Petition for Writ of Certiorari — Spillane v. Spillane, 109 S. Ct. 130 (1988) (No. 88-45)
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88 = A 5 ae Supreme Court, U.S.
‘ | FILED
JUN 28 1968
JOSEPH F. SPANIOL, JR.
CLERK
No. 87 -
In The
Supreme Court of the United States
October Term, 1987
SHERRI SPILLANE
Petitioner,
.
FRANK MORRISON SPILLANE,
a/k/a MICKEY SPILLANE,
Respondent.
Petition for Writ of Certiorari
To the Supreme Court of Nevada
MARTIN MALINOU
334 Smith Street
Providence, Rhode Island 02908
(401) 331-2340
COUNSEL OF RECORD
Questions Presented
I
Did the Nevada Supreme Court aggregate of divorce
action orders entered during the automatic stay in peti-
tioner’s bankruptcy chapter 12 case, allowing withdrawal
of Nevada counsel’ (October 16, 1986), reconsidering
and allowing withdrawal of Nevada counsel to stand
(October 30, 1986), directing petitioner to secure new
Nevada counsel, pay $1,000 as a sanction, and denying
appointment of new Nevada counsel (September 23,
1987), and dismissing petitioner’s appeal noticed May 22,
1985 as a sanction for failure to secure new Nevada
counsel and pay $1,000 (October 29, 1987), violate section
362(a) of the Bankruptcy Code, and the Due Process
Clause of the Fourteenth Amendment of the Constitution
of the United States?
Il
Did the Nevada Supreme Court Order (October 29,
1987) dismissing petitioner’s appeal as a sanction for
failure to secure new Nevada counsel constitute state
action, depriving her of the procedural right established by
Nevada Supreme Court Rule 47 to await the never-served
and never-filed notice-from-the-respondent to appoint
new Nevada counsel or appear in person as a jurisdictional
requisite for dismissal of her appeal noticed May 22, 1985,
contrary to the Due Process Clause of the Fourteenth
Amendment of the Constitution of the United States?
‘LIST OF PARTIES. - Veronica L. Burris; Esq.,
acquired party respondent status by her successful motion
to withdraw (Appx. C; Appx. D) from the divorce appeal.
The parties named in the case caption are petitioner Sherri
Spillane and respondent Frank Morrison Spillane, a/k/a
Mickey Spillane.
Ill
Did the failure of the Eighth Judicial District Court to
satisfy itself of the fairness of the decrees dissolving Mickey
Spillane’s 19 year marriage to the unrepresented petitioner,
constitute state action depriving her of Fourteenth Amend-
ment Due Process protection under the Constitution of the
United States?
il
TABLE OF CONTENTS
eb yy le be |, |) | > FS i
BE WP PENI os doce ssececccscccccccccess in.!
PETITION FOR WRIT OF CERTIORARI.......... ]
GPU OY ce ccc ccccccscccccccccccccccces 2
PSR b he eeccebccscccceccccccccccccece 2
STATUTES AND RULES OF COURT INVOLVED.. 4
SUPREME E GOW BEE GA occ ccccccccccccccccs 7
REASONS FOR GRANTING THE WRIT.......... 15
GRIEEIEUs 65 be Sob B8b 6s cee sccnccccccvccccces 17
APPENDIX A Nevada Supreme Court Order
Dismissing Appeal As a Sanc-
tion And Reducing Monetary
Sanctions to $1,000
Judgment, entered October
es dee Ce acnceee A-l
APPENDIX B Nevada Supreme Court Order
Denying Petition For Re-
hearsing And Criticizing New
Nevada Admittee’s Rehearing
Arguments As Frivolous
Warranting Sanctions....... B-1
APPENDIX C Nevada Supreme Court Order
Allowing Withdrawal Of
Nevada Counsel ........... C-]
APPENDIX D Nevada Supreme Court Order
Reconsidering And Allowing
Withdrawal Of Nevada
et D-3
APPENDIX E Nevada Supreme Court Order
Denying Appointment Of
Nevada Counsel, Sanctioning
Petitioner $500, Scheduling
Briefs, And Striking Part Of
Undocketed Appeal In
Companion Case........... E-1
APPENDIX F
APPENDIX G
APPENDIX H
APPENDIX |
APPENDIX J
Nevada Supreme Court Rules
Decision Functionally
Excluding Review On Merits
Of Divorce From Scope Of
Appellate Review ..........
Nevada Supreme Court Order
For Deferred Briefing On
Merits Pending Resolution Of
July 9, 1985 Appeal Notice. .
Consolidated Judgment Of
The Eighth Judicial District
Court Denying Post Trial
Motion Challenging Amended
DOVGICS TRONTER win cwcssceccs
Consolidated Decision Of The
Eighth Judicial District Court
With Findings Of Fact And
Conclusions Of Law In
Companion Case A 232411..
Consolidated Judgment Of
The Eighth Judicial District
Court Again Denying Post
Trial Motion Challenging
Amended Divorce Decree
And Dismissing Companion
Case With $9,101.70 Costs ..
iv
G-1
H-1
TABLE OF AUTHORITIES
CASES
Boddie v. Connecticut, 401 U.S. 371 ................ 16
Rogers v. Rogers, 671 P. 2d 160 (Utah 1983) .......... 17
CONSTITUTION
U.S. Comet. AMMGNG. FEV, GOB. Foc ccccccccccacece 12,13
STATUTE
USC. CC Gre eine 10
COURT RULE
Rule 47, Nevada Supreme Court Rules................ 9
No. 87 -
In The
Supreme Court of the United States
October Term, 1987
SHERRI SPILLANE,
Petitioner
v.
FRANK MORRISON SPILLANE,
a/k/a MICKEY SPILLANE,
Respondent.
Petition for Writ of Certiorari
te the Supreme Court of Nevada
Petitioner Sherri Spillane prays that a writ of certiorari
issue to review the judgment of the Supreme Court of the
State of Nevada rendered on October 29, 1987, in case
number 16643, also numbered 17584, styled Sherri Spillane,
Appellant, vs Frank Morrison Spillane, Respondent,
wherein the Nevada Supreme Court dismissed the
petitioner's appeal as a sanction in a divorce action docketed
in the Eighth Judicial District Court number D 53075, and
entered a judgment for $1,000 against petitioner as a
sanction.
Opinions Below
The Nevada Supreme Court did not deliver an opinion
designated as an opinion. The Nevada Supreme Court
entered an unreported order (Appx. A) dismissing
petitioner’s appeal as a sanction, and entered an unreported
order (Appx. B) denying petitioner a rehearing. The Nevada
Supreme Court had entered unreported orders prior to the
order dismissing petitioner’s appeal. The unreported orders
are printed in the appendix and are described as (1) single
justice order allowing withdrawal of Nevada counsel (Appx.
