KATLEMAN VS. KATLEMAN (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

The court considered respondent husband's motion to dismiss the wife's appeal from an order denying her motion for allowances and alimony pendente lite under NRS 125.040, on the ground that the order was not appealable under Rule 72(b) NRCP. The nonappealability of orders concerning alimony and allowances pendente lite is well established in Nevada. Engebretson v. Engebretson, 73 Nev. 19, 307 P.2d 115 (1957); Harrison v. Harrison, 54 Nev. 369, 17 P.2d 693 (1932); Kapp v. Kapp, 31 Nev. 70, 99 P. 1077 (1909); accord Wilkinson v. Wilkinson, 73 Nev. 143, 311 P.2d 735 (1957). Appellant argued that the prior cases all involved orders granting allowances, and that protection of the destitute wife required allowing an appeal from a denial. The court held the rule against appealability rests on the order's lack of finality as to the existence or extent of the wife's right to allowances; the order is no more final when it opposes the wife's position than when it favors it. Any remedy allowing such appeals lies in amendment of Rule 72(b) NRCP, not in judicial exception. The motion to dismiss was granted.

In plain language

In a divorce action, the wife asked the trial court for temporary allowances and alimony while the case was pending (called alimony 'pendente lite'). The trial court denied her request, and she tried to appeal that denial. The husband moved to dismiss her appeal, arguing that an order denying temporary allowances is not the kind of order Nevada law lets a party appeal. The Nevada Supreme Court agreed with the husband and dismissed the appeal. It explained that Nevada has long treated orders about temporary allowances as not final and therefore not appealable. The wife argued that the earlier cases all involved orders granting allowances, while hers was a denial, and that a destitute wife needs to be able to appeal a denial to be protected during the litigation. The court rejected the distinction: the rule against appealing these orders rests on the fact that they are not a final determination of the wife's right to allowances, and an order is no more final when it denies allowances than when it grants them. If appeals from such orders are to be allowed, the court said, the fix must come from amending the rule, not from the courts.