LINDSAY VS. LINDSAY (CHILD SUPPORT)

Key holdings

Practitioner summary

Appeal by the plaintiff ex-wife from an April 18, 1927 order of the district court purporting to construe the support provisions of a March 22, 1924 divorce decree on the ex-husband's motion filed February 2, 1927. Ducker, C.J. The decree required the husband to pay $1,200 per year in equal monthly installments for the full and entire support of each minor child, 'excepting therefrom the cost of his education,' with divided custody. The trial court's order construed the decree to require the wife to pay the husband, out of the $100 monthly per child, the cost of support while the children were in his custody. Held: a court has inherent power, independent of statute, to remove ambiguity or correct clerical or formal errors in a judgment at any time (Gagnon v. United States, 193 U.S. 451; Sparrow v. Strong, 2 Nev. 362; Ex parte Breckenridge, 34 Nev. 275; 1 Freeman on Judgments (5th ed.) sec. 193 discussed elsewhere), and district court rule 45's six-month limit does not bar such corrections; but the decree was not ambiguous - it required $100 per month per child (the boy until self-supporting, the girl until marriage) with only education costs deductible - and the order altered the decree in a substantial way by reducing the required payments. Because notice of the motion was given more than six months after rendition of the decree, the change violated the plain prohibition of rule 45 and was unauthorized. Education and support are unrelated subjects, and a support offset for custodial periods cannot be read into the decree under the guise of construction. Reversed with direction to enter an order denying the husband's motion.

In plain language

A 1924 divorce decree required the ex-husband to pay the ex-wife $1,200 per year ($100 per month) for the support of each of their two children - for the son until he became self-supporting, and for the daughter until she married - with the cost of the children's education excepted. Custody was split: the mother had the children during the school year and the father had them during summer and parts of other vacations. Nearly three years later, in 1927, the father asked the trial court to 'construe' the decree so he could deduct education expenses and the amounts he spent supporting the children while they were in his custody. The trial court obliged, ruling in effect that the mother had to pay the father out of her $100 per month for the periods the children lived with him. The Nevada Supreme Court reversed. Courts always have inherent power to fix clerical errors or clear up genuine ambiguity in a judgment, but this decree was not ambiguous: it plainly required $100 per month per child to the mother, with only education costs deductible. The trial court's 'construction' actually changed the decree's substance by reducing the father's payments, and under district court rule 45 no substantial change could be made more than six months after the decree was entered. The order was reversed and the trial court was directed to deny the father's motion.