C), (2) three judge panel order reconsidering and allowing
withdrawal of Nevada counsel to stand (Appx. D), (3) order
denying appointment of new Nevada counsel, sanctioning
petitioner $500, scheduling briefs, and striking portion of
undocketed appeal in companion case (Appx. E), (4) rules
decision functionally excluding review on merits of divorce
from scope of appellate review (Appx. F), and (5) order for
deferred briefing on merits. The Eighth Judicial District
Court rendered an unreported Decision containing findings
of fact and conclusions of law in a companion case originally
filed on August 22, 1984, docket numbered A 232411, and
consolidated with the divorce action docket numbered D
53075 (filed March 24, 1983) which is the subject matter of
the proceedings sought to be reviewed; the Decision is
printed in the Appendix (Appx. I).
Jurisdiction
The Nevada Supreme Court judgment sought to be
reviewed (Appx. A) was rendered on October 29, 1987. The
petitioner’s timely petition for rehearing was denied on
March 30, 1988 (Appx. B). The jurisdiction of this Court is
invoked under 28 U.S.C. 1257(3) since the petitioner
specially claims a right to a stay of the Nevada Supreme
Court proceedings in accordance with 11 U.S.C. 362(a)
(automatic stay provision of the Bankruptcy Code), and also
specially claims a right to be heard on the merits of her ap-
peal under the Due Process Clause of the Fourteenth
Amendment of the Constitution of the United States.
Statutes and Rules of Court Involved
The case involves section 362(a) of the Bankruptcy Code
(Title 11, USC) as amended. Title 11, USC was enacted into
law by Act Nov. 6, 1978, P. L. 95-598, Title I, sec. 101, 92
Stat. 2549. Section 362(a) provides:
Sec.362.Automatic stay.
(a) Except as provided in subsection (b) of this section, a
petition filed under section 301, 302, or 303 of this title, or
an application filed under section 5(a)(3) of the Securities In-
vestor Protection Act of 1970 (15 U.S.C. 78eee(a)(3),
Operates as a stay, applicable to all entities, of-
(1)the commencement or continuation, including the
issuance or employment of process, of a judicial, ad-
mistrative, or other action or proceeding against the debtor
that was or could have been commenced before the com-
mencement of the case under this title, or to recover a claim
against the debtor that arose before the commencement of
the case under this title;
(2)the enforcement, against the debtor or against property of
the estate, of a judgment obtained before the commence-
ment of the case under this title;
(3)any act to obtain possession of property of the estate or of
property from the estate, or to exercise control over property
of the estate;
(4)any act to create, perfect, or enforce any lien against
property of the estate;
(S)any act to create, perfect, or enforce against property of
the estate any lien to the extent that such lien secures a claim
that arose before the commencement of the case under this
title;
(6)any act to collect, assess, or recover a claim against the
debtor that arose before the commencement of the case
under this title;
(7)the setoff of any debt owing to the debtor that arose
before the cornmencement of the case under this title against
any claim against the debtor, and
(8)the commencement or continuation of a proceeding
before the United States Tax Court concerning the debtor.
The case involves Rule 47, Nevada Supreme Court Rules:
Rule 47.
Death or removal of attorney; appointment
of another attorney or appearance
in person.
When an attorney dies, or is removed or suspended, or
ceases to act as such, a party to an action for whom he was
acting as attorney shall, before any further proceedings are
had against him, be required by the adverse party, by written
notice, to appoint another attorney or to appear in person.
The case involves the Due Process Clause of the
Fourteenth Amendment of the Constitution of the United
States:
‘*... nor shall any state deprive any person of life, liberty,
or property, without due process of law: ...”’
Statement of the Case
On April 26, 1983, the respondent Mickey Spillane
obtained an ex parte amended decree of divorce from the
petitioner Sherri Spillane in the Eighth Judicial District
Court of the State of Nevada, typewritten by the court
secretary to the district judge who signed the ex parte
amended decree, while he (Mickey Spillane) was personally
present in the Clark County Courthouse. Neither the
petitioner Sherri Spillane nor the respondent Mickey Spillane
was represented in the divorce action (D 53075) from the
date the complaint was filed by the petitioner on March 24,
1983, until August 22, 1984, when the petitioner filed a post-
trial motion challenging the ex parte amended decree
through her former Nevada counsel Veronica L.
Burris, Esq.
On February 21, 1985, petitioner Sherri Spillane filed a
petition in United States Bankruptcy Court for the District
of Rhode Island seeking relief in accordance with chapter 13
of Title 11, United States Code. On June 25, 1986, the
bankruptcy court entered an order confirming the
petitioner’s plan for repayment of her debts.
On April 18, 1985, the Eighth Judicial District Court
entered a judgment (Appx. H) denying petitioner’s post-trial
motion challenging the ex parte amended divorce decree.
Petitioner appealed to the Nevada Supreme Court from the
judgment denying her challenge to the ex parte amended
divorce decree by filing a notice of appeal on May 22, 1985.
On November 25, 1985, the Nevada Supreme Court
entered an order (Appx. G) which deferred the briefing
schedule. The next order from the Nevada Supreme Court
was entered on September 4, 1986 (Appx. F) scheduling
briefs. Meanwhile, the Eighth Judicial District Court con-
ducted a trial (over petitioner’s objection) in a companion
case docket numbered A 232411 which petitioner had filed
against this respondent on August 22, 1984, simultaneously
with her post-trial motion in the divorce case D 53075; the
district court made findings of fact and conclusions of law in
rendering a Decision (Appx. I) on July 16, 1986, on which
the district court later based a judgment (Appx. J) entered
on July 30, 1986. A part of that judgment after trial ‘‘once
again denied’ (J-2) the petitioner’s post-trial motion
challenging the ex parte amended divorce decree. From only
that part of the judgment after trial the petitioner filed a
notice of appeal on August 12, 1986, delaying the filing of
her notice of appeal from remaining parts of the judgment
until her post-trial motions in the companion case A 232411
were decided. The post-trial motions in the companion case
A 232411 were summarily resolved in the trial court after
Nevada counsel Veronica L. Burris, Esq. withdrew as
counsel. Petitioner pro se filed a notice of appeal in
companion case A 232411 on November 5, 1986. That
appeal has not yet been docketed in the Nevada Supreme
Court. Petitioner has no Nevada counsel to represent her in
the companion case A 232411. Patrick Gilbert, Esq., Reno,
Nevada, entered his appearance for petitioner only in the
divorce action D 53075 appellate proceedings sought to be
reviewed.
