Day v. Day

• Decision Date: 09 September 1966
• Docket Number: No. 5048,5048
• Citation: 82 Nev. 317,417 P.2d 914
• Parties: Fairfield Pope DAY, Appellant and Cross-Respondent, v. Frances Statter DAY, Respondent and Cross-Appellant.
• Court: Nevada Supreme Court

Page 914

417 P.2d 914

82 Nev. 317

Fairfield Pope DAY, Appellant and Cross-Respondent, v. Frances Statter DAY, Respondent and Cross-Appellant.

No. 5048.

Supreme Court of Nevada.

Sept. 9, 1966.

John P. Thatcher, Reno, for appellant and cross-respondent.

Leslie B. Gray, Reno, for respondent and cross-appellant.

OPINION

COLLINS, Justice.

The parties were formerly husband and wife. Hereafter, appellant and cross-respondent will be referred to as Fairfield, while respondent and cross-appellant will be referred to as Frances. They were divorced in Reno in 1949. The decree approved an agreement between the parties which this court previously held was merged in the decree. Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964). Frances, by remand of that action, seeks a money judgment against Fairfield for alleged arrearages under the decree. He contended in the trial court, and here, she is entitled, if at all, to a very nominal amount. The lower court awarded Frances judgment against Fairfield totaling $12,535.17, an attorney's fee of $1,500.00 and costs, from which he appeals. It limited interest at the statutory rate on the various sums totaling $12,535.17 to a time commencing January 1, 1960, from which she appeals.

Against amounts admittedly owed, Fairfield contends he is entitled to a credit of $1,972.00 paid directly to a son while attending college and prior to his 21st birthday; a credit of $1,562.20 representing tuition and living expenses paid directly to the son while attending college after reaching 21 years. He also contends there should have been a cessation of liability to make payment to Frances for the daughter after her marriage; that the agreement between him and Frances should be construed as providing for support payments for the children rather than alimony to Frances; and that the trial court erred in awarding Frances as attorney's fee absent a showing of need.

The agreement, merged into the decree, provided payments from Fairfield to Frances to be alimony so that the money would be taxable to her rather than him under the federal income tax law. Both parties admit the agreement had that effect. Frances had paid all taxes on the sums received by her. Frances, in turn, obligated herself to support the children during their minority from such payments, and until they reached 25 years if either or both were enrolled in college. The alimony payments were to continue in accordance with a formula related to Fairfield's income, but to be reduced 50% in the event Frances remarried, which she did in 1956. The payments were also to be reduced 25% as each child reached 21 years unless attending college, in which event they were to continue until each child reached 25 years, graduated or ceased attending school.

The son entered college in 1957 but experienced academic difficulty. Frances, at the urging and with the agreement of Fairfield, for the purpose of bolstering the son's college career, stayed with him at the school through June 1958, when he quit because of scholastic problems. Thereafter Frances refused to continue the son in school. The son, at Fairfield's urging, returned to the same school in 1959, while still under 21, but quit again on April 1, 1960. The son reached 21 on March 21, 1960. He returned again but quit finally in October 1960. Fairfield paid the son directly $1,972.00 for college expenses before he reached 21 and claims the trial court erred in not giving him credit against the amount sought by and awarded to Frances.

In June 1962, while 19, the daughter married. The agreement between Fairfield and Frances did not expressly provide for reduction in the alimony payments in the event one of the children married. There is dispute in the evidence upon the point, but the trial court found Frances continued to make a home for the daughter and contribute to her college expenses even after marriage, and adjudged Fairfield to be liable for the payments due Frances under the agreement notwithstanding the daughter's marriage. Fairfield contends he is entitled to a credit for all sums due after the daughter's wedding.

The agreement also provided Fairfield was to supply Frances each year proof of his income in order that his obligation to her under the payment formula could be determined. He failed to do this from 1950 to 1959, during which period part of the arrearage accrued because he was not paying in accordance with the formula related to his income. Though disputed, the trial court found Frances had demanded these statements and Fairfield had neglected to provide her with them.

It should be clearly noted Frances brought her motion on May 9, 1963, to determine arrearages pursuant to NRS 125.180. ¹ Following an appeal to this court Day v. Day, supra, the trial court entered its findings, conclusions and decree on arrearages October 14, 1965. Prior to that time Fairfield had never brought a motion to modify or reduce the payments found to be due Frances under the agreement merged in the decree.

