TERRIBLE VS. TERRIBLE (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The court declined to decide whether the respondent had a sufficient interest to seek partition under NRS 39.010, resolving the appeal instead on waiver and estoppel. By his unilateral concession memorialized in the divorce court's findings - that until a sale was agreed upon the appellant could reside on the parcel, manage the properties, retain the income, and pay the costs of use and occupancy - the respondent waived any right to partition to which he might otherwise have been entitled. He was also estopped from repudiating and partially invalidating the May 6, 1971 divorce decree, from which no appeal had been taken. Distinguishing Wolford v. Wolford, 65 Nev. 710, 200 P.2d 988 (1948) (partition mandatory where the decree merely designated a tenancy in common with no restrictions or obligations attached), the court held that the right to partition, though generally a matter of right, may be waived by agreement or defeated by directives in a prior unappealed judgment. Because the right to possession and enjoyment of the parcel had been litigated and adjudicated in the divorce, it could not be relitigated in a partition action between the same parties; the divorce decree barred the partition suit even though partition had not been sought in the divorce (Miller v. Miller, 54 Nev. 44, 3 P.2d 1069 (1931)). The court also invoked the rule that a party cannot accept part of an instrument and defeat other parts (Alexander v. Winters, 23 Nev. 475, 49 P. 116 (1897)) and the doctrine of equitable estoppel. Reversed and remanded with instructions to enter judgment for the appellant.

In plain language

A 1971 divorce decree divided the couple's property. For one parcel, the divorce judge ended the joint tenancy and made the two of them tenants in common, each owning half. Importantly, during the divorce the husband had agreed that, until the parties agreed on a sale, the wife could live in the home on the parcel, manage the rental properties there, keep the income, and pay the expenses. Later the husband received a $150,000 offer for the whole parcel; the wife refused to sell, and he sued to force a sale by 'partition' (a court-ordered division or sale of co-owned property). A different judge found partition of the parcel impractical, ordered it sold, and directed that the proceeds be split equally. The wife appealed. The Nevada Supreme Court reversed. It explained that although co-owners generally have a right to partition, that right is not absolute. The husband had waived it by his own concession in the divorce - letting the wife live in and manage the property and keep the income until a sale was agreed upon - and he was estopped from undoing part of a divorce decree he had never appealed. Because the right to possess and use this property had already been litigated and decided in the divorce, the divorce decree barred the later partition suit between the same parties. The Court sent the case back with instructions to enter judgment for the wife.