PLEGER VS. PLEGER (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Per Curiam. On the husband's appeal from denial of his motion to modify the alimony provision of a divorce decree, the court affirmed. The husband moved under NRS 125.170(1), over which the trial court had expressly retained jurisdiction, but grounded his motion on extrinsic fraud - the respondent's alleged failure to disclose her separate property holdings before he agreed to $125 monthly alimony. The court held the extrinsic-fraud theory is incompatible with the NRS 125.170(1) remedy: while a divorce decree may be annulled in an independent proceeding for extrinsic fraud (Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 (1962)), a motion under NRS 125.170(1) permits modification only upon a proper showing of changed circumstances and does not permit entry of a different decree (Dechert v. Dechert, 46 Nev. 140, 205 P. 593 (1922)). Because the motion, based on extrinsic fraud, would require a different decree, denial was not error. The court added that even had the husband pursued the proper procedure (an attack for extrinsic fraud), and assuming without deciding that nondisclosure of assets could constitute extrinsic fraud, the record amply supported a finding that he had sufficient knowledge of the respondent's separate property before agreeing to the alimony payments, vitiating the fraud allegation. Affirmed.

In plain language

After his divorce, the husband asked the court to change the alimony he had agreed to pay ($125 a month), claiming his ex-wife had committed 'extrinsic fraud' by failing to disclose her own separate property before he agreed to the amount. He brought this request as a motion to modify under a Nevada statute (NRS 125.170(1)). The trial court denied it, and he appealed. The Nevada Supreme Court affirmed. It explained there was a mismatch between the type of relief he wanted and the tool he used. A motion to modify under NRS 125.170(1) lets a court change future alimony when there is a proper showing of changed circumstances, but it does not allow the court to enter a completely different decree. A claim of extrinsic fraud, by contrast, is the kind of attack that must be brought in a separate, independent lawsuit to annul the decree. Because his fraud theory would require a different decree, the motion to modify was the wrong vehicle, and the trial court properly denied it. The court added that even if he had used the right procedure, and even assuming that failing to disclose assets could count as extrinsic fraud, the record strongly showed he already knew enough about his ex-wife's separate property before agreeing to the alimony, which defeated the fraud claim anyway.