On October 16, 1986, a single justice of the Nevada
Supreme Court granted Ms.. Burris’ motion to withdraw
from appellate proceedings taken by petitioner Sherri
Spillane in district court divorce action D 53075 (Appx. C).
On October 30, 1986, a three judge panel reconsidered and
allowed Ms. Burris to withdraw (Appx. D). On December 1,
1986, petitioner, acting pro se, requested the Nevada
Supreme Court to appoint counsel to represent her on
appeal, specially claiming a constitutional right to counsel.
On September 23, 1987, the Nevada Supreme Court entered
an order (Appx. E) denying appointment of counsel to
represent the petitioner, directing her to secure new Nevada
counsel, imposing monetary sanctions and warning of
dismissal of her appeal if she failed to comply with the order.
8
2.
On October 26, 1987, petitioner notified the Clerk of the
Nevada Supreme Court that she had secured the services of
Patrick Gilbert, Esq., to represent her in the proceedings
sought to be reviewed.
On October 29, 1987, the Nevada Supreme Court entered
an order dismissing petitioner’s appeals as a sanction and
reducing monetary sanctions earlier awarded against
petitioner to a $1,000 judgment. (Appx. A)
Patrick Gilbert, Esq., Reno, Nevada, filed a timely
petition for rehearing on behalf of the petitioner. The
Nevada Supreme Court entered an order denying the
petition for rehearfing on March 30, 1988. (Appx. B)
How the Federal Questions are Raised
Petitioner Sherri Spillane was not represented by counsel
of record in the appellate proceedings sought to be reviewed
from the time of Ms. Burris withdrawal on October 16,
1986, until October 28, 1988, when Mr. Gilbert filed a
request with the Clerk of the Nevada Supreme Court for
further time to comply with the order entered on September
23, 1987. The request was denied the following day in the
Nevada Supreme Court order of October 29, 1987 (Appx.
A) dismissing the appeals. In the petition for rehearing filed
by Mr. Gilbert on petitioner’s behalf he raised a Fourteenth
Amendment due process question prescinding from the sua
sponte action of the Nevada Supreme Court directing
petitioner to secure new Nevada counsel or face dismissal of
her appeals (E-4). The petition for rehearing argues at page
3:
‘*Respondent failed to comply with SCR 47 requiring
him to give...written notice
SCR 47 provides: ‘‘When an attorney dies, or is
removed or suspended, or ceases to act as such, a party
to an action for whom he was acting as attorney shall,
before any further proceedings are had against him, be
required b, ‘he adverse party, by written notice, to
appoint anc er attorney or to appeal in person.””
**The court acted sua sponte, resulting in Appellant
being denied her right to be heard on the merits of her
appeals in violation of due process of law as secured to
her by the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States.
The respondent never complied with the written notice
requirements of Nevada Supreme Court Rule 47. The
Nevada Supreme Court never gave petitioner the choice of
appearing in person.
In the order entered September 23, 1987 (Appx. E) the
Nevada Supreme Court expressly ruled on the petitioner’s
claim that the proceedings sought to be reviewed have been
stayed by the automatic stay provided by 11 U.S.C. .§362(a).
The order recites (B-2): ( E-s ) 2
“‘On October 6, 1986, appellant advised this court that
she had filed a petition for relief under. Title 11 of the
United States Code in the United States. Bankruptcy
Court for the District of Rhode Island on February 21,
1985. On March 19, 1985, the bankruptcy court issued a
notice of automatic stay pursuant to 11 U.S.C..§362(a).
We infer, from appellant’s filing of the notice of
automatic stay and from her failure to prosecute the
instant appeals, that appellant contends the automatic
stay applies to these appeals. This contention is
incorrect.
10
‘‘Section 362 by its terms only stays proceedings against
the debtor. The statute does not address actions
brought by the debtor which would inure to the benefit
of the ankruptcy estate. Assoc. of St. Croix Hotel, 682
F 2d 446, 448, (3d Cir.1982) (emphasis in original). See
also In re Convention Masters, Inc., 46 B.R. 339
(Bankr. D. Md. 1985) (automatic stay does not bar
bankrupt party from prosecuting pending actions in a
court other than the bankruptcy court). We therefore
conclude that the automatic stay does not apply to the
instant appeals.”’
There was no need for the Nevada Supreme Court to infer
that petitioner contended that the automatic stay applied to
the appellate proceedings sought to be reviewed. By her
motion seeking appointment of appellate counsel the peti-
tioner specifically claimed application of the stay in the
following words:
“I would like the chance to brief and argue the merits
of my appeals. I do not feel competent to by my own
lawyer. I move this Court to appoint a lawyer to
represent me before this court. I cannot afford to pay
counsel fees because I do not have enough money. My
property is subject to control of the United States
Bankruptcy Court for the District of Rhode Island
under a confirmed Chapter 13 plan for repayment of
debts at the rate of $200 per month. The respondent
refuses to understand that the chapter 13 proceedings
have stayed these appellate proceedings and his motion
to strike violates the stay order. I need counsel to argue
this and other points on my behalf.
**...since the landmark decision of Boddie v.
Connecticut, 401 U.S. 371 (1971), there has been litiga-
tion concerning such a right in domestic relations ac-
11
tions. See, McAninch, A CONSTITUTIONAL
RIGHT TO COUNSEL FOR DIVORCE
LITIGANTS, 14 Journal of Family Law 509 (1975-76).
**In connection with this request for appointed counsel
I point out that one of the issues on appeal is the duty of
the trial court as a matter of Fourteenth Amendment
due process protection to wumrepresented divorce
petitioners to satisfy itself that the divorce judgment is
fair. That constitutional question was raised in the trial
court and is therefore before this court for review.
