WHITMAN VS. WHITMAN (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

On rehearing, the court held that appellant had timely submitted a notice of appeal to the district court clerk, who improperly stamped it "received" and returned it for lack of a filing fee and a signed in forma pauperis affidavit rather than retaining it in the record. A notice of appeal is effective on the date of receipt by the district court clerk. Huebner v. State, 107 Nev. 328, 330, 810 P.2d 1209, 1211 (1991). The clerk must keep an accurate record of the date of receipt of every document submitted regardless of whether it is in the appropriate form; although the clerk had no duty to file the notice before payment of the fee or entry of an order permitting appeal in forma pauperis (NRS 19.013(2)), the clerk had a duty to receive and retain the document and to inform the appellant of any perceived deficiency. The court granted rehearing and reached the merits. Because appellant did not appeal the decree of divorce awarding the real property to respondent, that award was final and could not be challenged; his sole cognizable challenge was to the order divesting him of title. Having no interest in the property as a matter of law, appellant could not demonstrate that any alleged irregularity in the divesting proceeding prejudiced him. Concluding that briefing and oral argument were unwarranted (Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975)), the court dismissed the appeal.

In plain language

A Nevada decree of divorce awarded certain real property to the wife. The husband, now an inmate at the Nevada State Prison representing himself, refused to sign a quitclaim deed to that property, so the court entered an order divesting him of any interest in it. He tried to appeal. At first the Supreme Court dismissed the appeal as untimely, but on rehearing the husband showed he had actually mailed a timely notice of appeal. The district court clerk had stamped it "received" and returned it to him because it lacked a filing fee and a signed affidavit for the request to proceed without paying fees, rather than keeping it in the record. The court held that a notice of appeal is effective when the clerk receives it, that the clerk had no authority to return it, and that returning the document was improper. The clerk must keep an accurate record of the date every document is received, regardless of its form, and should have notified the party of any deficiency. The court granted rehearing and reached the merits. On the merits, the husband had never appealed the divorce decree itself, so the decree, including the award of the property to the wife, was final and could not be challenged now. Because he had no interest in the property as a matter of law, he could not show that any claimed irregularity in the divesting proceeding prejudiced him. Concluding that briefing and argument were unwarranted, the court dismissed the appeal.