                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ERIC HOLYOAK,                                          No. 67490
                Appellant,
                vs.                                                         FILED
                TONI HOLYOAK,                                                MAY 1 9 2016
                Respondent.

                                        ORDER OF AFFIRMANCE

                            This is an appeal from a post-divorce decree order regarding
                the distribution of retirement benefits. Eighth Judicial District Court,
                Clark County; Vincent Ochoa, Judge.
                            In 1982, appellant Eric Holyoak and respondent Toni Holyoak
                married. In 2008, they divorced. Appellant was a police officer employed
                by the Las Vegas Metropolitan Police Department and a participant in the
                Public Employees Retirement System (PERS). During the divorce
                proceedings, he was not yet eligible for retirement.
                            Neither party was represented by an attorney during the
                divorce proceedings. Further, both parties executed a joint petition for
                summary decree of divorce, which they amended twice. The petition
                divided their community property through a memorandum of
                understanding (MOU), which they mediated with the assistance of a
                former family court judge. With regard to appellant's PERS retirement
                account, the MOU stated: "The parties agree to split the costs of the
                preparation of a [qualified domestic relations order (QDRO)]. The QDRO
                will direct the trustee of PERS to pay to each party their proportionate


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                share of the account at the time [appellant] retires." Ultimately, the
                parties disputed the meaning of this clause before the district court.
                             Appellant filed a brief detailing his position on several issues
                relevant to the division of community property, including when he was
                required to pay respondent's share of the PERS benefits. 1 According to
                appellant, pursuant to the applicable clause in the MOU, both parties
                agreed that respondent will receive her share starting from the time of
                appellant's official retirement. In support of his argument, appellant filed
                a declaration stating that both parties agreed at the time of the mediation
                that respondent would not receive her share until appellant officially
                retired. However, appellant's counsel also acknowledged in an earlier
                proceeding that the clause in the MOU was simply "a one-sentence
                agreement" and that "what the two parties agreed to may have been
                completely different between the two of them in their minds as to what
                they were agreeing to." Respondent asserted that appellant's
                interpretation of the clause was incorrect and that Nevada caselaw
                supported her position that she can receive her share when appellant is
                eligible to retire. Before the district court, she also noted that one reason

                      1 We  note that, in general, a district court lacks jurisdiction to modify
                property rights, as established by a divorce decree, beyond six months.
                See NRCP 60(b); Kramer v. Kramer, 96 Nev. 759, 762, 616 P.2d 395, 397
                (1980). However, because the district court in this case merely interpreted
                the decree and enforced its terms, rather than modifying the parties'
                interests, the time requirements of NRCP 60(b) do not apply. See Walsh v.
                Walsh, 103 Nev. 287, 288, 738 P.2d 117, 117-18 (1987) (interpreting rather
                than modifying pension plan provision of divorce decree outside NRCP
                60(b)'s six-month period). Further, the MOU was incorporated into the
                divorce decree, and the district court has inherent authority to construe its
                decrees in order to remove an ambiguity. See Kishner v. Kishner, 93 Nev.
                220, 225, 562 P.2d 493, 496 (1977).


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                         for accepting a low amount in spousal support "was her understanding
                         that she would receive her portion of the PERS retirement for the rest of
                         her life." In addition, respondent claimed that she was "under the
                         impression that [appellant] would be retiring sooner than later."
                                     With regard to this issue, the district court ruled in favor of
                         respondent. The district court determined that nothing in the MOU or the
                         divorce decree "indicates any intention on the part of any person involved
                         to do anything other than what the law provides and divide the
                         community portion of all assets equally." Further, the court noted that
                         according to the MOU, respondent "is to receive a 'proportionate share' of
                         [appellant's] Nevada PERS pension benefits" and that this language "was
                         intended to comply with Nevada law." Applying Nevada precedent
                         concerning election of retirement benefits, the court concluded that
                         respondent had an interest in appellant's retirement pension starting from
                         the date of his eligibility. However, the district court noted that
                         respondent must first file a motion "requesting to begin receiving payment
                         of her portion" of the PERS pension benefits.
                                     Following the district court's order, respondent filed a motion
                         for immediate election of her share of appellant's PERS benefits.
                         Ultimately, the court granted the motion, reiterating its previous decision
                         that respondent is entitled to receive her share starting from the date of
                         appellant's eligibility. This appeal follows. 2




                               2 We note that in her answering brief, respondent raises issues
                         concerning alleged errors in this court's precedent on survivorship rights.
                         However, respondent did not file a cross-appeal, and thus lacks the ability
                         to challenge the district court's ruling on these issues.


