MCCARROLL VS. MCCARROLL (RETIREMENT DIVISION)

96 Nev. 455, 611 P.2d 205 (1980) · 10924 · Nevada (SCOTN/COA) · May 22, 1980

Posture Appeal to the Supreme Court of Nevada from a district court summary judgment for the former husband. The former wife had brought an independent action, nearly three years after the final divorce decree, seeking to have the husband's federal retirement pension declared a community asset and partially awarded to her, alleging fraudulent concealment of the pension during the divorce.

Key holdings

- Only extrinsic fraud - fraud that prevents a party from fairly presenting a claim or defense - supports reopening a judgment; intrinsic fraud does not. - Where a former spouse had a fair opportunity in the divorce proceeding to litigate a claim to an asset (here, a retirement pension), any concealment is intrinsic fraud. - A post-decree action premised only on intrinsic fraud is barred by NRCP 60(b), and summary judgment against it is proper.

Practitioner summary

The Court (per curiam) affirmed summary judgment for the former husband in an action, filed almost three years after a final divorce decree, seeking to have his U.S. Forest Service retirement pension declared a community asset and partially awarded to the former wife. The oral community-property division approved in the divorce did not include the pension, and the pension was not mentioned during the divorce action; the former wife alleged fraudulent concealment. The district court found that the fraud, if any, was intrinsic because the former wife had a fair opportunity to present, in the divorce court, the claim she was now making. Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 (1962). Consequently, relief was barred by NRCP 60(b), and summary judgment for the former husband was appropriate. The Court perceived no error and affirmed.

In plain language

About three years after the McCarrolls' divorce became final, the former wife filed a new lawsuit. Their divorce had approved an oral agreement dividing the community property, but that agreement said nothing about the former husband's U.S. Forest Service retirement pension, and the pension was never mentioned during the divorce. The former wife now claimed the husband had fraudulently hidden the pension, and she asked the court to declare it a community asset and give her a share. The trial court granted summary judgment for the former husband, and the Nevada Supreme Court affirmed. The key point was the difference between two kinds of fraud. 'Extrinsic' fraud - the kind that prevents a person from fairly presenting their case - can justify reopening an old judgment. 'Intrinsic' fraud cannot. Here, the court found that any fraud was only intrinsic, because the former wife had a fair opportunity during the divorce to raise the very claim about the pension that she was now trying to make. Because of that, the court rule that limits reopening old judgments barred her lawsuit, and the summary judgment for the husband was upheld.

This summary is independently verified against the source opinion. It is an informational research aid, not legal advice, and no substitute for reading the decision.