DILLON VS. DILLON (DIVORCE)

Key holdings

Practitioner summary

Following a decree of divorce for the husband, the respondent husband moved (1) to strike the reporter's transcript, (2) to strike twenty-two documents in the record on appeal, (3) to dismiss the appeal from the order denying a new trial, and (4) to dismiss the appeal from the judgment. No bill of exceptions was ever settled. The twenty-two documents, being neither part of the judgment roll (sec. 8828, N.C.L.) nor incorporated in a settled bill of exceptions, were stricken, as was the transcript (served and filed late) under Craig v. Harrah, 65 Nev. 294, and Blouin v. Blouin, 66 Nev. 137. With the record bare of support, the appeal from the order denying a new trial was dismissed. On the motion to dismiss the appeal from the judgment, the chronology was: oral judgment pronounced September 8, 1949; formal judgment and decree filed March 8, 1950; notice of appeal filed April 29, 1950. Although this court has held that a final judgment is rendered on oral pronouncement (Lewis v. Williams), a judgment is final only when it disposes of the issues and determines the costs (Magee v. Whitacre, 60 Nev. 202). A divorce suit, while statutory, partakes of the nature of an equitable proceeding (Thompson v. Thompson, 49 Nev. 375), and costs are discretionary; neither the oral pronouncement nor the formal decree awarded costs. Because discretion to award costs remained until the formal judgment, the oral pronouncement was not the final judgment, and the six-month appeal period ran from the March 8, 1950 formal judgment. The appeal from the judgment was therefore timely, and that motion to dismiss was denied.

In plain language

After a husband was granted a divorce, his wife appealed. Before the appeal could be heard on the merits, the husband filed several motions attacking the wife's appeal papers: to strike the court reporter's transcript, to strike twenty-two documents she had put in the record, to dismiss her appeal from the order denying a new trial, and to dismiss her appeal from the judgment itself. The court granted most of the husband's motions. The twenty-two documents were not part of the official 'judgment roll' and had never been placed into a properly settled 'bill of exceptions,' so they were stricken; the transcript was stricken because it was served and filed too late. With the record gone, the appeal from the order denying a new trial had nothing to stand on and was dismissed. The important question was whether the wife's appeal from the judgment was too late. The judge had orally announced the decision on September 8, 1949, but the formal written judgment was not filed until March 8, 1950; the wife appealed on April 29, 1950. The husband said the six-month clock started with the oral ruling. The court disagreed. A divorce case is equitable in nature, costs are discretionary, and a judgment is not final until it 'determines the costs.' Because neither the oral ruling nor the written decree awarded costs, discretion over costs remained until the formal judgment, so the oral pronouncement was not the final judgment. The six-month period ran from the March 8, 1950 formal judgment, making the appeal from the judgment timely; that motion to dismiss was denied.