/s/ Sherri Spillane’
(Appellant’s Objection to Respondent’s Motion To
Strike Appeals, Etc. Filed November 18, 1986, And
Appellant’s Motion For Appointment Of Counsel By
Supreme Court, page 2-3, filed Dec. 1, 1986)
On October 6, 1986, petitioner’s foreign counsel filed an
opposition in the Nevada Supreme Court to allowing
withdrawal of Nevada counsel and claimed as follows:
‘*...the motion by Veronica Burris, Esq., to withdraw
as counsel of record is a nullity in view of the automatic
stay since the motion is a continuation of the action
(domestic case D 53075) pending at the time (February
21, 1985) Appellant filed her Chapter 13 petition. The
continuation of actions pending at the time a petition
for chapter 13 relief is filed is stayed under paragraph
(1) of 11 U.S.C. 362(a)...”’ (Appellant’s Opposition To
Withdrawal Of Nevada Counsel Veronica Burris,
Esquire, Until Entry Of New Counsel, page 2, filed
Oct. 17, 1986)
Regarding Question Presented III
The divorce case D 53075 had been consolidated with
companion action A 232411 (independent action challenging
12
the ex parte divorce decree) on November 15, 1984. On
March 26, 1985, Mickey Spillane’s motion to dismiss the in-
dependent action was heard and decided. At the conclusion
of the hearing the trial court denied the petitioner’s post trial
motion challenging the ex parte amended decree in the
divorce case D 53075, although the divorce case was not
assigned for hearing on March 26, 1985. (The judgment bas-
ed on the decision rendered March 26, 1985, is dated April
16, 1985, and entered April 18, 1985. Appx. H). During the
hearing on March 26, 1985, petitioner argued the following
allegations contained in the amended complaint filed on
January 29, 1985, at page 9, paragraphs v and V1.
**The absence of sufficient examination of the pro se
Plaintiff SHERRI SPILLANE by the Court on April 7,
1983, on hearing her Complaint for Divorce, together
with the entry of the original and amended decrees of
divorce containing property settlement agreement
provisions unfair to the Plaintiff, denied the Plaintiff
property rights in community property, alimony and
medical expenses, contrary to the Due Process Clause
of U.S. Const. Amend. XIV, Sec. 1.
VI
Plaintiff specially claims a right under the Due
Process Clause of U.S. Const. Amend. XIV, Sec. 1 to
have been afforded a sufficient examination by the
Court on April 7, 1983, to determine if she was compe-
tent enough to adequately represent herself in her
divorce and property settlement hearing and a right to
receive a sua sponte unlimited continuance of the hear-
ing, if the court determined that she was not competent
to adequately represent herself.”’
At the hearing petitioner’s counsel argued (Reporter’s
transcript of hearing March 26, 1985, pages 20-21):
13
**...the court at the time of the hearing was under a
constitutional duty to question this pro se plaintiff, and
to not have done so constitutes a denial of due
process...
**...It is a denial of due process for a judge in a
divorce action dealing with a pro se plaintiff not to
satisfy himself that the plaintiff is adequately
representec...”’
At the same hearing on March 26, 1985, petitioner’s
counsel informed the Eighth Judicial District Court that she
had filed a petition for chapter 13 relief in the Bankruptcy
Court. (Reporter’s transcript, p. 16, hearing of March 26,
1985). The respondent’s counsel responded to the advice that
a chapter 13 petition had been filed as follows:
**MR. THOMPSON: Your Honor, that is irrelevant to
this case entirely.
**THE COURT: ...it is not important...”
Reasons For Granting the Writ
When former Eighth Judicial District Court Judge
Robert G. Legakes signed the ex parte amended
decree of divorce on April 26, 1983, he knew that the
petitioner had been married to celebrity writer Mickey
Spillane for 19 years. He also knew that she was
unrepresented at the quickie divorce hearing con-
ducted on April 7, 1983, in which her testimony con-
sisted in toto of the following:
“THE COURT: State your name and address.
PLAINTIFF SPILLANE: Sherri Spillane, 3778
Lorraine Lane, Las Vegas, Nevada.
THE COURT: How long have you been a resident of
Las Vegas, Nevada?
PLAINTIFF SPILLANE: About four months.
THE COURT: When you first moved here was it
your intention to make this your home?
PLAINTIFF SPILLANE: Yes, it was.
THE COURT: Has that intention remained with you
up to and including today?
PLAINTIFF SPILLANE: Yes.
THE COURT: You have filed a Complaint for
divorce?
PLAINTIFF SPILLANE: I have.
THE COURT: Did you read it before you filed it?
PLAINTIFF SPILLANE: I did.
THE COURT: Are all of the statements in it true and
correct?
PLAINTIFF SPILLANE: They are.
THE COURT: There are no minor children in issue
of this marriage?
PLAINTIFF SPILLANE: No.
THE COURT: You and your husband have agreed
upon the distribution of the assets between
yourselves?
15
— ll
PLAINTIFF SPILLANE: Yes we have.
THE COURT: And you do feel that it is fair and
equitable under the circumstances of this case?
PLAINTIFF SPILLANE: I do.
THE COURT: You further allege that since the date
of your marriage to this Defendant that you have
become incompatible?
PLAINTIFF SPILLANE: Yes.
THE COURT: Is there any possibility of
reconciliation?
PLAINTIFF SPILLANE: No.
THE COURT: Are you living separate and apart at
this time?
PLAINTIFF SPILLANE: Yes.
THE COURT: How long has that been going on?
PLAINTIFF SPILLANE: Three years.’’
Litigants in divorce actions should be entitled to the
protection of the State as a matter of due process of law
from their own infirmities and incompetence, when the
litigants are not represented by counsel at the hearing.
That contention is important enough for this Court to
grant certiorari. That contention is an extention of fair
access to divorce tribunals as a matter of due process an-
nounced in Boddie v. Connecticut, 401 U.S. 371 (1971).
The action of the Nevada Supreme Court in proceeding
in the face of the automatic stay to dismiss petitioner’s
appeal necessarily rests on the assumption that the peti-
tioner’s property which is the subject of the divorce action
did not come under the control of the bankruptcy court on
February 21, 1985, when the petitioner filed her petition
for relief under chapter 13 of the Bankruptcy Code (Title
11, U.S.C). The decision that the automatic stay did not
apply to the appellate proceedings (E-3) is expressly in
16
conflict with the decision of the Supreme Court of Utah in
Rogers v. Rogers, 671 P. 2d 160 (1983), in which the Utah
Supreme Court held that the filing of bankruptcy by a
wife, after the filing of a petition for divorce, precluded a
Utah trial court from dividing marital property, since the
bankruptcy court has jurisdiction over the bankruptcy and
over ‘‘all related civil matters as well.’’ The Utah Supreme
Court stayed property division until either the property is
excluded from the bankruptcy or the bankruptcy case is
closed.
Conclusion
Fc: the reasons set forth above it is respectfully submitted
that this petition for a writ of certiorari should be granted.
Martin Malinou
344 Smith Street
Providence, Rhode Island 02908
(401) 331-2340
Counsel of Record
17
Nae Eee
A-1
NEVADA SUPREME COURT ORDER DISMISSING
APPEALS AS A SANCTION AND REDUCING
MONETARY SANCTIONS TO $1000 JUDGEMENT
ENTERED OCTOBER 239, 1987
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
Vv.
