LAM v. LAM

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Docket Number

No. 6193

Attorney(S)

Jack J. Pursel, of Las Vegas, for Appellant. Edward G. Marshall, of Las Vegas, for Respondent.

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Smart Summary

Factual and Procedural Background

Neng Yee Lam filed for divorce from her husband, Kai Sing Lam, on April 13, 1967, in Nevada. Service of process was made by publication and personal service on the husband outside the state. Kai Sing Lam failed to file an answer, resulting in a default judgment. The divorce decree was entered on May 17, 1967, awarding custody of the children to the mother but making no provisions for child support or property division due to lack of personal jurisdiction over the husband and absence of property within the state.

Almost two years later, on February 25, 1969, Kai Sing Lam moved to modify the decree, requesting changes to visitation rights and offering child support payments. Subsequently, on March 12, 1969, Neng Yee Lam moved to modify the decree seeking division of property. After hearing both motions, the trial court ordered the husband to deposit funds from a Canadian bank account into a trust for child support and directed an equal division of the remaining funds. Kai Sing Lam appealed, challenging the court's jurisdiction to modify the decree regarding property division, contending that his appearance for child support and custody did not extend to property matters not litigated in the original action.

Legal Issues Presented

Whether the trial court had jurisdiction to modify the divorce decree with respect to property division when the husband’s appearance was limited to child custody and support matters.
Whether a judgment and decree of divorce can be modified beyond the six-month limitation period of Rule 60(b) and (c) for matters unrelated to child custody and support.
Whether the husband’s participation in modification proceedings concerning child custody and support implicitly authorized modification of property division.

Arguments of the Parties

Appellant's Arguments

The trial court lacked jurisdiction to modify the final divorce decree concerning property division because the husband’s appearance was limited to child custody and support issues.
The motion to modify was filed beyond the six-month limitation period prescribed by Rule 60(b) and (c), thus barring modification of property matters.
Property division was never adjudicated at the original trial, and no stipulation exists to permit its modification.

Respondent's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927)	Trial court’s primary duty to the welfare of children in divorce proceedings.	Supported the court’s finding that child custody and support matters may be reopened at any time for the welfare of the children.
McFarlane v. McFarlane, 73 P. 203 (Ore. 1903); 71 A.L.R.2d 1370, 1403	Permitting modification of child-related matters beyond normal time limits.	Confirmed that modification of child welfare matters is timely and appropriate despite time limitations on other modifications.
Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960)	Restriction on modification of property division absent stipulation.	Supported the court’s conclusion that property division cannot be modified unless stipulated by parties.
Finley v. Finley, 65 Nev. 113, 189 P.2d 334 (1948); overruled on other grounds by Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964)	Limitations on modifying property division in divorce decrees.	Referenced to show that property division modification is restricted and governed by statute and stipulation.

Court's Reasoning and Analysis

The court began by distinguishing between matters relating to children and property in divorce modification proceedings. It emphasized that under NRS 125.140(2), child custody and support issues may be reopened at any time due to the primary duty of the court to protect the welfare of children, exempting these issues from the six-month limitation of Rule 60(b) and (c). The husband’s appearance and motion to modify custody and child support were therefore timely and valid, making the court’s order on these matters binding and enforceable.

Conversely, the court noted that property division was not adjudicated in the original trial because neither the husband nor the property was before the court. Under NRS 125.150(5), property division cannot be modified later unless there is an express stipulation between the parties. Since no such stipulation existed and the husband’s appearance was limited to child-related matters, the court lacked jurisdiction to modify the property division after the six-month period. The court rejected the argument that the property division was part of a separate action or implicitly included in the modification proceedings for child support and custody.

Accordingly, the court affirmed the order relating to child support but reversed and dismissed the portion directing the disposition of property interests.

Holding and Implications

The court’s final decision was to affirm the modification order concerning child custody and support and to reverse and dismiss the order regarding property division.

