BALLIN VS. BALLIN (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The issue was whether a divorce decree that ratified, approved, and confirmed a property settlement and directed that it survive constituted an "installment judgment for alimony and support" modifiable under NRS 125.170. The court reviewed the historical distinction between mere approval or ratification of an agreement and its adoption or incorporation (Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131; Finley v. Finley, 65 Nev. 113, 189 P.2d 334, 196 P.2d 766) and the 1953 addition of NRS 123.080(4), which gives a ratified, adopted, or approved contract "the same force and effect and legal consequences as though the contract were copied into the decree," which the court construed to effect a merger. The court held NRS 123.080(4) did not govern because the agreement expressly provided it would not merge but would survive, could be modified only by further written agreement, and the decree expressly directed survival. Relying on Curtis v. Curtis, 22 Conn. Sup. 349, 173 A.2d 137, aff'd 148 Conn. 733, 173 A.2d 140, the court held it would be anomalous to enforce a Nevada decree contrary to its own survival provision. A support clause should, under ordinary contract principles, survive a subsequent decree where the parties so intended and the court directs survival. The court distinguished authorities voiding no-modification provisions in adopted agreements (e.g., Simpson v. Superior Court, 87 Ariz. 350, 351 P.2d 179), none of which involved a decree directing survival, and declined to extend the rule that spousal agreements do not bind the divorce court in the original proceeding (Lewis; Drespel v. Drespel, 56 Nev. 368, 45 P.2d 792) to post-divorce revision of a non-merged agreement. The court therefore concluded the decree was not an installment judgment for alimony under NRS 125.170 and the district court lacked jurisdiction to modify. In a footnote the court noted that under Folks v. Folks, 77 Nev. 45, 359 P.2d 92, an installment alimony judgment was modifiable even absent an express reservation before the 1961 amendment of NRS 125.170, but that its disposition made resolution of the amendment's retroactivity unnecessary.

In plain language

Before their 1956 Nevada divorce, Robert and Mary Ballin signed a detailed written separation agreement, each with their own lawyer. It divided their property and required Robert to pay Mary $16,000 a year (in monthly installments) for support until she died or remarried. The agreement said it could only be changed by another written agreement signed by both of them, and that it would "survive" any divorce decree rather than be swallowed up by it. When Mary got her Nevada divorce, the decree "ratified, approved and confirmed" the agreement and expressly directed that it survive the decree. Years later, Robert asked the court to reduce or end the support payments. The trial court ruled it had no power to do so, and Robert appealed. The key question was whether the divorce decree turned the agreement into a court-ordered "installment judgment for alimony" that a court could later modify under Nevada law, or whether the support obligation remained purely a matter of contract. The Nevada Supreme Court held it remained a contract. It explained that a 1953 statute normally causes an agreement that a divorce court approves to merge into the decree, as if copied into it. But here the parties specifically said the agreement would NOT merge and would survive the decree, and the decree itself directed survival. Under those circumstances there was no merger, no modifiable alimony judgment, and the support level was controlled by the contract. Because the parties agreed the support could be changed only by mutual written agreement, the trial court had no power to modify it, and the Supreme Court affirmed.