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                            Generally, this court reviews the district court's division of
                community property for an abuse of discretion.       Wolff v. Wolff,    112 Nev.
                1355, 1359, 929 P.2d 916, 918-19 (1996). Further, this court reviews a
                district court's factual findings for an abuse of discretion, and will not set
                aside those findings unless they are clearly erroneous or not supported by
                substantial evidence. Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699,
                704 (2009). When a district court's interpretation of a divorce decree
                involves a question of law, however, this court reviews the interpretation
                de novo.   Henson v. Henson, 130 Nev., Adv. Op. 79, 334 P.3d 933, 936
                (2014).
                            An agreement to settle pending divorce litigation constitutes a
                contract and is governed by the general principles of contract law.
                Grisham v. Grisham, 128 Nev., Adv. Op. 60, 289 P.3d 230, 234 (2012). In
                the context of family law, parties are permitted to contract in any lawful
                manner. See Rivero v. Rivera, 125 Nev. 410, 429, 216 P.3d 213, 226 (2009).
                "Parties are free to contract, and the courts will enforce their contracts if
                they are not unconscionable, illegal, or in violation of public policy."      Id.
                An enforceable contract requires 'an offer and acceptance, meeting of the
                minds, and consideration." May v. Anderson, 121 Nev. 668, 672, 119 P.3d
                1254, 1257 (2005).
                            Further, this court views a contract as "ambiguous if it is
                reasonably susceptible to more than one interpretation."               Shelton v.
                Shelton, 119 Nev. 492, 497, 78 P.3d 507, 510 (2003) (internal quotation
                and footnote omitted). When interpreting an ambiguous contract, this
                court looks beyond the express terms and analyzes the circumstances
                surrounding the contract to determine the true mutual intentions of both
                parties. Id. (footnote omitted). Finally, this court has recognized that an

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                interpretation that "results in a fair and reasonable contract is preferable
                to one that results in a harsh and unreasonable contract."      Id. (internal
                quotation and footnote omitted).
                            With regard to retirement benefits, those earned during a
                marriage qualify as community property, even if they are not vested.
                Gemma v. Gemma, 105 Nev. 458, 460-61, 778 P.2d 429, 430 (1989). While
                the effect of a contract on the timing of a nonemployee spouse's receipt of
                benefits has not yet been explored, this court has discussed the issue of
                when a nonemployee spouse is entitled to request his or her share of
                benefits. In particular, we have held that the nonemployee spouse has a
                right to his or her share of the employee spouse's benefits starting from
                the date of eligibility for retirement.     Id. at 464, 778 P.2d at 432.
                Moreover, NRS 125.155 gives the court discretion to consider directing the
                employee spouse to pay the nonemployee spouse his or her share of PERS
                benefits at the first eligible retirement date or to order that the
                nonemployee spouse wait until the employee spouse actually retires.      See
                NRS 125.155(2).
                            Here, while part of the district court's analysis is mistaken,
                the outcome of its order is correct. The clause in the MOU provides that
                "[t]he QDRO will direct the trustee of PERS to pay to each party their
                proportionate share of the account at the time [appellant] retires." The
                district court did not expressly acknowledge the ambiguity of this clause,
                but we conclude that it is ambiguous because it is reasonably susceptible
                to more than one interpretation. Appellant interprets the phrase "at the
                time [appellant] retires" as an agreed-upon determination of the time
                when respondent is eligible to receive her share. In contrast, respondent
                contends that the phrase, within the context of the entire clause, pertains

