BAILEY VS. BAILEY (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

The sole issue was whether a divorce decree ordering the father to pay child support 'until further order of the court, or until they reached the age of their majority' states a claim, enforceable against his estate, for installments accruing after his death. The mother sued the executrix of the deceased father's estate for post-death support; the district court dismissed for failure to state a claim. The court noted that at common law a father's duty to support his children ended at his death. Reviewing the split of authority - courts declining to charge the estate (e.g., Streight v. Streight's Estate, 360 P.2d 304 (Ore. 1961)) and courts permitting it (e.g., Newman v. Burwell, 15 P.2d 511 (Cal. 1932); Murphy v. Moyle, 53 P. 1010 (Utah 1898)) - the court held that NRS 125.140 permits a district court, in the exercise of sound discretion, to order that child support payments bind the father's estate. However, it declined to follow California and Utah in treating an order for support 'until further order of the court' or 'during minority' as such an exercise of discretion, adopting instead the Washington rule that a decree imposing on the father a greater duty than the common law must specifically state that the obligation is to survive the death of the obligor. Scudder v. Scudder, 348 P.2d 225, 228 (Wash. 1960). Because of the many unanswered questions attending enforcement against a decedent's estate (priority, credits, modification, duration of administration), the court urged caution and legislative action, noting alternatives such as a contractual charge on the estate (NRS 123.080) or court-ordered life insurance or a trust for the child. As the decree did not specifically state the support obligation would survive death, the dismissal was affirmed.

In plain language

A mother who had been awarded custody of her two children in a 1954 divorce sued her deceased ex-husband's estate for child support that would come due after his death. The divorce decree had ordered the father to pay $50 per month per child 'until the further order of the court or until the children reached their majority.' The father paid faithfully until he died in September 1968. The mother then filed a claim against his estate for $3,850 - the support she calculated would accrue from his death until each child turned 18. The estate rejected the claim, and the trial court dismissed her lawsuit, suggesting she could instead seek a family allowance in the probate proceedings. The single question for the Nevada Supreme Court was whether a decree ordering child support 'until further order of the court, or until they reached the age of their majority' allows the mother to collect installments that come due after the father's death, as a claim against his estate. The court had never squarely decided this before. The court explained that at common law a father's duty to support his children ended when he died. It held that Nevada's statute (NRS 125.140) does permit a divorce court, in its discretion, to order that child support payments bind the father's estate - but a decree must specifically say that the obligation is to survive the father's death. A generic order to pay 'until further order of the court' or 'during minority' is not enough to create an estate obligation. The court declined to follow states (like California and Utah) that had read such generic language to bind the estate, and instead adopted the Washington rule requiring the decree to expressly state the obligation survives death. The court also catalogued the many unanswered practical questions that arise when support is charged against an estate (priority among children, credits for insurance or Social Security, modification after death, keeping the estate open during minority) and urged that these be addressed by comprehensive legislation. It suggested safer alternatives - a father can contractually bind his estate, or a court can require life insurance or a trust for the children. Because this decree did not specifically state the obligation would survive death, the court affirmed the dismissal.