FOLKS VS. FOLKS (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

On the wife's appeal from orders terminating alimony and denying arrears, allowances, and fees, the court resolved three issues. First, under NRS 125.180 the court has discretionary power to order entry of judgment for arrears resulting from a husband's default; the trial court did not abuse that discretion in declining to enter judgment where the husband had no property to satisfy it and the judgment could prejudice his military standing without benefiting the wife or children. The wife could still enforce accrued installments in an independent action because, as to accrued installments, the divorce judgment is final under NRS 125.170 (De Gategno v. De Gategno, 146 N.E.2d 497; Koster v. Koster, 137 Conn. 707, 81 A.2d 355). Second, on jurisdiction to modify alimony absent an express reservation, the court reviewed the prior rule (Schneider v. Second Judicial District Court, 64 Nev. 26, 176 P.2d 797; Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638; Finley v. Finley, 65 Nev. 113, 189 P.2d 334) and the legislative response: the 1947 amendment of NRS 125.140 (custody and support of minors) and the 1949 enactment of NRS 125.170, providing installment judgments for alimony and support are not modifiable as to accrued installments but only as to installments not yet accrued. The court held NRS 125.170 gives a trial court discretionary power to modify or vacate unaccrued alimony at any time after rendition, without an express reservation of jurisdiction, and the exercise here was not arbitrary or capricious. The court noted this did not limit Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142, which did not involve alimony. Third, because the court had jurisdiction to modify alimony, it also had jurisdiction to allow preliminary counsel fees and suit money (State ex rel. Groves v. First Judicial District Court, 61 Nev. 269, 125 P.2d 723), a matter wholly within its discretion; the denial was not an abuse of discretion on the record presented.

In plain language

A 1950 divorce decree ordered the husband, a serviceman, to pay child support and $75 a month in alimony to the wife, without expressly reserving the court's power to modify the alimony later. Years later the husband, still in the military, asked to terminate the alimony. The wife responded by seeking travel and attorney-fee allowances and asking the court to hold him in contempt and to enter a money judgment for over $3,600 in unpaid alimony. The trial court terminated the alimony going forward, denied the wife's requests, purged the husband of contempt, and refused to enter a money judgment for the arrears. The wife appealed. The Nevada Supreme Court affirmed. On the arrears, it held that entering a money judgment for unpaid support under the statute is discretionary, and given that the husband had no property to satisfy such a judgment and it could harm his military standing without benefiting the wife, the trial court did not abuse its discretion in declining to enter it; importantly, the wife could still enforce the accrued installments through an independent action because the divorce judgment is final as to accrued installments. On the power to modify alimony, the court traced legislative history. Earlier law said a court could not modify alimony unless it had reserved that power. But the Legislature responded to that gap by enacting what became NRS 125.170, providing that installment alimony judgments may be modified as to installments not yet accrued. The court held this gave trial courts discretionary power to modify or vacate unaccrued alimony at any time, even without an express reservation of jurisdiction, and the exercise of that power here was not arbitrary. Finally, because the court had power to modify alimony, it also had discretion over allowances and attorney fees, and its denial of them was not an abuse of discretion.