FRANK MORRISON SPILLANE, Respondent.
No. 17584
SHERRI SPILLANE, Appellant,
V.
FRANK MORRISON SPILLANE, Respondent.
Order Dismissing Appeals
On September 4, 1986, we sanctioned appellant for
filing an untimely appeal in Docket No. 16643. We
ordered appellant to pay respondent $500.00 to reimburse
respondent for the costs incurred in bringing a motion to
dismiss. On September 23, 1987, we noted that appellant
had failed to comply with our previous order. We ordered
appellant to make the payment within thirty days. We
sanctioned appellant an additional $500.00 for filing
untimely and duplicative notices of appeal in Docket No.
17584 and a third appeal filed November 5, 1986, which
has not yet been docketed in this court. We ordered
A-l
appellant to pay the sanctions and to provide the clerk of
this court with proof of payment within thirty days.
Further, in our order of September 23, 1987, we directed
appellant to secure new Nevada counsel to represent her in
these appeals, and to so notify the clerk of this court within
thirty days. We also ordered appellant to cause trans-
mission of the record on appeal in Docket No. 17584
within thirty days. We warned appellant that failure to
comply with our order would result in the immediate
dismissal of Docket No. 16643 and Docket No. 17584.
Appellant has failed to comply with our order of
September 23, 1987, in all respects.' Accordingly, as a
sanction for appellant’s flagrant disregard of our previous
orders and the appellate rules of this court, we hereby
dismiss Docket No. 16643 and Docket No. 17584. Further,
our previous orders of September 4, 1986 and September
23, 1987, imposing sanctions on appellant in the amount of
$1000.00 remain in effect as a judgement of this court en-
titled to enforcement in a court of competent jurisdiction.
It is so ORDERED.’
(signed) _, C.J.
Gunderson
(signed) _, J.
Steffen
(signed) _, J.
Young
(signed) | |
Springer
(signed) _, J.
Mowbray
A-2
'On October 28, 1987, this court received a letter from
Patrick Gilbert, Esq., requesting that we allow appellant
additional time to secure Nevada counsel to represent her in
these appeals. We deny this request. We note that after
appeilant’s previous counsel withdrew on October 16, 1986,
we ordered appellant to secure new Nevada counsel within
thirty days. On September 23, 1987, nearly a year later, we
allowed appellant an additional thirty days to secure
Nevada counsel. Appellant failed to comply with our
orders. Attorney Gilbert’s request for an extension of time
is itself untimely. Further, Gilbert admits that he cannot
submit a formal motion at this time because he has been
unable to complete the necessary pleadings to perfect
association or substitution of counsel. Finally, we note that
the record in these appeals reveals that appellant has
repeatedly employed tactics of delay and has failed in
several instances to comply with our orders. Accordingly,
we deny the request for an extension of time.
?In light of this disposition, we deny as moot all pending
motions in Docket Nos. 16643 and 17584.
A-3
B-1
NEVADA SUPREME COURT ORDER DENYING
PETITION FOR REHEARING AND CRITICIZING
NEW NEVADAIADMITTEE’S REHEARING
ARGUMENTS AS FRIVOLOUS WARRANTING
SANCTIONS.
ENTERED MARCH 30, 198% ?
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
No. 17584
SHERRI SPILLANE, Appellant,
Vv.
FRANK MORRISON SPILLANE, Respondent.
Order Denying Petition for Rehearing
This petition for rehearing challenges the judgement of
this court, entered October 29, 1987, dismissing docket
Nos. 16643 and 17584. Docket No. 16643 was filed on May
22, 1985. By September, 1987, over two years later,
appellant still had not filed the opening brief. Docket No.
17584 was filed on August 12, 1986. By September, 1987,
appellant had still not filed the record on appeal or the
opening brief. On September 4, 1986, we ordered appellant
to pay respondent $500 within thirty days because appellant
B-1
had filed an untimely notice of appeal in No. 16643. By
September, 1987, appellant still had not complied with our
order. On October 16, 1986, we ordered appellant to obtain
new Nevada counsel within thirty days. By September,
1987, appellant still did not have Nevada counsel.
On September 23, 1987, we granted appellant thirty
additional days within which to secure new Nevada
counsel, to file the record on appeal in No. 17584, and to
comply with our order of sanctions. We also sanctioned
appellant an additional $500 for filing duplicative notices of
appeal on August 12, 1986, and November 5, 1986. We
warned appellant that her failure to comply with our order
would result in immediate dismissal of docket Nos 16643
and 17584. Appellant failed in all respects to comply with
our order. Accordingly, on October 29, 1987, we dismissed
these appeals.
In this petition, appellant and her new counsel, Patrick
Gilbert, contend that appellant obtained Nevada counsel as
ordered, and that this court misapprehended the facts. This
contention is frivolous, and is belied by attorney Gilbert’s
own letter to this court, dated October 28, 1987. In this
letter, Gilbert requested additional time for appellant to
secure Nevada counsel. Gilbert stated that he could not
submit a formal motion to appear as appellant’s counsel
because he had been unable to complete the necessary
pleading’s to perfect association or substitution of counsel.
In our order of October 29, 1987, we noted that Gilbert’s
request for an extension of time was itself untimely, having
been received more than thirty days after we ordered
appellant to obtain new counsel.
Appellant next contends that she did not have adequate
notice that she needed to obtain an attorney, and that she
was deprived of an opportunity to be heard on the merits of
her appeals. This claim is frivolous. This court repeatedly
B-2
ordered appellant to obtain counsel and warned her that
her failure to obtain counsel would result in the dismissal of
these appeals. Appellant by her own procrastination
prevented this court from considering the merits of her
appeals.
Appellant next contends that she filed the record on
appeal in No. 17584. This contention is false. The record in
No. 17584 has never been filed with this court. Appellant
failed for over a year to file the record on appeal, forcing
the respondent and this court to spend valuable time
preparing motions and orders to goad her into filing the
record. After more than a year of delay, appellant now
makes the spurious claim that ‘‘an adequate (although
incomplete) record on appeal’’ was on file all along, i.e.,
the record in No. 16643.
On September 4, 1986, we sanctioned appellant $500
because she filed an untimely appeal on July 9, 1985, from
a divorce decree entered in April, 1983. Appellant contends
it was improper to sanction her because it was ‘“‘plausible’’
for her to contend that her motion to set aside the divorce
decree, brought pursuant to NRCP 60(b), was really a
motion for a new trial under NRCP 59, which therefore
tolled the time for filing the notice of appeal. We rejected
this argument in our order of September 4, 1986. It is
frivolous for appellant to raise the same contention now,
over one year later. Similarly, we reject appellant’s conten-
tion that it was improper for this court to sanction her for
filing duplicative notices of appeal on August 12, 1986, and
November 5, 1986.
