Sweeney v. Sweeney
| Decision Date | 02 April 1919 |
| Docket Number | 2359. |
| Citation | 179 P. 638,42 Nev. 431 |
| Parties | SWEENEY v. SWEENEY et al. |
| Court | Nevada Supreme Court |
Appeal from District Court, Ormsby County; Frank P. Langan, Judge.
Proceeding by Mable Viola Sweeney against George A. Bartlett and others as executors of the last will and testament of James G Sweeney, deceased, substituted as defendants for deceased. From order and judgment for petitioner, defendants appeal. Reversed.
H. V Morehouse, of Reno, for appellants.
Norcross Thatcher & Woodburn, of Reno, for respondent.
This proceeding was begun on the 13th day of October, 1917, by petition and motion of Mable Viola Sweeney, entitled in the divorce action of Mable Viola Sweeney, plaintiff, against James G. Sweeney, defendant, to have the judgment for absolute divorce rendered therein on the 30th day of December, 1914, modified, altered, and amended so as to make the alimony awarded the plaintiff and for the support of the minor child of the marriage a lien upon the estate of the defendant, who died on the 7th day of July, 1917, superior to creditors and the devisees under the last will and testament of the defendant, and, further, to have the present value of the judgment ascertained and determined, and, when ascertained and determined, adjudged and decreed to be a lawful claim against the estate of the defendant in the hands of his executors, as a judgment made and found on the date of the original decree, to wit, December 30, 1914.
The decree of divorce, among other things, provides as follows:
"It is further ordered, adjudged, and decreed that defendant pay to plaintiff, beginning with the date of this decree, payable in advance, the sum of $25 per month each and every month for the support, care, maintenance and education of said minor child, Alice Louise Sweeney, until she attains her majority, and in like manner and time pay to the plaintiff the further sum of $50 each and every month, until the plaintiff may again marry, as alimony for her support."
The petitioner sets up in her petition her marriage, her decree of divorce, the death of the defendant, his last will and testament, the value of the testator's estate, approximately $30,000, the probate of his will devising all of his property to his executors, except a bequest of $2,000 to his daughter, Alice Louise Sweeney, the issuance of letters testamentary to the executors (appellants), and the publication of notice to creditors. She further alleges that no provision was made in the divorce judgment to secure the sums ordered to be paid to plaintiff by the defendant for the support of said daughter, a minor child of the marriage whose custody, by the terms of the decree, was awarded to plaintiff, and, further, that no provision was made in the said decree to secure the alimony awarded plaintiff. And upon information and belief she alleges that the executors of the estate of James G. Sweeney will refuse to continue payment of said sums and will decline and refuse to set apart any part or portion of the estate of the defendant to secure the continued payment of said sums, or either of them, and, being without remedy, she demands that the executors of the last will and testament of James G. Sweeney be substituted as defendants for their testator in the divorce suit, and that the judgment for divorce be modified, altered, and amended in conformity to the prayer of her petition.
The district court, upon a hearing of the motion, substituted the executors as defendants for their testator in the divorce suit, and by its order found the present value of the judgment in said action to be $10,022.13, of which sum $1,214.13 (says the order) is for the care, custody, and support of the minor child, Alice Louise Sweeney, and $8,808, is for the support and maintenance of the plaintiff in said action, taking into consideration the life expectancy of said Alice Louise Sweeney, the life expectancy of plaintiff, Mable Viola Sweeney, and taking into consideration the chances of the remarriage of the plaintiff, Mable Viola Sweeney. And by its order adjudged and decreed the value of the judgment, so ascertained and determined, to be paid Mable Viola Sweeney in lieu of and in place of the monthly sums as provided in said decree of divorce, and further ordered, adjudged, and decreed that the lump sum be and is made a lien upon the property and assets of the estate of James G. Sweeney, deceased, as a judgment made and found on the date of the original decree, to wit, December 30, 1914, and further ordered, adjudged, and decreed that said judgment be approved as an approved and allowed claim against said estate and paid in the due course of its administration and settlement.
A certified copy of the judgment for divorce was, within the time required by law, presented to the representatives of the estate of James G. Sweeney, deceased, as a claim against his estate, which was neither approved nor rejected. It appears that thereafter the attorneys for the respective parties entered into a written stipulation, in part as follows:
"That the above-entitled proceedings be heard and determined, and that in all respects said proceedings be considered as a suit and action against the estate of James G. Sweeney upon said claim as though the same had been rejected, and that both...
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Vanderbilt v. Vanderbilt
...an end to the husband's duty to support the wife provided, of course, that the Nevada courts had power to do this. Sweney v. Sweeney, 42 Nev. 431, 438—439, 179 P. 638, 639—640; Herrick v. Herrick, 55 Nev. 59, 68, 25 P.2d 378, 380. See Estin v. Estin, 334 U.S. 541, 547, 68 S.Ct. 1213, 1217, ......
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Roskein v. Roskein
...same situation does not exist here, for the Nevada court did not reserve jurisdiction to revise its final judgment. Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638 (Sup.Ct.1919), is the forerunner of a number of Nevada decisions holding that in the absence of a reservation of jurisdiction and i......
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Vanderbilt v. Vanderbilt
...alimony to the wife or reserving jurisdiction to do so, 'there can be no grant of alimony after such a divorce'. Sweeney v. Sweeney, 42 Nev. 431, 438-439, 179 P. 638, 639; see Lynn v. Lynn, 302 N.Y. 193, 203, 97 N.E.2d 748, 752, certiorari denied 342 U.S. 849, 72 S.Ct. 72, 96 L.Ed. 640. Tha......
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Cavell v. Cavell
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