ENGEBRETSON VS. ENGEBRETSON (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

The wife moved to dismiss the husband's appeal from a January 24, 1956 'Order for Preliminary Allowances' awarding $300 preliminary counsel fees and $100 per month for support pending the litigation, without prejudice to further applications, on the ground that the order was not appealable under Rule 72(b) NRCP. Appellant conceded the long-standing Nevada rule of nonappealability of such orders. Harrison v. Harrison, 54 Nev. 369, 17 P.2d 693 (1932); Kapp v. Kapp, 31 Nev. 70, 99 P. 1077 (1909). He argued the rule was changed by the 1949 enactment (NCL 1943-49 Supp., sec. 9474.01; now NRS 125.170, 125.270), which makes installment judgments for alimony and support nonmodifiable as to accrued installments, contending that some 12 accrued monthly installments were beyond the district court's power to modify. The court held the conclusion did not follow: the appeal was taken not from a judgment for accrued alimony but from the January 24, 1956 order for preliminary allowances, which was in all respects interlocutory, entered without prejudice to future applications, and prior to any proceedings on the merits or toward a final judgment. Such an order was not appealable, and the appeal was dismissed with costs to respondent.

In plain language

While a divorce case was pending, the trial court entered an 'Order for Preliminary Allowances' in January 1956 giving the plaintiff wife $300 in preliminary counsel fees and $100 per month for her support during the litigation. The order said it was without prejudice to the wife's right to apply for further allowances later. The husband filed a notice of appeal from that order, and the wife moved to dismiss the appeal, arguing that such an order is not appealable. The husband admitted that, for many years, orders like this have been treated as not appealable in Nevada. But he argued a 1949 statute changed things by making accrued installments of alimony and support non-modifiable, so that (he said) about 12 months of accrued payments could no longer be modified by the district court. The Nevada Supreme Court rejected the argument. It explained that the husband appealed not from any judgment for accrued alimony, but from the January 1956 order for preliminary allowances itself, which was interlocutory in all respects, made without prejudice to future applications, and entered before any proceedings on the merits or toward a final judgment. Such an order was not appealable, and the appeal was dismissed.