DOBSON VS. DOBSON (DIVORCE)

Key holdings

Practitioner summary

Although an order merely quashing service of process is generally not appealable (Orme v. District Court, 105 Nev. 712, 782 P.2d 1325 (1989); Jarstad v. National Farmers Union, 92 Nev. 380, 552 P.2d 49 (1976)), by granting the motion to quash "in all respects" and declaring the divorce decree null and void, the district court necessarily determined that it never acquired personal jurisdiction and that the decree was void. A judgment based on a void order of publication or otherwise unsupported by proper service is void. Foster v. Lewis, 78 Nev. 330, 337, 372 P.2d 679, 682 (1962); Doyle v. Jorgensen, 82 Nev. 196, 201, 414 P.2d 707, 710 (1966); Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987). The proper method for attacking a void judgment is a motion or independent action under NRCP 60(b)(3), under which the movant need only establish that the judgment is void. A 60(b)(3) motion based solely on a claim of lack of proper service is not a general appearance and does not confer personal jurisdiction; seeking any relief beyond a declaration of defective service or voidness (for example, relief for mistake, inadvertence, or excusable neglect) constitutes a general appearance. Doyle; Deros v. Stern, 87 Nev. 148, 151, 483 P.2d 648, 650 (1971). Because the district court effectively treated Cecile's motion as an NRCP 60(b)(3) motion and its order declaring the decree void disposed of the matter, the order was appealable. Holiday Inn v. Barnett, 103 Nev. 60, 732 P.2d 1376 (1987); Smilanich v. Bonanza Air Lines, 72 Nev. 10, 291 P.2d 1053 (1956). Motion to dismiss the appeal denied.

In plain language

Theodore Dobson moved from Germany to Las Vegas and filed for divorce from his wife, Cecile, who remained in Germany. He served her by newspaper publication, stating in his affidavit that he did not know her current address. The court entered a default decree dissolving the marriage. Cecile, through a Nevada lawyer, made a "special appearance" (appearing only to contest jurisdiction, without submitting to the court's power over her) and moved to quash the service, claiming Theodore committed fraud by listing an incorrect address and mailing the papers there. The district court granted her motion "in all respects" and declared the divorce decree null and void. Theodore appealed, and Cecile moved to dismiss the appeal, arguing that an order quashing service of process is ordinarily not appealable. The Nevada Supreme Court disagreed. By granting the motion to quash, the district court necessarily determined that it had never obtained jurisdiction over Cecile and, therefore, that the divorce decree was void. The court explained that the proper way to attack a void judgment is a motion under NRCP 60(b)(3), and that a motion resting solely on lack of proper service is not a "general appearance," so it did not subject Cecile to the court's personal jurisdiction. Because the district court effectively treated Cecile's motion as a Rule 60(b)(3) motion and its order declared the decree void, that order was appealable. The court denied Cecile's motion to dismiss the appeal and set a briefing schedule.