                                                       131 Nev., Advance Opinion    51
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   MARK ANDERSON,                                         No. 62059
                   Appellant,
                   vs.                                                        FILED
                   SOPHIA SANCHEZ,
                   Respondent.                                                 JUL 2 3 2015
                                                                                  7 K. 77:7777777
                                                                                      •E




                               Appeal from a district court divorce decree. Fifth Judicial
                   District Court, Nye County; Kimberly A. Wanker, Judge.
                               Reversed and remanded with instructions.

                   Abrams Law Firm, LLC, and Vincent Mayo, Las Vegas,
                   for Appellant.

                   Law Office of Daniel Marks and Daniel Marks and Christopher L.
                   Marchand, Las Vegas,
                   for Respondent.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                   OPINION

                   By the Court, GIBBONS, C.J.:
                               This case involves the enforceability of a divorce settlement
                   agreement in the face of a claim that the agreement distributes property
                   belonging to a third party. At issue here is the district court's denial of
                   appellant's motion to set aside the parties' settlement agreement, and join
                   his sister to the underlying divorce proceeding, because she claimed an

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                       interest in property that was treated as community property in the
                       settlement agreement. Under NRCP 19(a), a court must join a person to
                       an action if complete relief cannot be accorded among the parties already
                       present, or the person to be joined claims to have an interest in the subject
                       matter of the action, and adjudication of the action in the person's absence
                       may either impair the person's ability to protect that interest, or leave any
                       of the current parties subject to double, multiple, or otherwise inconsistent
                       obligations due to the claimed interest.
                                   In light of this rule and the facts in this case, we conclude the
                       district court should have conducted an evidentiary hearing to decide the
                       joinder issues before the court adjudicated the parties' property pursuant
                       to the settlement agreement. We therefore vacate the district court's
                       divorce decree only as it affects the disposition of the property at issue and
                       remand this matter to the district court with instructions to conduct an
                       evidentiary hearing to determine whether the sister should have been
                       joined under NRCP 19(a).
                                                     BACKGROUND
                                   This appeal arises out of a divorce between appellant Mark
                       Anderson and respondent Sophia Sanchez. Mark filed a complaint for
                       divorce in March 2012. Thereafter, the parties immediately agreed to
                       participate in mediation before retired district court judge Robert Gaston,
                       but not pursuant to a court order or district court rule, which can be used
                       to set the parameters of the mediation. At the conclusion of the mediation,
                       the parties executed a written Memorandum of Understanding (MOU),
                       which provided the framework for dividing their various assets and debts.
                       The award of the Wilson property, a residence located on East Wilson


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                   Avenue, Orange, California, is the only term of the MOU challenged on
                   appeal. Under the terms of the MOU, Mark was to receive the Wilson
                   property in exchange for the payment of a portion of his retirement funds
                   to Sophia.
                                After the parties executed the MOU, Mark filed a notice of
                   withdrawal of his signature, stating, without any explanation or citation
                   to law, that he was revoking his signature from the MOU. In response,
                   Sophia filed a motion to enforce the MOU, asserting that the parties had
                   entered into a legally binding contract and requesting that the district
                   court enter a divorce decree based on the terms of the MOU. Mark then
                   filed, among other things, an opposition to the motion to enforce, a
                   countermotion to set aside and deem the MOU unenforceable, and a
                   countermotion for joinder of his sister, Cheryl Parr. Cheryl also filed a
                   motion to intervene in the divorce proceeding based on the same factual
                   allegations set forth in Mark's opposition and countermotion regarding
                   joinder, and she asked for a finding and order that the Wilson property
                   was held in constructive trust, declaratory relief, an injunction, and
                   attorney fees.
                                In his opposition and countermotions, Mark argued, as
                   relevant here, that the MOU was void because it improperly distributed
                   property that did not belong to Mark and Sophia. Further, Mark argued
                   the MOU was subject to rescission because it was based on a mutual
                   mistake, a misrepresentation, or unconscionable terms. In support of
                   these arguments, Mark alleged Cheryl had an ownership interest in the
                   Wilson property, which he and Cheryl had received as beneficiaries of the
                   Jack and Lavonne Anderson Trust (the Jack and Lavonne Trust), which


