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CODE: 2650JOHN P. SPRINGGATE, ESQ.Nevada Bar #1350203 South Arlington AvenueReno, NV 89501Telephone 775.323.8881Attorney for Plaintiff

IN THE FAMILY DIVISION7 IN THE SECOND JUDICIAL DISTRICT COURT O F THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

ASHWIN JOSHI,Plaintiff, CASE NO .: DV08-01168

vs. DEPT. NO.: 14BHARTI JOSHI,

Defendant.

OPPOSITION TO REQUEST FOR RECONSIDERATIONCOMES NOW the Plaintiff, ASHWIN JOSHI, by and through his counsel of record,

JOHN P. SPRINGGATE, ESQ., and opposes the Motion of Zack Coughlin, Esq., representinghimself, for reconsideration of the Order After Trial. This opposition is made and based upon theattached Memorandum of Points and uthorities , and all the papers and pleadings on file in thisaction.

DATED this / 3 day of May, 2009.

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MEMORANDUM OF POINTS AND AUTHORITIESMr. Coughlin, via e-filing, filed a request for reconsideration and extension of time to

respond. A stipulation to extend the time for filing a motion for reconsideration was alreadygranted to Washoe Legal Services, which is the attorney of record for Ms. Joshi. As Marc Ashley,Esq., or Caryn Sternlicht, Esq., of Washoe Legal Services are representing Ms. Joshi, Mr.Coughlin's motion is addressed herein only insofar as it concerns the sanctions assessedindividually against him under NRS 7.085.

A Court has the inherent authority to reconsider its prior orders. Trail v. Farreto, 91 Nev.401, 536 P.2d 1026 (1975). That authority is further provided by local rule, in our case, WashoeDistrict Court Rule 12(8). However, the Nevada Supreme Court has held that points orcontentions not raised in the first instance cannot be raised on rehearing. Achrvm v. ExpresswayPlaza Ltd., 112 Nev. 737, 742, 917 P.2d 447 (1996), and that failure to make the arguments in thefirst instance constitutes a waiver. See, also, Chowdhry v . NLVH, Inc., 111 Nev. 560, 893 P.2d385 (1995).

More importantly, rehearings are appropriately only w here "substantially different evidenceis subsequently introduced, or the decision is clearly erroneous". Masonry Tile ContractorsA ss'n. v. Jolley, Urga W irth, L td., 113 Nev. 737 , 941 P. 2d 486 (199 7). And, the trial judge hasgreat discretion on the question of rehe aring. Harvey 's W agonwheel, Inc. v. MacSw een, 96 Nev.215,; 606 P.2d 1095 (1980).

Mr. Coughlin puts forward no new facts, or new law , which would justify any change inthe Court s prior decision.

Prior ProceedingsThe parties previously appeared before the Honorable Scott Jordan, and attempted to settle

the matter at a Settlement Conference in October, 2008. At that time, the parties left with a draftsettlement, which would have be en along the same lines as that proposed at trial, to-wit: that Mr.Joshi would take essentially all of the community debt, and would not pay alimony. Ms. Joshirejected that settlement, and at trial, the parties again tried to settle for approxim ately one and one

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half hours of their allocated trial time. Settlement was unavailing and the parties proceeded totrial; due to the loss of trial time, the trial was continued to a nother day for co nclusion.

3 The Argument for Reconsideration4 Mr. C oughlin's points and authorities in support of his position are e ssentially unavailing5 because they address a different issue. The cases, when read, address the issue of whether a party6 can alleviate a pre-existing alimony d ebt or arrearage by pa ying outstanding b ills to a third party,7 and claim a set off' of the amount due the obligee. While those cases would be in agreement with

Nevada practice, this was not the situation presented herein.9 Mr. Joshi and Ms. Joshi had approximately $16,000.00 of community debt that was due

1 and needed to be paid to third parties. As Mr. Coughlin correctly points out on page 17 of his11 Motion, creditors of such community debt are unaffected by anything in a divorce decree from12 pursuing either of the parties for repayment. The community creditors could pursue either Ms.

Joshi or Mr. Joshi. It appeared from the evidence at trial that Mr. Joshi was paying the vastamount of the outstanding community debt. He proposed to the Judge that in lieu of payingalimony, the Court utilize the after-tax differential between their incomes to pay that communitydebt. This would be a benefit to both parties, reduce their joint debt, and improve both of theircredit scores.

Mr. Coug hlin's position at trial, which both judges tried to dissuade him from, and whichhe re-argues in his Motion is incorrect in that it was based upon a flawed premise. He seemed

2 to be arguing for a equal distribution of debt, with the know ledge that Ms. Joshi w ould essentially21 be judgment proof because of her limited assets and incom e. Thus, in Mr. Coughlin's world, she22 would continue to receive alimony, but would not have to pay her share of the community debt.23 This argument is essentially grounded in bad faith; Mrs. Joshi is arguing that she should be24 attributed debt, with no intention of paying, knowing she will still receive alimony.25 However, beyond the bad faith argument, the true flaw in the argument is revealed at page26 10, where Mr. Coughlin argues that should Ms. Joshi have been ordered to pay half of the27 community credit card debt, and that any subsequent failure on her part to do so could likely not28 be used as a proper basis to set off any alimony award received. This is incorrect. As Mr.