We conclude that this petition for rehearing is without
merit. Several of appellant’s contentions are frivolous and
are belied by the record. Respondent has requested that we
sanction appellant and her counsel, Patrick Gilbert, for
processing this rehearing petition in a frivolous manner.
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ee a eee eS =
ee et eee ee ee we ek
es
We agree that appellant has misused the appellate processes
of this court, and we admonish attorney Patrick Gilbert
that we do not condone the filing of frivolous pleadings
before this court. See In re Herrmann, 100 Nev. 149, 679 P.
2d 246 (1984). Because Mr. Gilbert is a recent admittee to
the Nevada bar we decline to impose further sanctions in
this instance.
Accordingly, appellant’s contentions lacking merit, we
hereby deny petition for rehearing.
—fnts
It is so ORDERED.”
(signed) _, C.J.
Gunderson
(signed) 3
Steffen
(signed) _, J.
Young
(signed) > -
Springer
(signed) > 3
Mowbray
C-1
NEVADA SUPREME COURT ORDER ALLOWING
WITHDRAWAL OF NEVADA COUNSEL
ENTERED OCTOBER 16, 198%¢
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
No. 17584
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
Order
Appellant’s Nevada counsel, Veronica L. Burris, has
moved to withdraw as counsel of record in both of these
appeals. Counsel asserts that appellant has improvidently
prosecuted these appeals against her advice, that irrecon-
cilable differences have arisen between her and appellant
and appellant’s foreign counsel, Martin Malinou, and that
appellant cannot pay for her services.
Cause appearing, we grant counsel’s motion for leave to
withdraw. Accordingly, Burris shall immediately inform
appellant of her withdrawal from these appeals, and shall
personally serve a copy of this order on appellant, forth-
with. Burris shall provide proof of such service to this
court at her earliest convenience. Apellant shall have thirty
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(30) days from the date of service of this order on her to
secure new Nevada counsel to represent her on this appeal.
Malinou shall not be allowed to represent appellant in
these matters unless and until he associates Nevada
counsel and is granted permission to do so.' Failure to
retain counsel as ordered may result in the immediate
dismissal of these appeals.
It is so ORDERED.
(signed) _, C.J.
Mowbray
‘In light of this order, we deny, without prejudice,
appellant’s motion in docket No. 16643, filed by Malinou,
for an extension of time within which to file an opening
brief.
D-1
NEVADA SUPREME COURT ORDER DENYING
RECONSIDERATION OF ALLOWANCE OF
WITHDRAWAL OF NEVADA COUNSEL
ENTERED OCTOBER 30, 1986
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
No. 17584
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
Order
On October 16, 1986, this court granted appellant’s
Nevada counsel leave to withdraw froin her representation
of appellant. Through her foreign counsel, Martin
Malinou, appellant filed an opposition to counsel’s motion
to withdraw on October 17, 1986. We elect to treat
appellant’s opposition as a motion to reconsider our order
of October 16, 1986.
Cause appearing, we deny appellant’s motion to recon-
sider our order of October 16, 1986.
ieee etteineeenetesiemnmeaaied
— aed
ee es
a
ee
It is so ORDERED.*
D-2
(signed)
Mowbray
(signed)
Springer
(signed)
Steffen
» C5.
» J
J.
E-]
NEVADA SUPREME COURT ORDER DENYING AP-
POINTMENT OF NEVADA COUNSEL, SANCTION-
ING PETITIONER $500, SCHEDULING BRIEFS, AND
STRIKING PARTS OF UNDOCKETED APPEAL IN
COMPANION CASE.
ENTERED SEPTEMBER 23, 1987
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
No. 17584
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
Order
In these appeals, appellant challenges a divorce decree,
an amended divorce decree and several orders of the district
court relating to the divorce decrees.
On October 10, 1986, the law firm of Tingey & Burris
moved to withdraw as appellant’s counsel in these appeals.
On October 16, 1986, we granted counsel’s motion to
withdraw and ordered appellant to secure new Nevada
counsel within thirty days. On October 30, 1986, we denied
E-]
ea ti ial
|
|
)
appellant’s motion to reconsider our order of October 16,
1986. On December 1, 1986, appellant requested that this
court appoint counsel on her behe’’. Cause appearing, we
deny this request. Appellant has cited no legal authority
which would require this court to appoint counsel on her
behalf. See, e.g., In re marriage of McCue, 645 P. 2d 854
(Colo. Ct. App. 1982); Kiddie v. Kiddie, 563 p.2d 139
(Okla. 1977) (there is no constitutionally grounded right to
appointment of counsel in a divorce proceeding). In the
exercise of our discretion, we decline to appoint counsel to
represent appellant.
In our order of October 16, 1986, we ordered that
appellant’s foreign co-counsel, Martin Malinou, ‘‘shall not
be allowed to represent appellant in these matters unless
and until he associates Nevada counsel and is granted
permission to do so.’ On October 27, 1986, respondent
filed a motion requesting ‘‘recission’’ of Malinou’s
‘‘authority’’ to practice in this case. Attached to the
motion, respondent submitted three orders of the district
court documenting Malinou’s misconduct before that
court. Respondent requests that we sanction Malinou for
this misconduct. Cause appearing, we deny respondent’s
motion. Respondent’s motion to ‘‘rescind’’ Malinou’s
‘*authority”’ is moot. Malinou has no authority to practice
before this court. Malinou has neither associated Nevada
counsel nor requested permission to represent appellant
before this court. If Malinou requests permission to act as
appellant’s counsel, we will consider the documents submit-
ted by respondent in determining whether to grant such
permission. Further, we decline to sanction Malinou per-
sonally at this time for his conduct before the district court.
We note that the district court has already sanctioned
Malinou and has withdrawn the authorization to practice
before that court.
On October 6, 1986, appellant advised this court that she
had filed a petition for relief under Title 11 of the United
States Code in the United States Bankruptcy Court for the
District of Rhode Island on February 21, 1985. On March
19, 1985, the bankruptcy court issued a notice of automatic
stay pursuant to 11 U.S.C. § 362 (a). We infer, from
appellant’s filing of the notice of automatic stay and from
her failure to prosecute the instant appeals, that appellant
contends the automatic stay applies to these appeals. This
contention is incorrect.
