Nelson v. Nelson & The Unappealable JPI

In Nelson, the Nevada Court of Appeals recently took the opportunity to clarify the unique procedural position of the standard joint preliminary injunction (“JPI”) issued at the request of either party at the beginning of divorce actions in Clark County, Nevada. See generally, EDCR 5.517.

Grants and denials of preliminary injunctions are known to lawyers to be appealable under NRAP 3A(b)(3). However, the Court of Appeals definitively established in Nelson that JPIs issued pursuant to EDCR 5.517 are not appealable under that rule because those injunctions are not granted or denied pursuant to NRCP 65. Nelson v. Nelson, 136 Nev. Advance Opinion 36 (Nev. 2020). NRCP 65 directs the court to make a preliminary finding as to the likelihood of the movant to ultimately succeed on the merits and whether the nonmoving party’s conduct, if not enjoined, would cause irreparable harm. Id. Moreover, NRCP 65(e) affirmatively disclaims its applicability in divorce proceedings by establishing “[t]his rule is not applicable to actions for divorce, alimony, separate maintenance, or custody of children.” NRCP 65(e). The JPI, on the other hand, is issued as a matter of course to enjoin the parties from transferring or wasting assets.

EDCR 5.517 establishes that the court shall issue a joint preliminary injunction at the written request of either party in a divorce proceeding. The language used is mandatory, and the Court is not required to make any specific factual findings prior to issuing it. Accordingly, there are no factual findings to be reviewed for clear error on appeal. This briefly seems to make the mandate to district courts to issues JPIs practically unenforceable, but the Court of Appeals immediately describes the proper procedure to enforce EDCR 5.517. Because EDCR 5.517 establishes a nondiscretionary mandate to district courts to issue JPIs upon the request of the parties, a writ of mandamus may be applied for in the event a rogue court decides not to issue one. Nelson at6. Accordingly, Nelson establishes that writ relief is the proper procedure for disputing a district court judge’s decision to issue or not issue a JPI at the beginning of a divorce case in Clark County, Nevada.

Published by johnrholiday

John Holiday is the owner of the John Holiday Law Firm where he focuses his practice on the areas of child custody, child support, and domestic violence. John has been practicing in Nevada since 2013. Prior to becoming an attorney, John served two tours in Iraq with the United States Marine Corps and taught world history at Rancho High School in Las Vegas, Nevada. John speaks Spanish and Portuguese fluently and is available to consult with clients in those languages.

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