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Coughlin notes previously, the third party creditors would not be restrained by the divorce decree.Thus, should Ms. Joshi fail to pay her attributed share of comm unity debt, they would proceed forcollection against Mr. Joshi. If Mr. Joshi's monthly payments increase, due to her failure to paythe debt, he could most certainly move the Court for a m odification of his alimony award to reducethe same based upon the fact that his monthly expenses had increased. Alimony is modifiablebased upon a change of circumstances, and that change in attribution of debt would most clearlybe a chang e of circumstance affecting his ability to pay. See NRS 125.150. Her failure to paythe debt would also affect her perceived need, the other half of the alimony equation.

In order to protect Ms. Joshi's potential claim to alimony, in the event that Mr. Joshi shouldbe unable to pay these community debts that he was assuming, it was Senior Judge Jordan'ssuggestion at the Settlement Conference that her right to alimony be secured by 1.00 per year forfive (5) years, so that if there was a default in the payment of the community debts, she would stillhave an alimony award, and she could move for a modification and increase of the alimony. Thisformat was urged upon by the Court at trial, and memorialized in the Order After Hearing. TheCourt recognized the sense of this proposal, in that the great likelihood would be that if Mr. Joshiwas unable to pay the community debt he would have to file bankruptcy, and were that to happen,Ms. Joshi would have to file bankruptcy as well.

Respectfully, counsel misunderstands the law in this matter and has not thought throughhis position. Siragusa v . S iragusa 108 Nev. 987, 843 P.2d 807 (1992) clearly holds modificationof an alimony award w ould be appropriate based upon a discharged property settlement agreement.Counsel's position has been throughout that Ms. Joshi should be awarded alimony and thecommunity debt. However, he has made it clear that she would discharge or be non-collectible onher debt, not recognizing that either Mr. Joshi or the debtors would come after her for the balanceof the payments. Mr. Joshi, under Siragusa could certainly use that as grounds for anymodification of any alimony that he was otherwise awarded to pay. In lieu of all the above heoffered to pay the debt and not pay her alimony.

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ESanctionsNRS 1 8.010 provides that the Courts can liberally construe NRS 18.010(2)(b) in favor of

awarding attorney s fees in all appropriate situations. The Legislature expressed an intent that theCourt award attorney s fees and impose sanctions under NRCP 11 in all appropriate situations inorder to punish and deter frivolous or vexatious claims and defenses, due to the burden suchclaims and defenses placed on judicial resources. See, also, Trustees ofthe Plumbers PipefittersUnion Local 525 Health Welfare Trust Plan v. Developers Surety Indemnity Co., 120 Nev.56, 63, 84 P.3rd 59 (2004). The language of NRS 7.085 is very similar to that of NRCP 11, andthe intent of the legislature is clear.

10 CONCLUSIONMrs. Joshi s pursuit of this matter w as frivolous or vexatious, in that it was not grounded

under existing law, and in fact, was essentially urging a distribution of debts and assets in badfaith. Under any set of circumstances, we would end up in the same place: Mr. Joshi will end uppaying the vast majority of the com munity debt, and that was wha t he proposed to the Court. Inthe event that the p arties have to discharge those obligations, Ms. Joshi s right to alimony wouldbe maintained. The award was straight forward reasonable acceptable both to the SettlementJudge, the T rial Judge, and cou nsel for Mr. Joshi. It is regrettable that M s. Joshi s counsel did n otrecognize the v alidity of that position, and continues to argue that his view of the facts and law isaccurate. History and experience would suggest that he is not correct, and his motion for

20 reconsideration is more of the same. Whe refore, the Order should be maintained, and the Request21 for Reconsideration denied, so that this matter m ay m ove to conclusion.22 DATED this day of May, 2009.23

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CERTIFICATE OF SERVICEPursuant to NRCP 5 b), I hereby certify that I am an employee of THE LAW OFFICES OF

JOHN SPRINGGATE, and that on this date I personally served at Reno, Nevada, a true copy of

the within OPPOSITION TO REQUEST FOR RECONSIDERATION, fully addressed to:Zack Coughlin, Esq.945 West 12th Street

6 Reno, NV 895037 Caryn Sternlicht, Esq.Washoe Legal Services299 S. Arlington AvenueReno, NV 89501

X for mailing by first class mail , postage prepaidby personal deliveryby telephonic facsimileby Federa l Express or other overnight deliveryby placing a true copy thereof for collection and delivery by Reno/CarsonMessenger Service on this date.

AFFIRMATION PURSUANT TO NRS 239B 3The undersigned does hereby affirm that the preceding document does not contain the

social security number o any personDated this / day of May, 2009.

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