DAY VS. DAY (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Thompson, J. The court held that a trial court's adoption (or incorporation) of a settlement agreement effectuates a merger of the agreement into the divorce decree, so that the parties' rights thereafter rest on the decree; it followed Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131 (1931), and overruled contrary expression in Finley v. Finley, 65 Nev. 113, 189 P.2d 334 (1948). Building on Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962), the court further held (as to a pre-1953 agreement) that a survival provision in the agreement is ineffective unless the decree itself specifically directs survival; absent a clear and direct expression of survival in the decree, survival is presumed rejected where the decree uses words of merger (adopt, incorporate, approve, ratify). Because the decree merged the agreement, its support provisions were enforceable by a motion for entry of judgment for arrears under NRS 125.180. See NRS 123.080(4). Reversed.

In plain language

A 1949 divorce decree approved, adopted, and confirmed a written agreement that, among other things, provided support for the wife. The agreement itself said it would not be merged into any later divorce decree, but the decree did not say that - it did not state the agreement was separate or that it would survive. Years later, the former wife used a Nevada statute (NRS 125.180) to ask the court to enter a money judgment for unpaid support under the decree. The husband argued her only remedy was to sue on the agreement, and the trial court dismissed her request. The Nevada Supreme Court reversed. It cleared up a long-standing inconsistency in Nevada law by holding that when a court adopts an agreement, the agreement merges into the decree, so the parties' rights rest on the decree (overruling a contrary earlier case). It then added a clear rule: a promise in the agreement that it will survive the divorce means nothing unless the decree itself specifically says the agreement survives. Because this decree did not direct survival, the agreement merged into it, and the wife could enforce the decree's support provisions through NRS 125.180.