JOHNSON VS. JOHNSON (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

The court (Zenoff, C.J. (Retired)) reversed an order, entered as part of a proceeding addressing alimony and child-support arrearages, that set aside the appellant's conveyance of his residence to his current wife, Renee, who was not a party. The court held Renee was an indispensable party whose non-joinder required vacatur. Procedurally, the court held (1) the failure to join an indispensable party may be raised sua sponte by the appellate court, and by a party who by reason of the non-joinder may be subjected to inconsistent or double liability, citing Kimball v. Florida Bar, 537 F.2d 1305 (5th Cir. 1976), and related authority; and (2) the objection is not waived by non-assertion at the trial level, citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968). The court declined to apply the Turner v. Staggs presumption (that, absent a transcript, the record supports the lower court) automatically; the record on appeal - the pleadings, Patricia's motion and memorandum admitting Renee was the transferee, the transcript of the first two days of trial, and the trial court's own order - was sufficient to determine Renee's status and non-joinder. Kockos v. Bank of Nevada, 90 Nev. 140, 143, 520 P.2d 1359, 1361 (1974); Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291 (1971). On the merits, a transferee is an indispensable party in an action to set aside the conveyance of transferred property; to order reconveyance without joining the transferee would take property without a hearing and would permit the non-joined transferee to force relitigation of the propriety of the conveyance before any duty to reconvey arose. NRCP 19(a); NRCP 70; Moore v. Moore, 75 Nev. 189, 194, 336 P.2d 1073, 1074-75 (1959). Because Renee was indispensable and was never joined, the order of reconveyance was vacated and the matter remanded.

In plain language

This was the second time these divorced parties, Robert and Patricia Johnson, brought their dispute to the Nevada Supreme Court. Robert had fallen far behind on his alimony and child-support payments. In a May 1976 order dealing mainly with those arrearages, the district court also set aside - undid - Robert's transfer of his Las Vegas residence to his current wife, Renee, effectively ordering the house returned so it could be reached to satisfy the debt. Robert appealed, arguing the order could not stand because Renee, the person who received the house, was an 'indispensable party' who had to be included in the lawsuit before a court could take the property back from her, and she never was. The Nevada Supreme Court agreed and reversed. The court first knocked down Patricia's procedural objections. It held that the failure to join an indispensable party can be raised by the appellate court on its own, and also by a party (like Robert) who might otherwise face inconsistent or double liability; and that this objection is not waived just because it was not raised at trial. It also rejected Patricia's argument that, because the transcript of the final day of the hearing was missing, the court had to assume the trial judge acted properly. That assumption is not automatic; here the existing record - the pleadings, Patricia's own motion admitting Renee was the transferee, the first two days of testimony, and the trial court's own order - was enough to show Renee received the house and was never made a party. On the merits, the court held that a person who received a conveyance is an indispensable party in an action to set that conveyance aside; ordering the property reconveyed without her would take property from one person and give it to another without a hearing, and would let her force the whole issue to be relitigated. Because Renee was indispensable and was never joined, the order setting aside the conveyance was vacated and the matter sent back.