beginning of the
3This statute was amended as of July 1, 2017. See 2017 Nev. Stat.,
ch. 72, § 6, at 291. The references to NRS 122A.500 in this opinion are to
the previous version.
`This statute was amended as of July 1, 2017. See 2017 Nev. Stat.,
ch. 72, § 3, at 288-89. The references to NRS 122A.100 in this opinion are
to the previous version.
'This statute was amended as of July 1, 2017. See 2017 Nev. Stat.,
ch. 72, § 4, at 289-90. The references to NRS 122A.200 in this opinion are
to the previous version.
6The Domestic Partnership Act was amended to eliminate the
registration requirement in 2017, before the parties' divorce was finalized,
see 2017 Nev. Stat., ch. 72, § 6, at 291, but neither party argues that their
civil union should be recognized as a domestic partnership under Nevada
law. Additionally, neither party argues that we should apply the 2017
amendments retroactively. See Edwards v. Emperor's Garden Rest., 122
Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006) (determining that this
court need not consider claims that are not cogently argued or supported by
relevant authority); see also Sandpointe Apartrnents, LLC v. Eighth
Judicial Dist. Court, 129 Nev. 813, 820,
313 P.3d 849, 853 (2013)
('Substantive statutes are presumed to only operate prospectively, unless it
is clear that the drafters intended the statute to be applied retroactively.").
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marital relationship for community property purposes. Obergefell,
however, requires states to recognize only same-sex marriages that are
lawful in other states; it does not address the rights of same-sex couples who
entered into civil unions. Obergefell, 576 U.S. at 681. And, neither Vermont
nor Nevada equates a civil union with a marriage. 7 Therefore, we conclude
that the district court erred in determining that the Vermont civil union
was the commencement of the parties community.
The parties' 2003 Canadian marriage was the start of their community
The parties' 2003 Canadian marriage was not recognized in
Nevada as valid until after the parties sought to dissolve their marriage.
Nevertheless, we conclude that the 2003 marriage was the commencement
of the parties' community for community property purposes. In 2015, before
the parties' divorce was finalized, the United States Supreme Court decided
Obergefell. Id. at 644. The Court in Obergefell held that "the right to marry
is a fundamental right," id. at 675, and that each state must "recognize a
7When Vermont enacted its civil union statute in 2000, affording
same-sex couples the same rights as opposite-sex couples, it specifically
detailed that a civil union is not the equivalent of a civil marriage. 2000
Vermont Laws P.A. 91, § 1(1) (Civil marriage under Vermont's marriage
statutes consists of a union between a man and a woman."). In 2009,
Vermont legalized same-sex marriage; however, unlike other states,
Vermont did not transform previously entered-into civil unions into
marriages. Vt. Stat. Ann. tit. 115, § 8 (West 2009); Solomon v. Guidry,
155
A.3d 1218, 1221 (Vt. 2016). Nevada also does not equate a civil union with
a marriage, but rather recognizes a civil union as an alternative to
marriage. See NRS 122A.500 (A legal union of two persons, other than a
marriage as recognized by the Nevada Constitution, that was validly formed
in another jurisdiction . . . must be recognized as a valid domestic
partnership . . . ." (emphasis added)).
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lawful same-sex marriage performed in another State," id. at 681.
Although the Supreme Court has not opined on the retroactive effects of its
Obergefell holding, the Supreme Court has "recognized a general rule of
retrospective effect for [its] constitutional decisions." Harper v. Va. Dept. of
Taxation, 509 U.S. 86, 94 (1993) (internal quotation marks omitted).
"When . . . a rule of federal law [is applied to a case], . . . that rule is the
controlling interpretation of federal law and must be given full retroactive
effect in all cases still open on direct review and as to all events, regardless
of whether such events predate or postdate . . the rule."8 Id. at 97. The
parties divorce was not finalized until 2018 and Obergefell was decided in
2015. Therefore, we conclude that the Supreme Court's constitutional
decision in Obergefell, requiring states to recognize same-sex marriages,
applies retroactively to the parties' 2003 Canadian marriage. Accordingly,
we conclude that the commencement of the parties' community is the date
of their 2003 Canadian marriage.
LaFrance argues that retroactivity is unfair because she and
Cline managed their finances and property under the assumption that they
did not have the legal rights and duties enjoyed by opposite-sex spouses.
However, under Obergefell, Nevada must credit the parties' marriage as
having taken place in 2003 and apply the same terms and conditions as
accorded to opposite-sex spouses. See Obergefell, 576 U.S. at 681 (stating
that states must give full faith and credit to marriages lawfully licensed in
8The Supreme Court has provided exceptions for when federal judicial
retroactivity is not required—none of which apply here. See Reynoldsville
Casket Co. v. Hyde, 514 U.S. 749, 758-59 (1995).
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101 19,17A ateti.
other states).9 These conditions include a presumption that any property
acquired during the marriage is community property, NRS 123.220, and an
opportunity for spouses to rebut this presumption by showing by clear and
certain proof that specific property is separate. Todkill v. Todkill, 88 Nev.
231, 235-36,
495 P.2d 629, 631-32 (1972).
Because the district court erred in deterrnining that the
community began in 2000, and in applying the presumption of community
property as of that date, we reverse that portion of the decree of divorce that
concerns the division of the parties property, and we remand this matter to
the district court to apply community property principles, including tracing,
to the parties' property acquired after their 2003 Canadian marriage.
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
J.
618=52641"...las7. , J.
Parraguirre Stiglich
, J.
Cadish
9LaFrance does not dispute that Obergefell requires Nevada to
recognize the marriage as valid.
6
cc: Hon. Mathew Harter, District Judge
Carolyn Worrell, Settlement Judge
Kainen Law Group
Willick Law Group
James M. Davis Law Office
Jones & LoBello
Eighth District Court Clerk
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