RUSH VS. RUSH (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Collins, C.J. On the wife's appeal from a judgment enforcing a surviving property/support agreement, the court affirmed a $37,000 judgment for the husband. The court expressly declined to decide whether a court could award alimony to a husband against a wife as part of a divorce decree absent a showing the husband was infirm, disabled or incompetent under NRS 123.110, because that question was not presented. It held instead that where a wife agrees by contract to pay the husband alimony, the enforceability of the contract turns on the statutes governing interspousal agreements. NRS 123.080 permits spouses to agree to an immediate separation and make provision for the support of either of them, provides that mutual consent is sufficient consideration, and provides that a divorce-related agreement's validity is not affected by a clause conditioning it on a divorce being granted. NRS 123.070 permits interspousal contracts respecting property, subject to the rules governing persons in a relationship of confidence and trust. The court held that where spouses contract for the payment of alimony from wife to husband, so long as no advantage is taken of the confidential relationship, no Nevada public policy is violated; the record showed an arm's-length resolution with both parties represented by counsel, and the promises were supported by adequate consideration. Finally, the court held the divorce records were properly admitted, because evidence extrinsic to a written contract is admissible to determine the circumstances under which the parties contracted and the contract's purpose.

In plain language

Before their 1963 divorce, the Rushes signed an agreement dividing their property and providing that the wife would pay the husband $1,000 per month in 'alimony' from 1963 to 1973. There were no children. The wife got the divorce the same day, and the decree said the agreement would survive it. She paid until August 1964, then stopped. The husband sued to enforce the agreement. The wife argued the deal was unenforceable because it was against Nevada public policy (a wife paying alimony to a husband) and because there was no consideration (nothing given in exchange). The trial court disagreed and awarded the husband $37,000 in unpaid installments plus interest. The Nevada Supreme Court affirmed. It did not decide whether a court could order a wife to pay a husband alimony as part of a divorce decree; that question was not before it. But it held that when spouses freely agree by contract that a wife will pay the husband support, and no one takes unfair advantage of the trust between them, the contract violates no public policy. Nevada statutes let spouses contract about property and support, and mutual consent supplies the consideration. Here both sides were represented by lawyers and bargained at arm's length, so the agreement was valid and enforceable. The court also held the trial judge properly admitted the divorce records to show the circumstances and purpose of the contract.