CAVELL VS. CAVELL (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The court affirmed the denial of alimony and remanded on child support. Under NRS 125.170 and Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638 (1919), a court lacks power to award or modify alimony after a final divorce decree unless it expressly retained jurisdiction; the decree here did not, and the Legislature amended NRS 125.170 to abrogate the contrary interpretation in Folks v. Folks, 77 Nev. 45, 359 P.2d 92 (1961). Because the appellant was personally served and failed to move under NRCP 60(b) within six months to set aside the default, she was barred from later seeking alimony. On child support, NRS 125.140(2) preserves continuing jurisdiction during the children's minority even where the divorce was obtained by default. The unrefuted record - the child's increased health, dental, educational, and activity expenses, the mother's receipt of Aid for Dependent Children, and the father's lucrative medical practice - suggested a possible abuse of discretion in refusing any increase, and the trial court stated no reason. The court remanded with instructions to reconsider the motion for increased child support and, absent an increase, to set forth with reasonable specificity the reasons for the denial. Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970).

In plain language

Laura Cavell was divorced by default in Nevada in 1969 after being personally served with the papers in Massachusetts; she did not respond, so a default was entered. The decree gave her $125 per month in child support but no alimony. Almost two years later she asked the Nevada court to modify the decree to add alimony, and about 32 months after the decree she filed a separate lawsuit for alimony; she also asked the court to increase child support. The trial court denied the alimony requests and refused to raise child support. The Nevada Supreme Court affirmed the alimony rulings but sent the child support issue back. On alimony: a Nevada court cannot add or change alimony after a final divorce unless it expressly kept ('reserved') that power in the decree - and this decree did not. In addition, because Laura had been personally served, she could have appeared or moved to set aside the default within six months under a procedural rule (NRCP 60) but did not; she was therefore barred from seeking alimony now. On child support: the court always retains authority during the children's minority to adjust support (NRS 125.140(2)). The record showed the child's needs had grown and the mother could not adequately provide (she was receiving public assistance), while the father was a doctor with a lucrative practice - yet the trial court gave no reason for refusing any increase. Because that suggested a possible abuse of discretion, the Court remanded for reconsideration and directed that, if the court still declines to increase support, it must state its reasons.