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                   previously held that property. Mark claimed he and Cheryl had agreed
                   Cheryl would keep the Wilson property in exchange for Mark receiving
                   other trust assets. Cheryl currently lives on the Wilson property.
                                Continuing his arguments in support of joinder and setting
                   aside the MOU, Mark alleged that, between May 2005 and May 2006, he
                   and Sophia entered into two agreements with Cheryl in which Cheryl
                   allowed them to use the Wilson property as collateral to secure loans. In
                   order to obtain financing, the second agreement required Mark and
                   Cheryl, as trustees of the Jack and Lavonne Trust, to convey the Wilson
                   property to Mark and Sophia. Mark and Sophia then transferred the
                   Wilson property to their own newly created trust, the Anderson Trust.
                   The Anderson Trust provides that the Wilson property is to be conveyed to
                   Cheryl should she survive both Mark and Sophia. Additionally, David
                   Parr, Cheryl's son, is named as a beneficiary of the Anderson Trust,
                   should he survive Cheryl, Mark, and Sophia. The Anderson Trust was not
                   made a party in this case. None of Mark and Sophia's five other
                   properties are held in a trust.
                               Mark contended he and Sophia entered into an oral agreement
                   with Cheryl whereby he and Sophia would transfer the Wilson property to
                   Cheryl after all loans were satisfied. Until such time, however, Mark and
                   Sophia would hold the Wilson property in the trust for Cheryl's benefit.
                   Thus, in his opposition and countermotions, Mark argued the agreement
                   created a resulting trust or a constructive trust for Cheryl's benefit.
                               Mark filed several statements in district court by individuals
                   familiar with the arrangement to prove the oral agreements. These
                   included an affidavit signed by Mark and Sophia's accountant, who


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                   provided a loan collateralized by the Wilson property; a letter signed by
                   the trust attorney who drafted the Anderson Trust, which recited his
                   understanding that the property was held in Mark's name, but was
                   actually owned by Cheryl; a notarized statement signed by Israel Sanchez,
                   Sophia's brother, which outlined his understanding of Mark and Sophia's
                   arrangement with Cheryl, consistent with Mark's contentions; and the
                   Anderson Trust agreement, which held the Wilson property at the time of
                   divorce and which provided that the Wilson property would go to Cheryl
                   free of encumbrances following the deaths of both Sophia and Mark if she
                   survived them. Based on his contention that Cheryl was the true owner of
                   the Wilson property, Mark maintained that Cheryl must be joined to the
                   action pursuant to the provisions of NRCP 19(a).
                               Sophia filed a reply in support of her motion to enforce the
                   settlement agreement and an opposition to Mark's countermotions. She
                   denied the existence of an agreement between herself, Mark, and Cheryl,
                   referring to the alleged agreement as "a secret deal between [Mark] and
                   his sister." Sophia contended she and Mark were the rightful owners of
                   the Wilson property, as they, not Cheryl, paid the mortgage and property
                   taxes on the Wilson property and because a quitclaim deed released the
                   property to Mark and Sophia forever.
                               The district court held two hearings on the various motions.
                   In rendering its decisions, the district court stated at the hearings, "I don't
                   know how Cheryl [Parr] would—could become a party in this case. We're
                   talking about a piece of property in California, so we don't—we don't have
                   jurisdiction over a property in California. She's not a party to this
                   proceeding. This is a divorce." Second, the district court stated, "[a]


