JONES VS. JONES (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

This was a post-divorce contract action to enforce a New York separation agreement that, by its terms, survived and was not merged into any divorce decree and was to be construed under New York law. The court first held the district court exceeded its jurisdiction by modifying the agreement. New York law does not permit modification of a nonmerged separation agreement enforced as a private contract absent impeachment or cancellation as allowed by law. Carlson v. Carlson, 53 N.Y.S.2d 735 (S.Ct.App.Div. 1945); Weintraub v. Weintraub, 96 N.E.2d 724, 728 (N.Y. 1951); Goldman v. Goldman, 26 N.E.2d 265 (N.Y. 1940) (distinguishing modification of a decree from modification of a surviving contract); accord McMains v. McMains, 206 N.E.2d 185 (N.Y. 1965). Massachusetts follows the same rule. Schillander v. Schillander, 29 N.E.2d 686 (Mass. 1940). Nevada is in accord: although a spousal agreement does not bind the court in the original divorce, in a post-divorce action on a nonmerged support agreement the agreement controls the award and the court lacks jurisdiction to modify it or grant different relief. Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962); see Rush v. Rush, 82 Nev. 59, 410 P.2d 757 (1966). Second, because this was an action for damages for breach of contract, NRS 99.040(1) required interest on each sum from the time it became due; the installments were payable monthly and Edith was deprived of their use as each fell due. Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968); Close v. Isbell Constr. Co., 86 Nev. 524, 471 P.2d 257 (1970). Third, costs were mandatory, not discretionary, because NRS 18.020(3) requires allowance of costs to a plaintiff recovering over $300 in an action for money or damages. Randono v. Turk, 86 Nev. 123, 466 P.2d 218 (1970). Fourth, entitlement to an attorney's fee turned on NRS 18.010(3)(a) (contract action), not NRS 125.180(1); the $7,050 recovery would have supported a discretionary fee, but the judge gave no reasons for denying one, precluding review, and should have stated his reasons. On retrial, prejudgment interest added to the installments determines whether the recovery exceeds $10,000, prejudgment interest being 'damages for delay in payment of a contractual obligation.' Triangle Elec. Supply Co. v. Mojave Elec. Co., 238 F. Supp. 815, 818 (W.D. Mo. 1965).

In plain language

Edith and Graham Jones married in Massachusetts in 1934 and had three children. In 1963, while living in New York, they signed a separation agreement under which Graham agreed to pay Edith $225 per month for her own support (until she remarried) and $87.50 per month for each of two minor children. The agreement said that even if it was later written into a divorce decree, it would not merge into that decree but would survive as a private contract binding for all time, to be interpreted under New York law. Graham then moved to Nevada, got a quick default divorce (Edith was never personally served and the agreement was never brought into that case), and remarried. Years later he stopped making the full payments. In 1968, Edith sued him in Nevada for breaking the contract, seeking the unpaid alimony and child support. After trial, the Nevada judge awarded Edith the arrears but also cut the future monthly payments called for by the agreement, gave her interest only from the date of judgment, awarded no costs, and awarded no attorney's fee. Edith appealed. The Nevada Supreme Court reversed and sent the case back for a new trial. It ruled that the trial court had no power to rewrite (reduce) the payments set by the surviving separation agreement, because under New York, Massachusetts, and Nevada law a court cannot modify a private support contract that is not merged into a divorce decree. It also held that interest should run on each unpaid installment from the date that installment became due, not just from the judgment; that Edith, as the winning party recovering more than $300 in a contract action for money, was entitled to costs as a matter of right; and that the judge should have explained why he denied any attorney's fee so the decision could be reviewed. The court added that whether Edith could get a fee at all depended on whether her total recovery (including interest treated as damages) exceeded $10,000 under the fee statute.