KISHNER VS. KISHNER (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The court (Smart, D.J.) resolved whether NRS 125.150(4) - providing that upon the death of either party or the wife's remarriage all alimony awarded by the decree ceases unless the court has otherwise ordered - terminates an award of lump sum alimony (alimony in gross) payable in installments. The court held it does not. Because Nevada statutes do not expressly authorize lump sum alimony, the authority derives from NRS 125.150(3), and such awards have been approved. Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972). The nature and purpose of lump sum alimony, whether payable immediately or in installments, is to fix the parties' rights and obligations finally, creating a vested right; adopting the reasoning of Ziegenbein v. Damme, 292 N.W. 921 (Neb. 1940), the court held that absent an express provision for defeasance in the decree, such an award is a definite and final adjustment capable of present vesting. Application of NRS 125.150(4) would undermine that purpose, and no clear legislative mandate required it, particularly since NRS 125.150(4) refers to awards under subsection (1) and not to orders under subsection (3). The court expressly held that lump sum alimony, whether payable immediately or in installments, is not subject to termination under NRS 125.150(4). The court noted the 1975 amendments to NRS 125.150 were inapplicable to this pre-amendment decree and expressed no opinion on modifiability. On the procedural issue, a district court has inherent power to construe its judgments to remove ambiguity, Grenz v. Grenz, 78 Nev. 394, 374 P.2d 891 (1962), but that power does not extend to unambiguous decrees, Adams v. Adams, 85 Nev. 50, 450 P.2d 146 (1969). Because NRS 125.150(4) was inapplicable, the decree was not ambiguous and required no clarification. The clarification order was vacated and the original decree affirmed.

In plain language

When Irwin and Ellen Kishner divorced in 1974, the decree ordered Irwin to pay Ellen 'lump sum alimony' of $86,100.64 spread over eleven years in monthly installments (large payments for the first two years, smaller ones for the next eight, and a final $100 payment in 1985). Neither party appealed that decree. A few months later, Ellen remarried and asked the court to clarify what her remarriage did to Irwin's obligation. There is a Nevada statute (NRS 125.150(4)) saying that when the recipient spouse remarries, all alimony awarded by the decree ceases unless the court has 'otherwise ordered.' The district court decided the alimony provision was ambiguous and ruled that the payments were meant to continue regardless of remarriage. Irwin appealed, arguing that the provision was actually clear, so the court had no power to 'clarify' it, and that the remarriage statute automatically ended his obligation. The Nevada Supreme Court addressed the statute first and held that NRS 125.150(4) does not apply to lump sum alimony (also called alimony in gross). The whole purpose of a lump sum award, whether paid all at once or in installments, is to fix the parties' rights and obligations finally and completely - it creates a vested right. Applying the remarriage-termination rule to such an award would undermine that purpose, and nothing in the statute clearly required that result. So Irwin's obligation was not terminated by Ellen's remarriage. Having decided that, the court turned to the procedural point. A court has inherent power to construe its own judgments to remove ambiguity, but not to rewrite unambiguous ones. Because the remarriage statute simply did not apply to this lump sum award, the decree was in fact not ambiguous and needed no clarification. The court therefore vacated the district court's clarification order but affirmed the original divorce decree - meaning Irwin still owed the full lump sum.