ELSMAN VS. ELSMAN (CHILD CUSTODY)

Key holdings

Practitioner summary

Motion by the respondent (plaintiff ex-husband) to dismiss the defendant mother's appeals from the district court's December 3, 1930 determination denying both parties' motions to modify the custody provisions of the 1927 divorce decree (as modified May 2, 1928) and fixing the mother's visitation, and from the December 23, 1930 order denying her motion for a new trial. Coleman, C.J. Respondent relied on Civil Practice Act sec. 420 (sec. 8909, Nev. Comp. Laws 1929) defining an order, and argued the appeals were untimely and that no appeal lies from denial of a new trial of a motion. Held: the December 3, 1930 determination was a final judgment, not an order or a special order made after final judgment - the 1928 modification, when entered, supplanted the 1927 decree as to custody, and a change which materially affects the judgment and the rights of the parties and involves the exercise of judicial discretion amounts to a new judgment (Gury v. Gury (Cal. App.), 300 P. 81, followed; divorce act secs. 9462-9466, N.C.L. 1929 discussed). The determination remained subject to future modification as the child's best interest requires. The new trial motion and appeal were therefore proper, and the appeal taken February 26, 1931 was within sixty days of the entry of the order denying a new trial in the minute book (entered on or after December 28, 1930). Motion to dismiss denied; petition for rehearing denied October 29, 1931 (2 P.2d 139 supplemented at 3 P.2d 1071), the court adding that in divorce suits authority may be retained to modify the decree as to alimony and custody without destroying finality.

In plain language

After a 1927 Nevada divorce in which Beatrice Elsman was granted a divorce from Ralph Elsman and Ralph was awarded custody of their young son, both parents kept fighting over custody. In 1929 Ralph moved to change the custody terms again, and Beatrice asked for sole custody. On December 3, 1930 the district court denied both requests and fixed Beatrice's visitation at one hour a day during July of each year at the father's Washoe County homes. Beatrice appealed, and Ralph moved to throw the appeals out, arguing the December 3 ruling was just an 'order' (with a short appeal window that had passed), not a 'judgment.' The Nevada Supreme Court refused to dismiss the appeals. It held that a custody determination that materially changes the parties' rights and involves the exercise of judicial discretion is a new final judgment - not a mere order - even though custody arrangements always remain subject to future modification. Because the ruling was a judgment, Beatrice was entitled to move for a new trial and appeal from the denial of that motion, and her appeal was filed within sixty days of the order's entry in the court minutes, which was timely. The court later denied a rehearing.