LAM VS. LAM (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The controlling question was whether the husband's appearance to address child custody and support, made almost two years after the default decree (beyond NRCP 60(b) and (c)'s six-month period), also supported a division of property that had not been litigated in the original action. The court held that a divorce decree cannot be modified, vacated, or set aside except on the terms set by rule or statute, but that NRS 125.140(2) allows reopening a decree on matters relating to the children of a marriage at any time, their welfare being a primary duty of the court. Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927). The court having had original jurisdiction over the children, the redetermination of matters affecting their welfare was timely and appropriate, and the father's personal appearance (indeed, his initiation of the modification) made the custody and support order more binding and enforceable. The property division could not stand. Neither the defendant nor the property was before the court at the original trial, so no property division could then be made. Because the property issue was not adjudicated at trial, it could not be the subject of a later modification proceeding without an express stipulation, which the court identified as the net effect of NRS 125.150(5). See Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960); Finley v. Finley, 65 Nev. 113, 118, 189 P.2d 334 (1948) (overruled on another point by Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964)). Because there was no stipulation, the husband's appearance was limited to matters concerning the welfare of the children. The court also rejected the contention that the proceeding was in reality a separate action as to property, finding none of the characteristics of a separate action present.

In plain language

Neng Yee Lam filed for divorce in Nevada in 1967 from her husband Kai Sing Lam, with whom she had three children. Her husband was served outside Nevada and by publication and never answered, so she got a default divorce. Because the court had no personal jurisdiction over the husband and no property was located in Nevada, the decree awarded her custody of the children but made no provision for child support or division of property. Almost two years later, the husband asked the court to change the decree to set visitation rights and he volunteered to make some child support payments. The wife then asked the court to divide the couple's property. After a hearing, the trial court ordered the husband to deposit funds from a Canadian bank account into a trust for child support and to split the rest of the Canadian account equally with the wife. The husband appealed the property-division part, arguing the court lacked power to divide property in a modification proceeding. The Nevada Supreme Court affirmed the child support order but reversed and dismissed the property division. It explained that matters concerning the children of a marriage can be reopened at any time under the child-welfare statute, so those issues were not barred by the six-month time limit that normally applies to reopening judgments, and the husband's own participation made the custody and support order all the more binding. But the property was different: because property division had never been litigated in the original divorce (the husband and the property were not before the court then), it could not be resolved later in a modification proceeding without an express stipulation between the parties. There was no such stipulation, so the husband's appearance was limited to matters about the children and could not support a division of property. The court also rejected the argument that this was really a separate property action rather than a modification.