Siragusa v. Siragusa

• Decision Date: 03 December 1992
• Docket Number: No. 22043,22043
• Citation: 108 Nev. 987,843 P.2d 807
• Parties: , Bankr. L. Rep. P 75,035 Vincent SIRAGUSA, Appellant, v. Joanne M. SIRAGUSA, Respondent.
• Court: Nevada Supreme Court

Page 807

843 P.2d 807

108 Nev. 987, Bankr. L. Rep. P 75,035

Vincent SIRAGUSA, Appellant, v. Joanne M. SIRAGUSA, Respondent.

No. 22043.

Supreme Court of Nevada.

Dec. 3, 1992.

Graziadei & Cantor, Las Vegas, for appellant.

Shinehouse & Duesing, Joshua Landish, Las Vegas, for respondent.

OPINION

PER CURIAM.

Upon their divorce in 1983, appellant Vincent Siragusa (Vincent) and respondent Joanne Siragusa (Joanne) entered into a property settlement agreement which provided that Vincent would make alimony payments to Joanne and Vincent would purchase Joanne's community property interest in Vincent's medical practice. After Vincent's property settlement obligations were discharged in bankruptcy, Joanne obtained a judgment for alimony arrearages, to be paid in monthly installments until the judgment was satisfied. On August 1, 1990, Vincent made his final alimony payment, which included the prepayment of a small sum that would have been due in September, 1990. On August 31, 1990, Joanne filed a motion to modify the alimony award, which the district court granted. We conclude that the district court maintained jurisdiction to modify the alimony award and that it properly considered Vincent's discharged property settlement obligation as a "changed circumstance" justifying modification of the alimony award, and therefore we affirm the district court's order.

Facts

Vincent and Joanne were married on June 21, 1968. During the marriage and thereafter, Vincent was a prominent Las Vegas cardiologist and a partner in a number of professional business entities related to his medical practice. Joanne worked intermittently during the marriage as a school teacher. On September 22, 1983, Joanne filed for divorce.

On September 23, 1983, a decree of divorce was entered in the district court which incorporated the parties' property settlement agreement. That agreement provided in pertinent part that Vincent would make alimony payments of $3,000.00 per month for sixty consecutive months, commencing fifteen days from the date of the agreement (August 19, 1983), until either all of the sixty payments were made, Joanne remarried, or either party died. The agreement also provided that Vincent would purchase Joanne's community property interest in Vincent's medical practice for the sum of $1,250,000.00, to be paid over a period of fifteen years in increasing monthly installments.

By mid-1987, Vincent had fallen into default on both the alimony and property settlement obligations. On November 5, 1987, the district court had orally announced it would enter judgment in favor of Joanne in the amount of $1,300,000.00 in property settlement arrearages. On November 10, 1987, Vincent, who was solvent, filed a voluntary Chapter 7 petition for bankruptcy, under which his property settlement obligation was discharged but his alimony obligation was not. On November 23, 1988, Joanne obtained a judgment for $126,000.00 in alimony arrearages, and the district court ordered Vincent to make alimony payments to Joanne of $3,000.00 on November 1, 1988, and $7,500.00 "on the first day of December 1988 and continuing on the like day of each and every month thereafter until all sums due under the Judgment shall have been paid in full." In addition, the order awarded to Joanne interest on the judgment at the rate of twelve percent per annum from November 10, 1987.

On August 1, 1990, Vincent made his last alimony arrearage payment. This payment of $8,187.80 consisted not only of the $7,500.00 monthly balance due, but also the $687.80 residue of the $126,000.00 judgment, which would have been due on September 1, 1990, had Vincent not prepaid it. On August 31, 1990, Joanne filed a motion to modify the alimony provisions of the parties' divorce decree. This motion was based upon the fact that Vincent's income had increased substantially since the original divorce decree and that the discharge of the property settlement obligation in bankruptcy profoundly affected the parties' relative financial positions, to Joanne's detriment. The domestic relations referee heard Joanne's motion for modification and recommended that Vincent continue alimony payments of $7,500.00 per month until Joanne remarried or either party died. The referee specifically found that the court had jurisdiction to modify the alimony award, which was determined to be nondischargeable in bankruptcy, and that the parties' circumstances had significantly changed, to the benefit of Vincent, at least in part because of Vincent's bankruptcy and discharged property settlement obligation. Because Vincent failed to object to the referee's recommendation, the district court adopted the recommendation and issued the appropriate order. Vincent now appeals that order.

