SCHMUTZER VS. SCHMUTZER (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

By the Court, McNamee, C.J. On the wife's appeal from an order modifying a 1955 divorce decree, the court reversed in part and affirmed in part. Except as to child custody and support, the decree became final six months after entry (NRCP 60(b); Schneider v. District Court, 64 Nev. 26, 176 P.2d 797 (1947)), so the district court lacked jurisdiction to modify the property provision relieving the husband of his obligation to pay the $4,800 balance owing on the dwelling awarded to the wife as her sole and separate property; conjecture about the original judge's motive could not convert that unconditional property award into modifiable child support. That portion of the modification order was ordered stricken. As to child support, NRS 125.140 empowers the district court to modify support during the children's minority whether or not jurisdiction was expressly retained, and the reduction was a discretionary matter (Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951)); on the incomplete record, with no stenographic report and the husband's showing of decreased income and increased burdens, no abuse of discretion appeared. The order was affirmed in that respect, and no costs were allowed.

In plain language

When this couple divorced in 1955, the decree gave the wife custody of the two children, ordered the husband to pay $300 a month in child support, and divided their property. It also awarded the family home to the wife as her sole and separate property, with the condition that the husband pay off the remaining balance owed on the house. The court kept jurisdiction only over custody and child support. In 1958 the husband asked the court to modify the decree because his circumstances had changed. In 1959 the court reduced child support to $85 per month per child and relieved the husband of paying the roughly $4,800 balance still owed on the house. The evidence showed the wife had remarried and sold the house, the husband's earnings had dropped, he was helping support his aged mother, and he had fallen behind on the house payments. The wife appealed, and the Nevada Supreme Court reversed in part. Except for custody and child support, a divorce decree becomes final six months after it is entered, so by the time of the modification the court no longer had power to change the property parts of the decree. The requirement that the husband pay off the $4,800 was part of the property division (the house was awarded to the wife outright, with no condition that she live in it or not sell it), so it could not be treated as modifiable child support - even though the modifying judge speculated the original judge may have intended the home to house the wife and children. That part of the order was ordered stricken. However, the court affirmed the reduction in child support. Nevada law lets courts adjust child support during a child's minority whether or not the court kept jurisdiction, and this is a matter of discretion. Because there was no trial transcript and the husband had shown his income dropped from about $16,000 to $11,000 net, the court could not say the reduction was an abuse of discretion.