We hold the judgment of the trial court on Fairfield's appeal should be upheld, but reverse and remand for further proceedings on Frances' cross-appeal.

Payments once accrued for either alimony or support of children become vested rights and cannot thereafter be modified or voided. In Lockwood v. Lockwood, 82 U.S.App.D.C. 105, 160 F.2d 923 (1947), it is stated:

'(W)e have held that a single award for the support of a wife and minor children is alimony payable to the wife and is not contingent on the minority of the children. True, the fact that the children do reach majority may be a ground for revision of the decree upon proper application, but a judgment on such an action looks only to the future and does not act in retrospect. It is well settled in this jurisdiction that the trial court is without power to effect a revision or remittance of past due alimony. The trial court acted correctly in enforcing the full payment of the accrued alimony.'

To a similar effect is Shuff v. Fulte, 344 Ill.App. 157, 100 N.E.2d 502, 506 (1951); Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764, 767 (1952); Distler v. Distler, 309 Ky. 454, 218 S.W.2d 26 (1949). Nevada statute, NRS 125.170 ² also commands such a result, at least as to alimony and support of the wife. Likewise NRS 125.140(2) ³ allows the trial court to 'modify or vacate' an award for care, education, maintenance and support of children, but even that authority implies a prospective rather than retroactive modification or vacation. Here the trial court refused a retroactive modification and we do not disagree. Certainly the trial court is not required to make such a modification.

We feel the same authority cited above governs the payments made by Fairfield directly to his son and for which he now claims credit against arrearages owed to Frances.

As to the attorney's fee awarded Frances pursuant to NRS 125.180(1), ⁴ we feel a different rule applies than in an allowance for suit money provided for in NRS 125.040, ⁵ as recently construed in Allis v. Allis, 81 Nev. 653, 408 P.2d 916. NRS 125.180(1) has for its purpose the entry of a money judgment where arrearages under the divorce decree are accrued and vested, while NRS 125.040 has for its purpose the discretionary award of suit money to the wife by the trial court upon her showing of necessitous circumstances. Allis v. Allis, supra. The trial court in its award did not violate its discretion to the amount awarded under all the circumstances. We find no error.

Frances' cross-appeal from the judgment of the trial court denying her interest on the arrearages found due prior to January 1, 1960, is good and we reverse. The reasoning of the trial court in such action by it is not clear from the record. The court adopted Fairfield's authorities upon this point as its ruling, and held Frances was either estopped from claiming interest on arrearages prior to January 1, 1960, or that she had made an election between two inconsistent rights. Within six months following the granting of the decree of divorce in 1949, Frances filed a motion to modify the decree on the ground that she was misled by Fairfield's attorney. This motion has never been decided and both parties have abandoned any further effort regarding it. This, Fairfield contends, is the election by Frances of a right inconsistent with her motion to determine arrearages and reduce them to judgment. Fairfield cites Rule XLV of the District Court Rules (NCL 1929, Vol. 4, p. 2484 ⁶) and contends a motion under this rule suspended the operation of the judgment and all proceedings under it. Rule XLV has since become NRCP 60(b) ⁷. Rule XLV apparently was never construed by this court. However, the point was clearly settled when NRCP 60(b) was adopted, because it specifically provides, 'A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.' That, we hold, is the construction to be accorded Rule XLV. Therefore, until Frances' motion under Rule XLV was determined, which it never has been, the judgment was final and its operation not suspended. Furthermore, the trial court specifically found Fairfield had a mandatory duty to provide the sworn statements and certificates each year and that Frances had repeatedly requested the statements for the year 1950 to 1959, inclusive. We find there was no basis for the court below to refuse the award of interest on either the doctrine of estoppel or laches.

Therefore we hold Fairfield's appeal is not well taken and we sustain the lower court's judgment in favor of Frances.

On Frances' cross-appeal we reverse the ruling of the lower court and remand the cause for the calculation and award of interest on the arrearage adjudged to be due her.

ZENOFF, District Judge, concurs.

THOMPSON, Justice (concurring).

I agree with some of the views expressed by Mr. Justice Collins, but not all of them. Therefore, I shall state my views separately.

By...