Section 362 by its terms only stays proceedings against
the debtor. The statute does not address actions
brought by the debtor which would inure to the benefit
of the bankruptcy estate.
Assoc. of St. Croix Condo. Owners v. St. Croix Hotel, 682
F.2d 446, 448 (3d Cir. 1982) (emphasis in original). See also
In re Convention Masters, Inc., 46 B.R. 339 (Bankr. D.
Md. 1985) (automatic stay does not bar bankrupt party
from prosecuting pending actions in a court other than the
bankruptcy court). We therefore conclude that the
automatic stay does not apply to the instant appeals.
We note that appellant has failed to comply with our order
of September 4, 1986, issued in No. 16643, ordering her to
pay respondent $500.00 and to provide the clerk of this
court with proof of such payment. The automatic stay
entered by the federal bankruptcy court pursuant to 11
U.S.C .§ 362(a) does not apply to our order sanctioning
appellant. We sanctioned appellant for conduct which
occurred after she filed the bankruptcy petition. ‘‘Pro-
ceedings or claims arising postpetition are not subject to the
automatic stay.’’ Matter of M. Frenville Co., Inc., 744
F.2d 332, 335 (3rd Cir. 1984), cert. denied, 469 U.S. 1160
(1985) (citations omitted). Accordingly, appellant shall
have thirty (30) days from the date of this order within
E-3
Pre Te yee ls te
aaa > INCL at an ee Bel ar
which to make this payment and to provide the clerk of this
court with proof of such payment. Appellant’s failure to
pay this sum will result in the immediate dismissal of
Docket No. 16643 and Docket No. 17584.
Respondent has moved to dismiss appeal No. 16643,
appeal No. 17584, and a third appeal filed November 5,
1986, which has not yet been docketed in this court.
Respondent has also moved to strike portions of these
appeals and requested sanctions for the filing of duplicative
and vexatious appeals. Respondent contends that No.
16643 and No. 17584 should be dismissed because of
appellant’s many delays in prosecuting these appeals. In
No. 16643, the appeal is more than two years old, yet
appellant has still not filed an opening brief. In No. 17584,
the notice of appeal was filed on August 12, 1986; appellant
has still not filed the record on appeal. Appellant’s
procrastination is inexcusable. However, we note that
appellant is presently not represented by counsel and that
appellant did file a motion in this court requesting the
appointment of counsel. In addition, on October 6, 1986,
appellant filed the notice of automatic stay pursuant to 11
U.S.C.§ 362(a), apparently in the belief that the automatic
stay applied to these appeals.
Accordingly, we defer resolution of respondent’s motion
to dismiss appeals No. 16643 and No. 17584. Appellant
shall have thirty (30) days from the date of this order to
secure new Nevada counsel to represent her on these
appeals, and to so notify the clerk of this court. Counsel
shall have thirty (30) days thereafter within which to file the
opening brief in No. 16643. Appellant shall have thirty (30)
days from the date of this order within which to file the
record on appeal in No. 17584. Failure to retain counsel
and to file the opening brief and record on appeal as
ordered will result in the immediate dismissal of these
appeals.
E-4
We defer ruling on respondent’s motion to dismiss the
appeal filed on November 5, 1986, because that appeal has
not yet been docketed in this court, and there is no record
before this court. Additionally, respondent did not request
the clerk of this court to docket that appeal for the
purposes of filing his motion to dismiss. See NRAP 12(c).
In No. 16643, appellant appeals from the amended divorce
decree of April 26, 1983, and from a judgment of the
district court, entered on April 18, 1985, denying her
motion to set aside the divorce decree. In appeal No. 17584,
appellant again challenges the amended divorce decree of
April 26, 1983, and the judgment of April 18, 1985.
In No. 17584, appellant also appeals from a judgment of
the district court, entered July 16, 1986, and an amended
judgment of the district court, entered July 28, 1986,
granting costs to respondent, denying appellant’s motion to
set aside the divorce decree, and denying appellant’s
motion for temporary support, fees and allowances. On
November 5, 1986 appellant filed yet another notice of
appeal, again challenging the judgment of July 16, 1986,
and the amended judgment of July 28, 1986.
Respondent requests that we strike the duplicate por-
tions of these appeals, and that we sanction appellant for
filing untimely and duplicative notices of appeal. Cause
appearing, we grant respondent’s motion. We hereby
strike that portion of the notice of appeal No. 17584 which
purports to challenge the amended divorce decree of April
26, 1983, and the judgment of April 18, 1985, and that
portion of the notice of appeal filed November 5, 1986,
which purports to challenge the judgment of July 16,
1986, and the amended judgment of July 28, 1986.
Further, we sanction appellant $500.00 to reimburse
respondent for the costs incurred in bringing the motion to
strike and the motion for sanctions. Appellant shall have
E-5
thirty (30) days from the date of this order within which to
make this payment to respondent’s counsel and to provide
the clerk of this court with proof of such payment.
Appellant’s failure to pay this additional sum will also
result in the immediate dismissal of Docket No. 16643 and
Docket No. 17584
It is so ORDERED.
(signed) _, C.J.
Gunderson
(signed) _, J.
Steffen
(signed) _, J.
Young
(signed) mS
Springer
(signed) _, J.
Mowbray
‘Respondent additionally contends that sanctions are
warranted because the appeal of November 5, 1986, is
fraudulent, untimely, and frivolous. Respondent’s
‘*proof’’ of fraud is insufficient to justify the imposition
of additional sanctions. Since no record on appeal has
been filed, we are unable to determine whether the appeal
is untimely or frivolous. Accordingly, we decline to order
further sanctions at this time.
E-6
F-]
NEVADA SUPREME COURT RULES DECISION
FUNCTIONALLY EXCLUDED REVIEW OF MERITS
DIVORCE FROM SCOPE OR APPELLATE REVIEW
ENTERED SEPTEMBER 4, 1986
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
Order
This is an appeal from (1) a divorce decree and an
amended divorce decree; and (2) an order of the district
court denying appellant’s motion to set aside the divorce
decree and the amended decree. The original divorce decree
and the amended decree were entered on April 7, 1983, and
April 26, 1983, respectively. On May 22, 1985, appellant
filed a notice of appeal from the order of the district court
denying her motion to set aside the divorce decree. On July
9, 1985, appellant filed a second notice of appeal from the
divorce decree and the amended decree. Both notices of
appeal have been docketed in this court as case No. 16643.
Respondent has now moved to dismiss the portion of this
appeal that challenges the divorce decree and the amended
divorce decree, on the ground that the notice of appeal was
untimely filed under NRAP 4(a).
