HUNEYCUTT VS. HUNEYCUTT (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

On a motion to remand pending appeal so the appellant could pursue NRCP 60(b) and NRCP 59(a) motions based on newly discovered community property, the court denied the motion and clarified the procedure. Because jurisdiction lies with the Supreme Court during the pendency of an appeal, the district court cannot grant a new trial or Rule 60(b) relief while the appeal is pending. Adopting for civil cases the procedure from Layton v. State, 89 Nev. 252, 510 P.2d 864 (1973), and Smith v. Pollin, 194 F.2d 349 (D.C. Cir. 1952), the court held the appellant should file her motions in the district court; if that court is inclined to grant relief, it should so certify to the Supreme Court, at which juncture a request for remand would be appropriate. It was therefore unnecessary and improper to apply to the Supreme Court for remand.

In plain language

A wife appealed the parts of a divorce decree that divided the couple's property. While that appeal was pending, she discovered what she said was a substantial amount of community property that existed at the time of the divorce but had not been included in the court's division. She asked the Nevada Supreme Court to send the case back down (remand) so she could file motions in the district court for relief from the judgment (NRCP 60(b)) and for a new trial (NRCP 59(a)). The Supreme Court denied the motion to remand, but explained the correct procedure. Because jurisdiction over the case rests with the Supreme Court while an appeal is pending, the district court cannot grant a new trial or relief from judgment on its own. The proper approach, borrowed from federal practice and the court's own criminal decisions, is for the party to file the motions in the district court; if that court indicates it is inclined to grant relief, it certifies that to the Supreme Court, and only then is a request for remand appropriate. So the wife did not need the Supreme Court's permission to file - she should file in the district court first.