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                   settlement was reached. . .. It was placed in writing. And now what I
                   hear is that somehow that—that really there was this constructive trust
                   regarding this California property that fi] s the problem. Those facts were
                   known to [Mark]. Those facts were known to [Sophia]." Third, the district
                   court emphasized the importance that "[Mark and Sophia are] legal
                   owners of the property."
                               After the second hearing, the district court issued an order
                   that (1) granted Sophia's motion to enforce the MOU, (2) denied all of
                   Mark's countermotions, and (3) denied Cheryl's motion to intervene and
                   related motions. In addition to concluding the MOU was a valid and
                   binding agreement, the district court found that Cheryl lacked standing to
                   intervene and that the court lacked jurisdiction to allow her to intervene.'
                   The court also entered a decree of divorce dissolving Mark and Sophia's
                   marriage and incorporating the MOU. This appeal by Mark followed.
                                                   ANALYSIS
                               Mark maintains that the arrangement with Cheryl created an
                   implied trust for Cheryl's benefit. Therefore, he asserts that when he and
                   Sophia divided the Wilson property as part of their community property,
                   they mistakenly included property that belonged to Cheryl. Thus, Mark



                          'Cheryl was never made a party to the district court action and is
                   thus not a party to this appeal. Moreover, because Cheryl did not file a
                   petition for a writ of mandamus challenging the denial of her motion to
                   intervene, the denial of that motion is not before us. Nevertheless, the
                   district court's comments in this regard are equally relevant to the denial
                   of Mark's joinder motion as they were to the denial of Cheryl's motion to
                   intervene.



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                   contends that the MOU should be set aside as to that provision and the
                   matter should be remanded to the district court for further proceedings in
                   which Cheryl's interest in the Wilson property is determined. Sophia
                   disagrees, arguing that the parties entered into an enforceable settlement
                   agreement and that joinder of Cheryl was not required.
                               This court reviews de novo a district court's legal conclusions
                   relating to court rules. Casey v. Wells Fargo Bank, N.A., 128 Nev. ,
                   290 P.3d 265, 267 (2012). Subject matter jurisdiction is similarly reviewed
                   de novo. Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009).
                               Generally, when parties to a divorce have entered into a
                   signed, written settlement agreement, such agreement is binding and "can
                   be enforced by motion in the case being settled." Grisham v. Grisham, 128
                   Nev. „ 289 P.3d 230, 233 (2012). Nevertheless, in order to render a
                   complete decree in any civil action, "all persons materially interested in
                   the subject matter of the suit [must] be made parties so that there is a
                   complete decree to bind them all."      Gladys Baker Olsen Family Trust ex
                   rel. Olsen v. Eighth Judicial Dist. Court, 110 Nev. 548, 553, 874 P.2d 778,
                   781 (1994). For that reason, the Nevada Supreme Court has held that the
                   failure to join a necessary party to a case was "fatal to the district court's
                   judgment." Id. at 554, 874 P.2d at 782. In light of this authority, we
                   conclude that, if Cheryl was a necessary party, the district court's
                   judgment was invalid to the extent that it affected rights in property in
                   which Cheryl claimed an interest. See id. Thus, we begin by considering
                   Mark's argument that the district court erred by denying his motion to
                   join Cheryl in the underlying action.



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                   Joinder of necessary parties
                               Although NRCP 19(a) refers to parties who are to be joined if
                   feasible, a person who falls within that subsection of the rule is generally
                   referred to as a "necessary party."   See Disabled Rights Action Comm. v.
                   Las Vegas Events, Inc., 375 F.3d 861, 878 (9th Cir. 2004) (explaining that
                   an individual who should be joined under the analogous federal rule,
                   FRCP 19(a), is "referred to as a 'necessary party"); see also Blaine Equip.
                   Co., Inc. v. State, 122 Nev. 860, 864 n.6, 138 P.3d 820, 822 n.6 (2006)
                   (referring to a party who should be joined under NRCP 19(a) as a
                   necessary party). There are three types of circumstances in which an
                   absent party is necessary under NRCP 19(a): (1) an individual must be
                   joined if the failure to join will prevent the existing parties from obtaining
                   complete relief; (2) an individual must be joined if an interest is claimed in
                   the subject matter of the action and adjudication of the action in the
                   individual's absence may inhibit the individual's ability to protect that
                   claimed interest; and (3) an individual must be joined if the person claims
                   an interest in the subject matter of the action and adjudication of the
                   action in the individual's absence subjects an existing party "to a
                   substantial risk of incurring double, multiple, or otherwise inconsistent
                   obligations." See NRCP 19(a). 2