Discussion

1. Appealability of the Order.

Joanne challenges this court's jurisdiction over Vincent's appeal. Joanne contends that, because Vincent failed to file a timely objection to the referee's recommendation in the district court, NRS 125.005(4) ¹ prohibits Vincent from challenging the order on appeal.

NRS 125.005, enacted in 1985, empowered the district court to appoint referees in domestic relations cases. NRS 125.005(1). The statute was intended to alleviate some of the burden on the district courts by allowing domestic relations referees to share the workload. Hearings on S.B. 87 Before the Nevada Assembly Judiciary Committee, 63rd Session (March 28, 1985). Senate Bill 87, now codified as NRS 125.005, provided that, if a referee's findings were not challenged in a timely manner, they would be adopted by the district court, and they would not be open to challenge at a later date. Id. This procedure was designed to reduce the burden on the district court. Id.

Where a party fails to file a timely challenge to the referee's findings in the district court, NRS 125.005(4) precludes any later challenge before the district court; it does not preclude a challenge before this court of the referee's findings adopted by the district court. In enacting NRS 125.005, the legislature did not mean to foreclose a party from all avenues of appeal from a referee's decision. On the contrary, the Assembly Judiciary Committee hearings reveal that some legislators were concerned that the statute would give referees too much judicial authority. Id. In these legislative hearings, it was stated that NRS 125.005 does not "delegate judicial power; it delegates certain fact finding and recommending power and, in any event, it takes a judge to do anything." Id. In light of the Legislature's expressed concern with limiting the powers of the domestic relations referee, we decline to interpret NRS 125.005(4) in a manner that would often make the referee the final arbiter and the highest legal authority over many legal disputes. Although Vincent failed to make a timely objection to the referee's report recommending alimony modification, and therefore Vincent was foreclosed from challenging the referee's report in the district court, NRS 125.005(4) does not bar Vincent's appeal to this court of the district court's order adopting the findings and recommendations of the domestic relations referee.

2. Jurisdiction to Modify Alimony.

Vincent contends the district court had no jurisdiction to modify the alimony award because he had made his final alimony payment before Joanne filed her motion, so there were no unaccrued alimony payments remaining to modify.

NRS 125.150(7) states:

If a decree of divorce, or an agreement between the parties which was ratified, adopted or approved in a decree of divorce, provides for specified periodic payments of alimony, the decree or agreement is not subject to modification by the court as to accrued payments. Payments pursuant to a decree entered on or after July 1, 1975, which have not accrued at the time a motion for modification is filed may be modified upon a showing of changed circumstances, whether or not the court has expressly retained jurisdiction for the modification.

See Hildahl v. Hildahl, 95 Nev. 657, 660, 601 P.2d 58, 60 (1979) (alimony payments once accrued are non-modifiable). The district court's jurisdiction, therefore, is co-existent with the alimony order itself, and the alimony award may not be modified after the order has expired of its own terms, since a court cannot modify that which no longer exists. See Brown v. Brown, 8 Wash.App. 528, 507 P.2d 157, 158-59 (1973); Russell G. Donaldson, J.D., Annotation, Power to Modify Spousal Support Award for a Limited Term, Issued in Conjunction with Divorce, So As to Extend the Term or Make the Award Permanent, 62 A.L.R.4th 180, 186-87, 216-19 (1988).

In Schryver v. Schryver, 108 Nev. 190, 826 P.2d 569 (1992), we shed light on the meaning of "accrued payments" in NRS 125.150(7). In Schryver, husband and wife were divorced and husband was ordered to pay wife $1,200.00 per month in alimony beginning on October 1, 1982, and continuing for a period of eight years. Id. at 190, 826 P.2d at 569-70. September of 1990 was the last month husband was required to make alimony payments under the divorce decree, and husband paid the last payments of $1,200.00 in full at the beginning of the month. Id. at 190, 826 P.2d at 570. In the middle of the month, wife, seeking an increase and extension of the alimony payments, filed a motion to modify the alimony portion of the divorce decree. Id. at 190-91, 826 P.2d at 570. The district court dismissed the motion for modification, and although it did not state its grounds for the dismissal, both the litigants and this court assumed the dismissal was for lack of jurisdiction. Id. at 191, 826 P.2d at 570.

Wife contended on appeal that, although husband had made his final alimony payment prior to her motion for modification, the term of support, and thus the court's jurisdiction, did not terminate until the last day of the month. Id. In a case of first impression in Nevada, we accepted wife's contentions and found the district...