The direct effect of this decision is to limit the scope of modification proceedings in divorce cases to those matters properly before the court and within statutory time limits. Specifically, it confirms that child-related matters may be modified at any time for the welfare of the children, but property division cannot be modified after the six-month period without stipulation. The opinion sets no new precedent beyond clarifying the application of existing statutes and rules to the facts presented.

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KAI SING LAM, APPELLANT, v. NENG YEE LAM, RESPONDENT.

OPINION

By the Court, ZENOFF, J.:

Neng Yee Lam, wife of Kai Sing Lam and mother of their three children, filed for divorce in Nevada on April 13, 1967. Service of process was made by publication and personal service upon her husband outside the state. He failed to file an answer and judgment was taken by default. On May 17, 1967 the divorce decree was granted awarding custody of the children to the mother, but in the absence of personal jurisdiction over the defendant and since no property was located within the state no provisions for child support or division of property were made.

Kai Sing moved to modify the decree on February 25, 1969, which was almost two years after the decree was entered, thus, beyond the six months limitation period provided in Rule 60(b) and (c). Kai Sing requested in his motion to modify certain visitation rights of the children and volunteered certain child support payments. On March 12, 1969 Neng Yee moved on her part to modify the decree asking for a division of their property. After hearing both motions the trial court ordered the former husband to deposit funds from a Canadian bank account into a trust account from which child support would be payable and the remainder of the monies on deposit in the Canadian bank to be equally divided between the parties. It is this last order Kai Sing challenges contending that the trial court lacked jurisdiction to modify the final divorce decree respecting the property. The question principally on appeal is whether or not by entering his appearance for child support and custody that appearance supported also the division of property that had not been litigated in the principal action.

1. A judgment and decree of divorce cannot be modified, vacated or set aside except upon the terms or reasons set by rules or statute. The pertinent statute in this case is NRS 125.140(2) which specifically allows the reopening of a judgment and decree of divorce for matters relating to children of a marriage at any time. Their welfare which, of course, is a primary duty of a trial court (Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927)), exempts such matters from the time limitations of Rule 60(b) and (c). The court having had original jurisdiction over the children in the first instance, a motion to redetermine matters affecting their welfare unquestionably was timely and appropriate. McFarlane v. McFarlane, 73 P. 203 (Ore. 1903); 71 A.L.R.2d 1370, 1403. The personal appearance of the father, indeed, his initiating the modification proceedings caused the modification order as to custody and support to be all the more binding and enforceable.

2. The same cannot be said of the property division, however. Neither the defendant nor the property were before the court at the original trial. Properly, no provision for property division could then be made. The question is, can that division be made now when the husband's appearance was for unrelated matters and not within the six months period of Rule 60?

The issue of property was not adjudicated at the trial, therefore, it cannot be the subject of a subsequent modification proceeding without an express stipulation. This is the net effect of NRS 125.150(5). See also Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960); Finley v. Finley, 65 Nev. 113, 118, 189 P.2d 334 (1948) (overruled on another point in Day v. Day, 80 Nev. 386, 395 P.2d 321 (1964)). Perhaps NRS 125.150(5), amended as of 1949, was changed for the purposes of the Finley-Schmutzer situations. Whatever the reason, by the terms of the amended statute, only a stipulation between the parties can do the job as respects their property differences. Prior to the amendment, not even a stipulation could fill the void in a modification proceeding that was created in the original proceeding. There is no stipulation respecting its disposition, therefore, the appearance of the husband is limited to matters concerning the welfare of the children and none other.

3. Consideration of other so-called issues is unnecessary. We do not accept the argument that these proceedings were in reality one of modification for the custody and child support, but a separate action as to the property. None of the characteristics of a separate action are present.

The order relating to child support is affirmed, but that portion directing the disposition of property interests is reversed and dismissed.

BATJER and THOMPSON, JJ., and YOUNG, D.J., and GABRIELLI, D.J., concur.