                         2NRCP 19(a) provides that, if a person is subject to service of process
                   and that person's joinder will not deprive the court of subject matter
                   jurisdiction, then the person "shall be joined as a party in the action if (1)
                   in the person's absence complete relief cannot be accorded among those
                   already parties, or (2) the person claims an interest relating to the subject
                   of the action and is so situated that the disposition of the action in the
                   person's absence may (i) as a practical matter impair or impede the
                                                                       continued on next page...
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                               Without addressing whether this case presented any of the
                   circumstances set forth in NRCP 19(a), the district court declined to join
                   Cheryl, apparently based on two preliminary conclusions—that the court
                   lacked jurisdiction to determine Cheryl's rights in property located in
                   another state and that an outside party could not be joined to a divorce
                   action. We now address each of these conclusions in turn.
                   Jurisdiction over the Wilson property
                               Although the district court failed to make specific factual
                   findings, its oral comments indicate that it concluded it lacked jurisdiction
                   to adjudicate the ownership rights to the Wilson property because the
                   property is located outside of Nevada. To that end, the written order
                   recites, "Ms. Parr's remedy lies in a different jurisdiction, this Court does
                   not have jurisdiction to allow her to intervene into this matter."
                               A court of equity, however, may adjudicate out-of-state
                   property rights in a divorce action. Buaas v. Buaas, 62 Nev. 232, 236, 147
                   P.2d 495, 496 (1944). In Buass, the former wife appealed a divorce decree
                   obtained in Nevada, alleging that the Nevada court lacked jurisdiction to
                   adjudicate the status of real property located in California.   Id. at 234, 147
                   P.2d at 496. The Nevada Supreme Court held that, although the lower
                   court could not render a judgment in rem over the California property, it
                   could pass indirectly upon the title via its jurisdiction over the parties. Id.
                   at 236, 147 P.2d at 496; see also Lewis v. Lewis, 71 Nev. 301, 306, 289 P.2d

                   ...continued
                   person's ability to protect that interest or (ii) leave any of the persons
                   already parties subject to a substantial risk of incurring double, multiple,
                   or otherwise inconsistent obligations by reason of the claimed interest."


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                   414, 417 (1955) (stating that a district court possesses control over an out-
                   of-state property through jurisdiction over the parties and that the district
                   court can exercise such control to avoid multiplicity of suits).
                                Here, Mark and Sophia were properly before the district court
                   in their divorce proceeding and included the Wilson property among the
                   assets to be divided. Further, Cheryl submitted to the district court's
                   jurisdiction by filing a motion to intervene in the divorce proceeding. 3
                   Thus, although the Wilson property was located in California, the district
                   court could have adjudicated the parties' rights to the property based on
                   its personal jurisdiction over all of the parties purporting to have an
                   interest in the property.     See Buass, 62 Nev. at 236, 147 P.2d at 496.
                   Consequently, the district court erred in concluding it lacked jurisdiction
                   to consider Cheryl's interest in the Wilson property based on the
                   property's location. We now turn to the court's other apparent conclusion,
                   that it could not join a third party to a divorce action.
                   Joinder in a divorce action
                                In addition to the district court's conclusions relating to the
                   location of the property, the district court's comments and written order
                   suggest the court found it would be improper to join or allow intervention
                   by a third party to a divorce action. We disagree.
                               Nothing in NRCP 19(a) limits the type of civil action to which
                   a necessary party must be joined. And although the Nevada Supreme
                   Court has not specifically addressed whether a third party may be joined


                         3 Therefore NRCP 19(b), regarding an absent but indispensable third
                   party that could not be feasibly joined, is inapplicable.



