FESSLER VS. FESSLER (FAMILY)

Key holdings

Practitioner summary

The court evaluated appellate jurisdiction sua sponte. Under NRAP 3A(b)(1), an appeal lies from a final judgment, defined in Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000). The decree of divorce here did not resolve child custody or child support, and appellant conceded that no final judgment had been entered and that the decree had not been certified as final under NRCP 54(b). The court accordingly held the decree was not appealable under NRAP 3A(b)(1). Citing Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013), the court reiterated that it "may only consider appeals authorized by statute or court rule." Finding no such authorization for an appeal from a decree that only partially resolves a divorce complaint, the court dismissed for lack of jurisdiction. It expressly declined to reach the alternative question whether appellant had waived the right to appeal under the decree's stipulation language. In a footnote, the court admonished appellant's counsel for failing to file proof of service of the response on respondent, a non-e-filer, as required by NRAP 25(d). Invoking NRAP 2, the court considered the response in this instance because appellant had filed a reply.

In plain language

This is a divorce case. After the trial court entered a decree of divorce, the wife tried to appeal it to the Nevada Supreme Court. Before the appeal could proceed, the Supreme Court noticed two potential problems and asked the wife to explain why the appeal should not be thrown out. The first problem was that the decree did not appear to be a "final judgment." In Nevada, you generally cannot appeal a trial court ruling until the trial court has finished deciding all the issues in the case. Here, the decree had not resolved child custody or child support, so there were still loose ends. The second problem was that the decree itself stated that the parties had agreed to give up their right to appeal. The wife responded that she had not actually agreed to waive that right. But she also appeared to acknowledge that no final judgment had been entered and that the trial court had not taken the special step (under a rule called NRCP 54(b)) that can sometimes make a partial ruling appealable early. Because the decree was not final and no rule or statute allowed an appeal from this kind of partial decree, the Supreme Court ruled it had no jurisdiction (no legal authority) to hear the appeal and dismissed it. The court did not need to decide the separate question about whether the wife had waived her appeal rights. The order also includes an admonishment to the wife's counsel for failing to provide proof that the response to the show-cause order had been served on the husband, who represents himself and is not an electronic filer. The court considered the response anyway in this single instance because the husband had filed a reply.