Amie v. Amie, 20384
| Decision Date | 21 August 1990 |
| Docket Number | No. 20384,20384 |
| Parties | Deborah Joyce AMIE, Appellant, v. Frederick AMIE, Respondent. |
| Court | Nevada Supreme Court |
After his divorce from Deborah, Frederick Amie recovered a judgment for wrongful termination by a former employer. The judgment included recovery of wages earned during the marriage, general tort damages and punitive damages. Since the wages are clearly community property, we hold that under First Nat'l Bank v. Wolff, 66 Nev. 51, 202 P.2d 878 (1949), Deborah is entitled to recover in an independent equitable action one-half of the wages recovered by Frederick. Because the question as to whether the general tort damages and punitive damages awards constituted unresolved community property interests was not litigated in the trial court nor briefed in this appeal, we decline to rule on this issue. 1
The key factor in this litigation is the fact that one item of community property, some $46,945.00 earned in wages by Frederick during the marriage, was not disposed of by the divorce decree. For reasons that are not entirely clear from the record the parties did not include the mentioned community property in the written property settlement agreement presented to the court during the divorce proceedings. As Frederick puts it in his brief, the property "was simply omitted from the consideration of the parties in the decree." Since the parties omitted to include this property in their written agreement and hence in the divorce suit itself, the property never came within the field of the prior divorce litigation. This case is distinguishable from McCarroll v. McCarroll, 96 Nev. 455, 611 P.2d 205 (1980), relied on by Frederick, because the later action filed in that case was based on charges that the husband had fraudulently concealed his entitlement to prison benefits. In McCarroll, the trial court found, and we agreed, that the wife had a fair opportunity during the divorce litigation to litigate the fraud allegations. Under such circumstances, the fraud issue could not be later litigated in another civil action. Unlike McCarroll, this case involves property omitted from the divorce controversy. There was no dispute as to the nature of the property, and neither party claimed exclusive entitlement to this property.
In First Nat'l Bank v. Wolff, 66 Nev. 51, 202 P.2d 878 (1949), community property was similarly omitted from consideration by the parties. The court in Wolff stated that where property is not mentioned in the findings or the decree, such a decree in no way prejudices the parties' rights to bring a separate independent action to partition previously undivided property. After the divorce, the parties to the divorce suit become tenants in common in the omitted property. Id. at 56, 202 P.2d at 881; accord Molvik v. Molvik, 31 Wash.App. 133, 639 P.2d 238 (1982); Henn v. Henn, 26 Cal.3d 323, 161 Cal.Rptr. 502, 605 P.2d 10 (1980).
The right to bring an independent action for equitable relief is not...
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