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Doan v. Wilkerson

Supreme Court of Nevada, En Banc

June 26, 2014

CRAIG A. DOAN, Appellant,
v.
RICHARD WILKERSON, PERSONAL REPRESENTATIVE, Respondent

Appeal from a district court order modifying a divorce decree to divide marital property that was disclosed in the divorce pleadings but omitted from the written divorce decree. Eighth Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge.

Lemons, Grundy & Eisenberg and Christopher M. Rusby, Reno, for Appellant.

Willick Law Group and Marshal S. Willick, Las Vegas, for Respondent.

Cherry, J. We concur: Gibbons, C.J., Pickering, J., Hardesty, J., Parraguirre, J., Douglas, J., Saitta, J.

OPINION

Page 499

CHERRY, J.

This case presents us with the opportunity to address whether and under what circumstances a marital asset omitted from the divorce decree may be partitioned through a motion for relief from judgment that is filed many years after the divorce was finalized. Because the time frame for filing a motion for relief from judgment under NRCP 60(b) is within six months after the decree is entered, we conclude that an ex-spouse who did not timely pursue a motion for relief from a divorce decree is not entitled to partition absent exceptional circumstances justifying equitable relief. See Bonnell v. Lawrence, 128 Nev.___, ___, 282 P.3d 712, 715 (2012). One such circumstance justifying equitable relief is when a community asset was not litigated and adjudicated in the divorce proceedings.

Here, the contested marital asset was disclosed and discussed during the course of the divorce proceedings and then left out of the divorce decree. The ex-spouse then waited more than six years after the final decree was entered to file a motion for relief from judgment, long after the applicable six-month period under NRCP 60(b) had expired. Furthermore, even if the motion were considered an independent action for equitable relief, the facts here do not warrant equitable relief because the asset was adjudicated in the divorce proceedings. Accordingly, we reverse

Page 500

the district court's order modifying the final decree of divorce.

FACTS AND PROCEDURAL HISTORY

Catherine Doan and appellant Craig Doan married in May 1985. During the course of their marriage, Craig was employed as an air traffic controller for the Federal Aviation Administration (FAA). Craig retired from the FAA with more than 23 years of service. He received multiple retirement benefits as a federal employee.

Before Craig retired, the parties filed an action for divorce, seeking dissolution of the marriage and an equitable division of community debts and assets. Catherine and Craig exchanged affidavits of financial condition setting forth their respective monthly incomes, monthly expenses, and marital assets. Although not identifying any specific account by name, both Catherine and Craig indicated in their affidavits that they owned retirement accounts or pensions, or both. Craig also listed retirement contributions as a monthly expense.

In anticipation of trial, Catherine and Craig each filed pretrial memoranda. Catherine specified in her memorandum that there were federal retirement benefits accrued during the marriage. Craig attached statements of earnings and leave from the FAA, which indicated that he received retirement benefits. He also provided W-2 wage and tax ...


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