SMITH VS. SMITH (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Per Curiam. On the husband's appeal from post-judgment orders denying return of monies paid, holding him in contempt, and requiring him to execute a promissory note and deed of trust and to pay attorney's fees, the court affirmed. On jurisdiction, the husband relied on Gojack v. District Court, 95 Nev. 443, 596 P.2d 237 (1979), which holds a district court lacks jurisdiction to enter a final divorce decree without contemporaneously disposing of the community property; but Gojack recognized an exception where the parties stipulate to a bifurcated trial (cf. Ellett v. Ellett, 94 Nev. 34, 573 P.2d 1179 (1978)). Although the court granted an absolute decree before conducting the property proceedings, two facts placed the case within the exception: the husband requested that the divorce be granted before the property matters were settled and failed to make a proper and timely objection to bifurcation, and the decree referred the property matters to a master, implying a reservation of jurisdiction. Having reserved the property issue, the district court retained jurisdiction to enter orders enforcing the parties' Marital Termination Agreement. On attorney's fees, NRS 125.150(3) permits a reasonable fee to a party to a divorce action where fees are in issue under the pleadings; the wife properly prayed for fees in her order-to-show-cause motion, and 'an action for divorce' includes the bifurcated proceedings relating to the property settlement, so the award was within the court's discretion. The court cautioned that bifurcated divorce proceedings are disfavored and should generally be avoided.

In plain language

Les and Sharon Smith married in 1974; Sharon filed for divorce in 1977 and the trial began in 1980. Partway through trial, with a property settlement nearly done, Les's attorney asked the judge to go ahead and grant the divorce and deal with the property later - a 'bifurcated' (split) approach. Neither side objected. When the settlement still was not finished, the court granted Sharon an absolute divorce and referred the property issues to a master. The parties then signed a Marital Termination Agreement (MTA) requiring Les to pay Sharon $70,000, partly through monthly payments and partly through a promissory note. Les did not sign the note or fully pay, so Sharon sought to have him held in contempt. The court ordered him to sign the note and a deed of trust. Les appealed that order; while the appeal was pending he signed the documents and paid $10,000, but the Supreme Court (treating Sharon's non-response as a confession of error) had the order vacated. Back in the trial court, the judge ruled that the vacated order did not change Les's underlying duty under the MTA, denied his request to get his money back, found him in contempt for not signing a new note and deed of trust, and ordered him to pay $2,500 in attorney's fees. Les appealed again. The Nevada Supreme Court affirmed. Les argued the trial court lost the power to enforce the property settlement once it granted the absolute divorce. While it is generally improper to grant a divorce without simultaneously dividing the community property (the Gojack rule), there is an exception when the parties agree to a bifurcated trial. Two facts placed this case within that exception: Les himself had asked the court to grant the divorce before the property was settled and never properly objected to bifurcation, and the decree referred the property matters to a master, which reserved the court's jurisdiction over them. Having reserved that issue, the court kept the power to enter orders enforcing the MTA. The court also upheld the attorney's fee award, since Nevada law allows fees to a party in a divorce action when fees are put at issue - and 'an action for divorce' includes the bifurcated property proceedings. The court cautioned, however, that bifurcated divorce proceedings are disfavored and should generally be avoided.