Weeks v. Weeks, 4183

• Decision Date: 19 October 1959
• Docket Number: No. 4183,4183
• Citation: 75 Nev. 411,345 P.2d 228
• Parties: Russel S. WEEKS, Appellant, v. Dorothy C. WEEKS, Respondent.
• Court: Nevada Supreme Court

Page 228

345 P.2d 228

75 Nev. 411

Russel S. WEEKS, Appellant, v. Dorothy C. WEEKS, Respondent.

No. 4183.

Supreme Court of Nevada.

Oct. 19, 1959.

Vaughan & Hull, Elko, Pike & McLaughlin, Reno, for appellant.

Ralph L. Denton, Las Vegas, Bible, McDonald & Jensen, Reno, for respondent.

McNAMEE, Chief Justice.

This is an action for divorce which originally came before this court for the purpose of reviewing the judgment of the trial court with respect to the division of property. The judgment was reversed with regard to the ownership of securities worth approximately $120,000 which had been awarded to the husband as his sole and separate property. At that time this court said:

'Reversed and remanded with instruction to modify the judgment by providing that the securities therein listed are owned by the parties * * * as joint tenants, with right of survivorship and not as tenants in common, and for further proceedings in accordance with this opinion.'

Prior to this concluding paragraph the opinion contained the following:

'In remanding this case, a further observation is necessary. We have statutory provisions to guide the court in making disposition of community property of the parties. No such disposition may be made by us in the first instance. Our holding that the securities are the joint property of the parties may well disturb the factual situation upon which the trial court relied in making its final disposition of the property of the parties. On remand, therefore, the trial court must be left at liberty to make a final order for such disposition, after such hearing and upon such notice to the parties as may appear proper.' See Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750, 754.

This ruling which gave the wife approximately $60,000 worth of property theretofore, by the trial court, awarded to the husband, made the wife that much richer while at the same time it made the husband that much poorer. This changed situation of the parties would therefore under our statute ¹ be a matter for the trial court to consider in its disposition of the community property, and it obviously was a matter not considered or contemplated by the trial court in its original decision.

'The condition in which they will be left' by the divorce is materially changed by the reversal and it then became the duty of the trial court to take into consideration the new situation of the parties in order to determine whether its original disposition of the community property was proper.

Of course it was contemplated that the reconsideration would be made by Judge Wines, the judge who had tried the case.

On remand Judge Wines made an order assigning the case to Judge Watson. The wife then filed a motion for the court 'to conform its findings, conclusions, and judgment and decree to the decision of the Supreme Court.' The husband also filed a motion for the court 'to make a final order of disposition of the community property of the parties, and in making said order, to redistribute the said community property, on the ground that the factual situation upon which the trial court relied in distributing the community property in the first instance had been changed by the decision of the Supreme Court.'

Prior to the argument on these motions, counsel for the husband, appellant herein, orally made an 'objection to the procedure wherein a judge, other than the trial judge who heard the evidence originally is permitted to hear and rule upon defendant's motion to redistribute.' This objection was overruled.

After hearing the said motions of the respective parties, and considering the transcript of the evidence in the original trial, Judge Watson entered a judgment to the following effect:

The original judgment and decree was modified to provide (1) that the securities were the property of the parties as joint tenants with right of survivorship and not as tenants in common; and (2) that appellant pay respondent interest at the rate of 6% per annum on the deferred payments due or to become due under the original judgment which was silent as to interest, with such interest to be a lien as in the case of the principal sum.

Appeal is now before us on this latter judgment.

Appellant contends that it was error (1) for Judge Wines to disqualify himself after remittitur from the Supreme Court, and (2) to assign the case for further proceedings to a judge who had not heard the testimony.

We are of the opinion that this contention of appellant cannot be sustained in view of our expressions in State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 283, 200 P.2d 698, wherein we said: 'There arises from the language of the rule the necessary inference that a judge empowered to hear a case has the power, in his discretion to request another judge to...