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                   to a divorce action, that court has held that joinder was required in certain
                   post-divorce proceedings. See, e.g., Johnson v. Johnson, 93 Nev. 655, 659,
                   572 P.2d 925, 927 (1977) (holding that an order requiring an absent third
                   party to transfer property was void because the absent third-party
                   transferee was not joined in the post-divorce action); Olsen Family Trust,
                   110 Nev. at 554, 874 P.2d at 782 (holding that a trust created by a third
                   party was a necessary party to a post-divorce action in which the district
                   court ordered trust property to be transferred to the appellant to satisfy
                   spousal support arrearages). Thus, Nevada case law supports the
                   possibility that an absent third party may be joined to a family law action
                   in certain circumstances.
                               Moreover, courts in other jurisdictions have concluded that a
                   third party may be joined to a divorce proceeding when such joinder is
                   necessary to resolve disputes as to property rights. For instance, in
                   Cadwell v. Cadwell, 178 P.2d 266, 267 (Kan. 1947), the district court had
                   allowed the wife's mother to intervene in the parties' divorce action
                   because she had claimed to be the true owner of certain real and personal
                   property held by the husband and wife. 4 On appeal, the court noted that,
                   generally, "a third person has no legal interest in or right to interfere with
                   a divorce action for the purpose of opposing the granting of a decree of

                         4 Several of the cases discussed herein consider the issue of bringing
                   third parties into divorce cases based on the third party's motion to
                   intervene. See, e.g., Cadwell, 178 P.2d at 267-69. Although joinder, rather
                   than intervention, is at issue in this appeal, these cases are relevant to the
                   consideration of whether the third party may properly be made a party to
                   a divorce action. Whether a party is necessary, such that joinder is
                   required, is discussed separately below.



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                   divorce." Id. at 268. Nevertheless, the court recognized that, when the
                   third person seeks to intervene based on a claim of a right to property held
                   by the divorcing parties, courts have typically held that intervention for
                   such a purpose is proper. Id. at 268-69.
                               Similarly, in Wharff v. Wharff, 56 N.W.2d 1, 2 (Iowa 1952), a
                   divorcing wife alleged that real property titled in the parties' names was
                   actually purchased with her separate money and was "held in trust for her
                   children by a previous marriage." On this basis, the children moved to
                   intervene in the divorce to assert their interest in the property.        Id.
                   Concluding that intervention in divorce cases was typically subject to the
                   ordinary rules of civil procedure, the Wharf court noted that intervention
                   is generally proper when a third person "claims an interest in property
                   involved in litigation." Id. at 3-4. The court recognized that allowing
                   intervention would help avoid a multiplicity of suits and the possibility
                   that the division of property in a divorce might be rendered inequitable if
                   property divided in the divorce is later awarded to the third person in a
                   separate action. Id. at 4.
                               These cases represent the majority view that a third person
                   may be joined as a party to a divorce action based on a claimed interest in
                   real or personal property that is to be divided among the divorcing parties.
                   See also Copeland v. Copeland, 616 S.W.2d 773, 775 (Ark. Ct. App. 1981)
                   ("Third parties may be brought into, or intervene in, divorce actions for the
                   purpose of clearing or determining the rights of the spouses in specific
                   properties."); Gaudio v. Gaudio, 580 A.2d 1212, 1217 (Conn. App. Ct. 1990)
                   ("The prevailing view in the majority of other jurisdictions is that a third
                   person with a claimed interest in property that is the subject of a


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                   dissolution action may properly be joined as a party."); Lancaster v.
                   Lancaster, 291 S.W.2d 303, 308 (Tex. 1956) ("On a petition for divorce and
                   for partition of the community property, all persons who have an interest
                   in the property are proper parties.").
                               Thus, considering this extrajurisdictional authority in light of
                   the Nevada Supreme Court cases indicating that joinder may be proper in
                   family law cases, we conclude that a third person may be joined to a
                   divorce action when that person claims an interest in property that is
                   purported to be part of the marital estate. As a result, the district court
                   erred to the extent that it apparently found that Cheryl could not be joined
                   because the underlying action was a divorce action.
                               But having determined that Cheryl could have been joined in
                   the underlying divorce action does not end our inquiry because Mark did
                   not move for joinder of Cheryl until after he signed the MOU. Generally,
                   when parties to a divorce have entered into a signed, written settlement
                   agreement, such agreement is binding and "can be enforced by motion in
                   the case being settled." Grisham, 128 Nev. at , 289 P.3d at 233. Mark
                   attempts to avoid the binding effect of the agreement by arguing both that
                   Cheryl was a necessary party under NRCP 19(a) and that the MOU was
                   subject to being set aside based on the parties' mutual mistake as to the
                   nature of Cheryl's interest in the Wilson property. We address these
                   arguments in turn.
                   Necessary party
                               As noted above, in order to render a complete decree in any
                   civil action, "all persons materially interested in the subject matter of the
                   suit [must] be made parties so that there is a complete decree to bind them


