FOX VS. FOX (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

This was the third appeal in a divorce action concerning whether $123,706.37 in 'unidentified deposits' had to be considered in computing the good will of the family business. See Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965); Fox v. Fox, 84 Nev. 368, 441 P.2d 678 (1968). On the second remand, the court had specifically determined that its first opinion did not intend that any new evidence be taken, directing the lower court to hear objections to the special master's report and enter a second amended decree consistent with the prior opinions. The district court, consistent with those mandates, entered a decree awarding the wife an additional $86,300 for increased good-will value recomputed by treating the unidentified deposits as business income. The husband appealed, contending the lower court erred in not allowing additional evidence to explain the deposits. The court held that while the lower court was constrained to obey the appellate mandates, and although courts have power to correct prior judgments in some circumstances (e.g., fraud, Villalon v. Bowen, 70 Nev. 456, 273 P.2d 409 (1954); mistake, Gunderson v. Barringer, 76 Nev. 133, 350 P.2d 397 (1960)), equity does not require a remand to permit the appellant to proffer explanatory matter he should have adduced at the first hearing. Cf. Drespel v. Drespel, 56 Nev. 368, 45 P.2d 792 (1935). The remaining assignments of error were held equally without merit. Affirmed.

In plain language

This was the third trip to the Nevada Supreme Court in the same divorce case. The dispute centered on how to value the 'good will' of the family restaurant business, and specifically whether $123,706.37 in 'unidentified deposits' should count as business income when calculating that value. In the two earlier appeals, the Supreme Court had already decided how the issue should be handled and, on the second remand, had specifically said no new evidence was to be taken - the lower court was just to hear objections to the special master's report and enter a corrected decree. On remand, the trial court did exactly that, awarding the wife an additional $86,300 to reflect the increased good-will value after treating the unidentified deposits as income. That result was consistent with what the Supreme Court had ordered. The husband appealed again, arguing the trial court should have let him introduce additional evidence to explain the source of those unidentified deposits. But the trial court had been bound to follow the Supreme Court's earlier mandates, which forbade new evidence. In effect, the husband was asking the Supreme Court to change its own prior rulings and give him a fresh chance to explain deposits he should have explained at the very first hearing. The court refused. While courts do have power to correct prior judgments in some situations (like fraud or mistake), equity does not require reopening a case just to let a party present evidence he should have offered the first time around. The court found his other arguments equally without merit and affirmed.