Lemkuil v. Lemkuil

• Court: Nevada Supreme Court
• Writing for the Court: MOWBRAY; GUNDERSON; However, so far as I can see; BATJER
• Citation: Lemkuil v. Lemkuil, 92 Nev. 423, 551 P.2d 427 (Nev. 1976)
• Decision Date: 30 June 1976
• Docket Number: 8037,Nos. 7931,s. 7931
• Parties: Mildred A. LEMKUIL, Appellant, v. Norman H. LEMKUIL, Respondent.

Page 427

551 P.2d 427

92 Nev. 423

Mildred A. LEMKUIL, Appellant, v. Norman H. LEMKUIL, Respondent.

Nos. 7931, 8037.

Supreme Court of Nevada.

June 30, 1976.

Charles M. Murphy, Reno, for appellant.

Hawkins, Rhodes, Sharp & Barbagelata, Reno, for respondent.

OPINION

MOWBRAY, Justice.

This is a consolidated appeal arising from two actions filed in the Second Judicial District Court that relate to a divorce and a property settlement agreement between the appellant, Mildred A. Lemkuil, hereinafter referred to as Mildred, and the respondent, Norman H. Lemkuil, hereinafter referred to as Norman.

Mildred and Norman were married on July 22, 1944, at York, South Carolina. Throughout the marriage, Norman had been employed as an operating engineer in the United States Maritime Service, earning about $10,000 per year.

In 1966, because of increased marital difficulties, the parties separated. On November 18 of that year, they agreed on a property settlement that provided for a division of the property and for the support of Mildred and the minor daughter of the parties. The agreement provided for the monthly payment by Norman of the sum of $400 for child support and alimony, with said sum to be reduced by $100 per month upon the death, majority, or emancipation of the child, who was then 6 years of age.

Norman continued payments called for by the agreement until September 15, 1971. At that time, he terminated his employment with the Merchant Marine and moved his residence to Nevada. On November 18, 1971, he initiated the instant divorce proceedings, Case No. 7931, in the district court. Mildred answered and counterclaimed, seeking enforcement of the aforementioned agreement. On March 7, 1972, the district judge entered an order in the divorce action, directing the payment of a pendente lite allowance wherein the support payments to Mildred and the child were reduced to $200 per month.

On October 27, 1972, Mildred filed a separate, independent action in another department of the Second Judicial District Court, seeking arrearages under the agreement of November 18, 1966. That complaint was heard on September 20, 1973, before Judge William Forman, who dismissed the action on the ground that the divorce court in another department of the Second Judicial District had exclusive jurisdiction over the subject matter of the second suit.

The divorce trial was heard before Judge Grant Bowen on July 19, 1974. Both Norman and Mildred testified. The divorce court found that the agreement should not be set aside for fraud, duress, or undue influence, as urged by Norman. The divorce court adopted the provisions of the agreement in toto, except those relating to the support of Mildred and the minor child. ¹ In this connection, the court ordered Norman to pay Mildred $100 per month alimony for 6 months and ordered payment of $100 per month for the support of the minor child. The divorce court did order Norman to pay Mildred all the arrearages accumulated under the agreement prior to the court's pendente lite order of March 7, 1972 (in the sum of $1,200), but the court refused to order Norman to pay such arrearages that accumulated after the pendente lite order. ²

Mildred contends on appeal that it was error for the divorce court to enforce the agreement only as to those arrearages that accrued prior to the entry of the pendente lite support order on March 7, 1972.

Counsel for both sides have agreed that the divorce court in its own discretion, regardless of the prior agreements of the parties, may enter its own order for future support and that the court is not in any way bound by the prior agreement of the parties. Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131 (1931). The precise issue on this appeal, however, is whether the court has any discretionary power to refuse enforcement of installments of support already accrued under an agreement that the court concludes at trial was validly entered into by the parties when they executed it. We believe that in such instances the court is without discretion to, in effect, modify those arrearages for support that have accrued to the time the court makes its own support order when the divorce decree is entered. Therefore, we must reverse and remand the divorce case, No. 8037, with instructions to the court below to enter an appropriate order awarding Mildred a judgment for all arrearages accrued under the agreement to the date of the divorce decree.

Mildred's collateral...