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                to the time of disbursement of the payments; the clause is merely a
                procedural instruction to the trustee of PERS to pay the proportionate
                share after appellant retires. Respondent asserts that the clause does not
                prohibit her from directly seeking her share from appellant, which is how
                pre-retirement payments are standardly made. Accordingly, the
                calculation of the proportionate share is based on the employee spouse's
                eligibility for retirement, and if the employee spouse does not retire when
                he is eligible, he must pay the nonemployee spouse the amount that the
                nonemployee spouse would have received if the employee spouse had
                retired at that time.
                             In this case, appellant's interpretation ultimately lacks merit
                because it results in a harsh and unreasonable contract. The record does
                not sufficiently show that respondent intended to wait until appellant
                officially retired to collect her share, and this court has repeatedly held
                that the nonemployee spouse has a right to her share as soon as the
                employee spouse is eligible to retire. Upon consideration of the
                circumstances surrounding the MOU and in light of precedent from this
                court, we conclude that respondent's interpretation results in a fair and
                reasonable contract. Even though the district court dismissed the
                ambiguous nature of the clause in the MOU, its decision was nevertheless
                correct.   See Rosenstein v. Steele,   103 Nev. 571, 575, 747 P.2d 230, 233
                (1987) ("[T]his court will affirm the order of the district court if it reached
                the correct result, albeit for different reasons"). Thus, the district court
                properly ruled that respondent was entitled to receive her share starting
                from the time that appellant was eligible to retire. Accordingly, we




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                           ORDER the judgment of the district court AFFIRMED.




                                                    CU/LA a_c? cr        ,   C.J.
                                                Parraguirre



                                                Hardesty


                                                 .AD°0-01                ,    J.
                                                Douglas


                                                                              J.



                                                                              J.



                                                                              J.




                cc: Hon. Vincent Ochoa, District Judge
                     Carolyn Worrell, Settlement Judge
                     Neil J. Beller, Ltd.
                     Willick Law Group
                     Eighth District Court Clerk




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                     PICKERING, J., dissenting:
                                 The parties mediated the issues regarding dissolution of their
                     marriage before Robert E. Gaston, who served for eight years as a district
                     court judge, family court division, before establishing an alternative
                     dispute resolution service dedicated to civil and domestic court cases. 1
                     Their mediation culminated in a written settlement agreement, prepared
                     under the supervision of Judge Gaston, which they signed on May 20,
                     2008. Addressing retirement/investment accounts, specifically, Eric's
                     retirement account with PERS, the settlement agreement states that the
                     parties will split the costs of preparing a QDRO, and that the QDRO "will


                            'See Settlement Judge Biographies: Robert E. Gaston, Nev. Cts.,
                     http://nvcourts. gov/Settlement_Program/Biographies/Gaston,_Robert_E_/
                     (last visited May 12, 2016). I thus do not agree that the parties did not
                     know what they were signing Right above their signatures, in fact, the
                     following paragraph appears:

                                 The above Memorandum of Understanding
                                 reflects agreements formulated in mediation on
                                 the 20th day of May, 2008. By signing this
                                 document each party stipulates and agrees that
                                 they have carefully read this document, and the
                                 document accurately reflects the agreement that
                                 each party has entered into on this day, and that
                                 each party voluntarily signs this agreement
                                 without undue influence, coercion or threat. Both
                                 parties represent that they are of sufficient
                                 capacity to understand and enter into this
                                 agreement. The parties agree that this
                                 Memorandum of Understanding represents what
                                 each believes to be a fair and reasonable
                                 resolution of the issues. Both parties acknowledge
                                 the fact that they had the right to have legal
                                 counsel, but have waived that right.


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                     direct the trustee of PERS to pay each party their proportionate share of
                     the account at the time Eric retires." A straightforward reading of this
                     clause suggests that the payments occur "at the time Eric retires," not, as
                     the majority would have it, at the time Eric becomes eligible to retire.
                                 "A settlement agreement is a contract governed by general
                     principles of contract law"; when a settlement agreement's "language is
                     unambiguous, this court will construe and enforce it according to that
                     language." The Power Co. v. Henry, 130 Nev., Adv. Op. 21, 321 P.3d 858,
                     863 (2014). As I do not see the settlement agreement as ambiguous, I
                     would enforce it as written. I therefore respectfully dissent.




                                                               CJICht,                   J.
                                                         Pickering




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