KAPP VS. KAPP (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Motion by the respondent (plaintiff in a pending Esmeralda County action for dissolution of the bonds of matrimony) to dismiss the defendant's appeal from an order increasing alimony pendente lite from $100 to $200 per month. Norcross, C.J., held the order nonappealable: appeal is purely statutory, and sec. 330 of the civil practice act (Comp. Laws 3425), enumerating appealable judgments and orders (final judgments; judgments on appeal from inferior courts; orders granting or refusing new trial, injunction and attachment orders, and special orders after final judgment; interlocutory partition decrees), does not embrace an order for alimony pendente lite. Lake v. King, 16 Nev. 215, had squarely so determined, and settled practice will not be unsettled 'except for very weighty and conclusive reasons' (Evans v. Cook, 11 Nev. 75); an attempted appeal from a nonappealable order is void and confers no jurisdiction (State v. Langan, 29 Nev. 459). The court declined to adopt Sharon v. Sharon, 67 Cal. 185 (treating an alimony order as an appealable final judgment), noting In re Kelsey, 12 Utah 393, and Wyatt v. Wyatt, 2 Idaho 236, which approved Justice McKee's dissent in Sharon. Appeal dismissed.

In plain language

While a divorce case was pending in the district court in Esmeralda County, the court raised the temporary alimony (alimony pendente lite - support paid while the case is ongoing) from $100 per month to $200 per month. The defendant appealed that order, and the plaintiff moved to throw the appeal out on the ground that no appeal is allowed from such an order. The Nevada Supreme Court dismissed the appeal. The right to appeal exists only where a statute grants it, and Nevada's civil practice act, which lists the judgments and orders that can be appealed, does not include orders for temporary alimony. The court had already so held in Lake v. King, and it declined to follow the California case of Sharon v. Sharon, which treated an alimony order as an appealable final judgment. Only a clear abuse of discretion by the trial court could call for relief, by other means; the appeal itself was void and gave the Supreme Court no jurisdiction.