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                   all."   Olsen Family Trust, 110 Nev. at 553, 874 P.2d at 781. For this
                   reason, the Nevada Supreme Court has held that the failure to join a
                   necessary party to a case was "fatal to the district court's judgment."   Id.
                   at 554, 874 P.2d at 782; see also Univ. of Nev. v. Tarkanian, 95 Nev. 389,
                   396, 594 P.2d 1150, 1163 (1979) (explaining that "the question of waiver is
                   not appropriate to the determination of [a joinder] issue, and the trial
                   court or the appellate court may raise the issue sua sponte").      Thus, if
                   Cheryl was a necessary party, the district court's judgment was invalid to
                   the extent it resolved any issues for which Cheryl's joinder was necessary.
                   See Tarkanian, 95 Nev. at 396, 594 P.2d at 1163.
                                As discussed above, NRCP 19(a) requires joinder in three
                   situations—when the failure to join the individual will prevent the parties
                   to the case from obtaining complete relief, when the individual claims an
                   interest in the subject matter of the action and adjudication in the
                   individual's absence may inhibit the ability to protect that claimed
                   interest, and when the individual claims an interest in the subject matter
                   of the action and adjudication in the individual's absence potentially
                   subjects an existing party to "double, multiple, or otherwise inconsistent
                   obligations." In applying NRCP 19(a), the Nevada Supreme Court has
                   broadly indicated that a third party must be joined if the third party's
                   interest "may be affected or bound by the decree," or if the third party
                   "claims an interest in the subject matter of the action."     Olsen Family
                   Trust, 110 Nev. at 553-54, 874 P.2d at 781-82.
                                Generally, the subject matter of a divorce action will involve
                   the division of the parties' property, but may not necessarily require the
                   court to determine title to the property or otherwise establish ownership.


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                   See Aniballi v. Aniballi, 842 P.2d 342, 343 (Mont. 1992) (noting that "a
                   decree of dissolution resolves rights to the marital property as between the
                   parties seeking dissolution of the marriage, but will not determine title in
                   rem").   Instead, the parties may simply divide their interest in the
                   property, leaving any interests of third parties undisturbed.       See id.; see
                   also Walters v. Walters, 113 S.W.3d 214, 219 (Mo. Ct. App. 2003)
                   (recognizing that the trial court did not need to determine the relative
                   interests of a couple and the husband's mother in property being divided
                   in a divorce proceeding, but could properly divide only the couple's interest
                   by awarding " laJny interest the parties may have' in the property).
                                 Nevertheless, in some cases, such as this one, the parties may
                   dispute the extent of their interest in the property, putting ownership of
                   the property at issue in the divorce proceeding     See Callnon v. Callnon, 46
                   P.2d 988, 990 (Cal. Ct. App. 1935) (recognizing that parties to a divorce
                   "may seek a determination of their property rights"). As discussed above,
                   in that situation, a third party who claims an interest in the property
                   generally may be joined to the action and the action will be binding on
                   that party.    See id.   Conversely, any third party not joined will not be
                   bound by the• determination of ownership in the divorce action.             See
                   Johnson, 93 Nev. at 658, 572 P.2d at 927 (recognizing that a third party
                   would not be legally bound by an order entered in an action to which the
                   third party had not been joined).
                                 Here, insofar as Cheryl will not be bound by the action if she is
                   not joined, it does not appear that her ability to protect her claimed
                   interest in the Wilson property would be impaired or impeded, as she will
                   be able to file a separate action to enforce her claimed interest.          See


