DAY VS. DAY (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Collins, J. In a proceeding under NRS 125.180 to reduce accrued arrearages under a 1949 divorce decree to judgment (the underlying agreement having been held merged in the decree, Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964)), the trial court awarded the former wife $12,535.17 plus a $1,500 attorney's fee and costs, but limited interest to arrears accruing on or after January 1, 1960. (1) The court held that installment payments for alimony or child support, once accrued, become vested rights that cannot thereafter be modified or voided (Lockwood v. Lockwood, 160 F.2d 923 (D.C. Cir. 1947)); NRS 125.170 so commands as to alimony/support of the wife, and while NRS 125.140(2) allows modification of child support, that authority is prospective only. The trial court's refusal of retroactive modification was proper, and the same rule barred credit for payments the husband made directly to his son. (2) An attorney's-fee award under NRS 125.180(1), which serves to enforce accrued, vested arrearages, is governed by a different rule than the discretionary suit-money allowance under NRS 125.040 (Allis v. Allis, 81 Nev. 653, 408 P.2d 916), and the amount awarded did not exceed the trial court's discretion. (3) On the cross-appeal, the court reversed the denial of interest on pre-January 1, 1960 arrears; the wife's undecided motion under former District Court Rule XLV (now NRCP 60(b)) did not suspend the finality or operation of the judgment, and because the trial court found the husband had a mandatory duty to furnish annual income statements (repeatedly requested) to enable computation of the payments, there was no basis to deny interest on estoppel or laches. Affirmed on the husband's appeal; reversed and remanded on the cross-appeal to calculate and award the interest.

In plain language

The Days divorced in Reno in 1949, and their divorce decree included an agreement (treated as part of the decree) under which the husband, Fairfield, paid monthly amounts to the former wife, Frances, as 'alimony' for tax reasons; out of those payments Frances agreed to support the children. Years later Frances went to court to collect money Fairfield had fallen behind on. The trial court awarded her about $12,535 in arrears, a $1,500 attorney's fee, and costs, but limited her interest on the arrears to amounts owed from January 1, 1960 onward. Fairfield appealed the award; Frances cross-appealed the interest limitation. The Nevada Supreme Court largely sided with Frances. It held that once payments for alimony or child support come due, they become vested rights that cannot be wiped out or reduced after the fact; any modification works only going forward. So Fairfield could not get credit for money he had paid directly to his son, and could not retroactively cut what he owed. The court also upheld the attorney's fee, explaining that a fee awarded in a proceeding to collect vested arrears does not require the same proof of financial need as 'suit money' during a divorce. On Frances's cross-appeal, the court reversed the interest limitation. An old undecided motion she had filed did not suspend the judgment, and because Fairfield had failed his duty to give her the yearly income statements needed to calculate the payments, there was no basis to deny her interest based on estoppel or delay. The court affirmed Fairfield's appeal and sent the case back to calculate the additional interest.