APPLEBAUM VS. APPLEBAUM (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The court (Mowbray, J.) affirmed in all respects. The principal issue was whether extrinsic fraud voided the 1972 property settlement agreement approved in the parties' first divorce. Distinguishing Moore v. Moore, 78 Nev. 186, 370 P.2d 690 (1962), and Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850 (1948), the court held appellant identified no comparable conduct. Steven submitted to the court the very agreement Geraldine signed, unaltered; that he drafted it and was older and more experienced did not render it fraudulent, and his continued residence in the family home imposed no fiduciary duty on an estranged spouse once he announced his intent to divorce and their interests became adverse. Geraldine conceded she was told to retain counsel of her choice at Steven's expense and consulted an attorney; any limitation of that representation could not be charged to Steven, and the record showed provisions were reviewed critically and an addendum submitted. The court rejected the contention that the district judge was required to apportion the increase in Steven's separate-property business during the first marriage under Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973), holding the Johnson rule applies only where the court must identify community property to effect an equitable division, not where the parties have agreed on a division. It added that even if the agreement were void, evidence supported the finding that any community interest in the business's increased value (under either the Pereira or Van Camp approach, less amounts drawn for family expenses) had been withdrawn for family living expenses. Schulman v. Schulman, 92 Nev. 707, 558 P.2d 525 (1976); Beam v. Bank of America, 490 P.2d 257 (Cal. 1971). Under NRS 125.150, the denial of permanent alimony was a discretionary determination supported by evidence that Geraldine had adequate resources; Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974). The refusal of alimony pendente lite was proper, and Buchanan and Braddock v. Braddock, 91 Nev. 735, 542 P.2d 1060 (1975), were distinguishable because neither reversed a trial court's refusal to grant temporary support. Finally, denial of Steven's request for attorney's fees under NRS 125.150(2) was not an abuse of discretion given his financial security. Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).

In plain language

Geraldine and Steven Applebaum married in 1968, divorced in 1972, remarried in 1973, and sought to end the second marriage in 1975. In the first divorce, the court had approved a property settlement agreement giving Geraldine $15,000 paid in quarterly installments. When the second marriage broke down, Geraldine tried to have that earlier property settlement declared void, claiming Steven had tricked her into signing it. She argued Steven - who was 16 years older and more experienced in business - was in a position of trust, had stayed in the family home during the first divorce, and had misrepresented the size of the community estate, which she said was worth about $1.2 million, making the $15,000 settlement grossly unfair. The district court rejected the fraud claim and upheld the agreement, granted Steven a divorce, awarded Geraldine $12,000 for her share of the community property from the second marriage, and denied her alimony. Steven's request for attorney's fees was denied, and he cross-appealed that. The Nevada Supreme Court affirmed everything. On fraud, it compared her situation to earlier cases where genuine extrinsic fraud existed (a spouse secretly filing before establishing residency, or repudiating a custody promise) and found nothing comparable here. Steven submitted to the court exactly the agreement Geraldine had signed, without altering its terms. That he drafted it and was older and more business-savvy did not make it fraudulent, and his continued residence in the home created no fiduciary duty once he had announced he wanted a divorce - at that point Geraldine was on notice their interests were adverse. She had also been told to hire her own lawyer at Steven's expense, and did consult one. The court rejected her argument that the judge should have separately valued and divided the increase in Steven's separate-property business during the first marriage; that apportionment rule applies only when a court must itself divide community property, not when the parties have agreed on a division. On alimony, the denial was within the court's discretion and supported by evidence that Geraldine had adequate resources to support herself; the cases she cited on temporary alimony were distinguishable. Finally, denying Steven attorney's fees was proper because he was financially secure and able to pay his own.