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                   Aniballi, 842 P.2d at 343 (noting that a parent who claimed an interest in
                   the parties' marital residence would not be prevented by the divorce
                   decree from bringing a separate action to determine the interest in the
                   property). Indeed, Sophia asserted in her appellate brief that Cheryl has
                   filed a lawsuit in Orange County, California, against Mark and Sophia.
                               As a result, Cheryl does not appear to be a necessary party
                   under NRCP 19(a)(2)(i), which requires joinder when a third party claims
                   an interest in the subject matter of the action and the third party's
                   absence from the litigation may impair or impede the person's ability to
                   protect that interest. But that ability to file a separate action raises
                   questions as to whether, in Cheryl's absence, the existing parties will be
                   able to obtain complete relief, and whether the failure to join Cheryl may
                   leave Mark "subject to a substantial risk of incurring double, multiple, or
                   otherwise inconsistent obligations," and thus, whether Cheryl may be a
                   necessary party under NRCP 19(a)(1) or NRCP 19(a)(2)(ii).                See
                   Tarkanian, 95 Nev. at 397-98, 594 P.2d at 1164 (concluding that complete
                   relief could not be afforded among existing parties where resolution in the
                   absence of a third party would not "completely and justly" determine the
                   rights and obligations presented by the action); see also NRCP 1 (providing
                   that the rules of civil procedure "shall be construed and administered to
                   secure the just, speedy, and inexpensive determination of every action").
                               Because the district court erroneously determined that it did
                   not have authority to join Cheryl based on the location of the Wilson
                   property and the nature of the action as a divorce proceeding, the court
                   failed to consider whether complete relief could be afforded among the
                   parties in Cheryl's absence, or whether Cheryl's absence might leave any


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                   of the existing parties subject to a substantial risk of double, multiple, or
                   otherwise inconsistent obligations. But insofar as Cheryl may seek relief
                   in another jurisdiction with regard to the Wilson property, it appears
                   reasonably possible that her absence may cause any relief afforded in the
                   district court to be incomplete, or may leave Mark subject to a potential
                   risk of multiple, double, or inconsistent obligations.   See NRCP 19(a)(1),
                   (a)(2)(ii).
                                 Determining the potential effect of any litigation by Cheryl
                   may require the resolution of factual issues. Therefore, we reverse the
                   district court's denial of joinder and remand this case to the district court
                   for that court to consider whether Cheryl was a necessary party within the
                   meaning of NRCP 19(a).        See Ryan's Express Transp. Servs., Inc. v.
                   Amador Stage Lines, Inc., 128 Nev. „ 279 P.3d 166, 172 (2012) ("An
                   appellate court is not particularly well-suited to make factual
                   determinations in the first instance."); see also Nev. Power Co. v. Fluor
                   108 Nev. 638, 645, 837 P.2d 1354, 1359 (1992) (recognizing that an
                   evidentiary hearing may be necessary in order to properly decide disputed
                   questions of fact).
                                 If the district court determines that Cheryl is a necessary
                   party, the court must then determine the relative rights of Mark, Sophia,
                   and Cheryl in the Wilson property, see Callnon, 46 P.2d at 990, and must
                   revisit the portions of the MOU concerning that property, as appropriate.
                   In the event the district court does not find the circumstances to fall
                   within the parameters of NRCP 19(a), Mark contends the MOU may still
                   be set aside based on mutual mistake. Thus, in the final section of this
                   opinion, we turn to his mutual mistake argument.


