RUSH VS. RUSH (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Thompson, J. Following Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962), the court held that where both the settlement agreement and the divorce decree expressly direct that the support agreement survive the divorce, the parties' rights flow from the agreement rather than the decree, and a motion to modify the decree (as distinguished from an action on the agreement) is precluded. A purported reservation of jurisdiction as to alimony is ineffectual in these circumstances, because jurisdiction cannot be reserved over a subject as to which the divorce court has divested itself of jurisdiction by directing survival. The order below modifying the decree was therefore error. The court declined to reach the argued question of the validity of an agreement provision requiring the wife to pay alimony to the husband. Cf. Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964).

In plain language

When the Rushes divorced, their decree approved a written agreement that provided for the husband's future support, and both the agreement and the decree said the agreement would survive the divorce. The decree also purported to reserve the court's power to deal with alimony later. Years afterward, the former wife went back to court and asked the judge to modify the decree. The trial court agreed to hear the request and granted her relief. The Nevada Supreme Court reversed. It explained that when both the agreement and the decree direct that the agreement survive the divorce, the parties' support rights come from the agreement itself, not from the decree. So the proper path is a lawsuit on the agreement, not a motion to modify the decree. The court also held that the decree's reservation of power over alimony did not help, because a court cannot reserve authority over something it has already given up by directing that the agreement survive. The order modifying the decree was set aside.