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                   Mutual mistake
                               Mark argues the district court erred by failing to set aside the
                   MOU based on mutual mistake and other contract defenses. Sophia, on
                   the other hand, contends the MOU was properly upheld because no
                   mutual mistake occurred. A contract may be set aside based on mutual
                   mistake, which "occurs when both parties, at the time of contracting,
                   share a misconception about a vital fact upon which they based their
                   bargain." Gen. Motors v. Jackson, 111 Nev. 1026, 1032, 900 P.2d 345, 349
                   (1995); see also May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257
                   (2005) (providing that a settlement agreement is a contract that is
                   governed by contract law).
                               In the divorce decree, the district court found "good cause" to
                   adopt the MOU over Mark's objections. And in a related order, the court
                   concluded that Mark and Sophia had entered into a valid and binding
                   agreement pursuant to Casentini v. Hines, 97 Nev. 186, 625 P.2d 1174
                   (1981), which recognizes that a stipulation is enforceable if it is in writing
                   and signed by the party against whom enforcement is sought. The district
                   court did not, however, specifically address Mark's mutual mistake
                   argument by making findings as to whether the MOU was based on the
                   parties' "misconception about a vital fact." See Gen. Motors, 111 Nev. at
                   1032, 900 P.2d at 349.
                               In particular, although the district court generally stated at
                   the hearing on the motion to set aside the MOU that certain facts were
                   known to the parties at the time they entered into the agreement, nothing
                   in the record indicates that the court considered Mark's contentions
                   regarding his and Sophia's understanding of their respective rights as to


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                   the Wilson property, and the effect of that understanding on their decision
                   to execute the MOU. See id. Thus, the district court erred by concluding
                   the MOU was enforceable without properly addressing Mark's mutual
                   mistake argument. Because determining the understanding of the parties
                   when they entered into the MOU will require the resolution of factual
                   issues, we also reverse those portions of the district court's orders that
                   denied Mark's motion to set aside the MOU based on mutual mistake. See
                   Ryan's Express, 128 Nev. at ,279 P.3d at 172.
                                If the district court concludes that Cheryl is a necessary party,
                   it may not be necessary for the court to revisit the mutual mistake and
                   other related arguments. But if the district court finds Cheryl is not a
                   necessary party, the court must address the mutual mistake and other
                   contract defense arguments to determine whether Mark has demonstrated
                   grounds under general contract law for setting aside the MOU. 5



                         5 Ifthe court concludes that Cheryl was not a necessary party and
                   that no contractual basis for setting aside the MOU exists, then Mark
                   waived his argument that Cheryl should have been joined as a permissive
                   party under NRCP 20 by entering into a binding settlement agreement
                   that distributed the parties' interests in the Wilson property without
                   seeking joinder of Cheryl. See McKellar v. McKellar, 110 Nev. 200, 202,
                   871 P.2d 296, 297 (1994) (explaining that a waiver may be implied from
                   "conduct which evidences an intention to waive a right, or by conduct
                   which is inconsistent with any other intention than to waive a right"); see
                   also Nev. Gold St Casinos, Inc. v. Am. Heritage, Inc., 121 Nev. 84, 89, 110
                   P.3d 481, 484 (2005) ("Waiver is generally a question of fact. But when
                   the determination rests on the legal implications of essentially
                   uncontested facts, then it may be determined as a matter of law."
                   (citations omitted)). Thus, we do not address Mark's NRCP 20 arguments
                   further in this opinion.

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                                                 CONCLUSION
                                Because the district court improperly determined that it did
                   not have jurisdiction to join Cheryl to a divorce proceeding involving out-
                   of-state property, we reverse the district court's denial of joinder and
                   remand this matter to the district court for that court to consider whether
                   Cheryl is a necessary party within the meaning of NRCP 19(a). If the
                   court determines Cheryl is a necessary party under that rule, the court
                   must then consider what interest, if any, Cheryl has in the Wilson
                   property and must revisit the portions of the MOU relating to that
                   property, as appropriate. If the district court does not find Cheryl to be a
                   necessary party, then the court must consider Mark's mutual mistake and
                   other contract arguments to determine whether the MOU must be set
                   aside on a contract basis, and conduct any further proceedings as
                   necessary. The parties do not challenge any other aspect of the divorce
                   decree. As a result, we affirm the status of the parties as divorced.



                                                                                       C.J.
                                                        Gibbons

                   We concur:



                   Tao
                            ir                     J



                                                   J.
                   Silver




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