Appellant concedes that the notice of appeal was un-
timely as to the original divorce decree. She contends, how-
ever, that she was so mentally ill at the time of entry of the
F-1
—oe
amended decree that she did not have actual or constructive
notice of the amended decree until the time she filed a
motion to set aside the original decree and the amended
decree on August 22, 1984. She further contends that the
motion to set aside, brought pursuant to NRCP 60(b), was
actually a ‘‘motion for a new trial’’, i.e., one of the
motions listed in NRAP 4(a) which toll the running of the
thirty day period for filing a notice of appeal.
Appellant’s contentions are without merit. The district
court sent appellant a copy of the amended decree on April
29, 1983, more than two years before this appeal was filed.
In addition, on August 22, 1984, more than ten months
before filing the notice of appeal, appellant filed a motion
and a complaint seeking to vacate and set aside the original
divorce decree and the amended decree. Regardless of the
validity of appellant’s claim that she was too mentally ill to
be cognizant of the notice sent to her by the district court, it
is clear that she waived her right to further notice by her
subsequent conduct in challenging the divorce decrees. See
in re Herrmann, 100 Nev. 1, 25, 677 P.2d 594, 609 (1984).
Appellant’s motion to set aside, brought pursuant to
NRCP 60(b), did not toll the time for filing the notice of
appeal. See Smilanich v. Bonanza Air Lines, 72 Nev. 10,
291 P.2d 1053 (1956). Appellant did not file a motion for a
new trial under NRCP 59. Appellant’s contentions
relating to the time for filing such a motion or its effect on
the time for filing a notice of appeal are irrelevant in our
consideration of this appeal
We conclude, therefore, that appellant’s notice of
appeal filed on July 9, 1985, challenging the original
divorce decree and the amended divorce decree, was
untimely. Furthermore, the notice of appeal filed on May
22, 1985, may not be used to challenge these decrees. See
Westside Chtr. Serv. v. Gray Line Tours, 99 Nev. 456, 458,
F-2
664 P.2d 351, 352 (1983) (where notice of appeal was timely
only as to dismissal of 60(b) motion, and not as to the
underlying judgment, court would only consider propriety
of denial of motion).
As an alternative argument against dismissal, appellant
contends that her appeal may be premature because the
district court did not resolve all of her claims and did not
certify the order denying the motion to set aside as a final
order pursuant to NRCP 54(b). We note, however, that
appellant’s claims were made in two separate actions,
while NRCP 54(b) concerns claims made in a single action.
Thus, the district court was not required to certify its order
refusing to set aside the divorce decree as final pursuant to
NRCP 54(b). See In re Massachusetts Helicopter Airlines,
Inc., 469 F.2d 439 (1st Cir. 1972). Appellant’s appeal is
therefore not premature.
Accordingly, our consideration of this appeal shall be
limited to the notice of appeal filed on May 22, 1985, and
to the issue of the propriety of the district court’s denial of
appellant’s motion to set aside the divorce decrees.
Appellant shall have forty (40) days from the date of this
order within which to file an opening brief. Thereafter,
briefing shall proceed in accordance with NRAP 31.
Respondent has requested that we sanction appellant for
filing the appeal of July 9, 1985, from the original and the
amended divorce decrees, on the ground that the appeal is
grossly untimely and vexatious. Cause appearing, we grant
respondent’s request for sanctions. Because of appellant’s
actions, respondent has had to spend valuable time in
preparing the motion to dismiss and other responsive
papers. The staff of this court has also been required to
expend its limited resources in considering several motions
relating to the late notice of appeal. Accordingly, we sanc-
tion appellant $500.00 to reimburse respondent for the
costs incurred in bringing the motion to dismiss. Appellant
shall have thirty (30) days from the date of this order within
which to make this payment to respondent’s counsel and to
provide the clerk of this court with proof of such payment.
It is so ORDERED.
(signed) _, C.J.
Mowbray
(signed) *
Springer
(signed) ™ &
Gunderson
(signed) ry
Steffen
(signed) _, J.
Young
F4
G-1
NEVADA SUPREME COURT ORDER FOR
DEFERRED BRIEFING ON MERITS PENDING
RESOLUTION OF JULY 9, 1985 APPEAL NOTICE
ENTERED NOVEMBER 25, 1985
In the Supreme Court of the State of Nevada
No. 16643
SHERRI SPILLANE, Appellant,
v.
FRANK MORRISON SPILLANE, Respondent.
Order
This is an appeal from (1) a divorce decree and an
amended divorce decree; and (2) an order of the district
court denying a motion to set aside the divorce decree and
the amended divorce decree. Respondent has moved to
dismiss the appeal from the divorce decree and amended
decree, filed July 9, 1985, as untimely under NRAP 4(a).
Respondent has also moved for sanctions on the ground
that the appeal is untimely and vexatious. Appellant has
moved for an extension of time within which to respond to
respondent’s motions, up to and including the date on
which appellant’s opening brief is due.
The original divorce decree and the amended divorce
decree were entered on April 7, 1983 and April 26, 1983,
respectively. The notice of appeal was filed July 9, 1985.
NRAP 4a) requires that notice of an appeal must be filed
G-]
with the district court within thirty days of the date of
service of written notice of the entry of the judgment or
order appealed from. Appellant argues that the thirty day
time period for filing of an appeal has never run because
she was not served with written notice of the entry of the
orders. However, because appellant asked for the original
divorce decree as ordered, was present when the decree was
entered, and personally filed the document with the court
clerk, it does not appear that further notice was required to
trigger the limitations of NRAP 4(a). See In re Herrmann,
100 Nev. 1, 24, 677 P.2d 594, 608-609 (1984).
The district court sent appellant a copy of the amended
decree on April 29, 1983, more than two years before this
appeal was filed. In Herrmann, supra, this court stated that
‘it has frequently been held, in various contexts, that when
actual notice of a written kind is established, the purpose of
the rule is satisfied and no separate formal notice is
required.’’ 100 Nev. at 23, 677 P.2d at 608.
In addition, on August 22, 1984, more than ten months
before filing this appeal, appellant filed a motion and a
complaint seeking to vacate and set aside the original
divorce decree and the amended decree. In Herrmann,
supra, we noted there was substantial support for the
contention that a party could be held to have waived notice
by his subsequent conduct in challenging the decision later
appealed from. 100 Nev. at 25, 677 P.2d at 609. Thus it
appears that the appeal filed on July 9, 1985, should be
dismissed as untimely.
Appellant has moved to extend the time within which to
respond to the dismissal motion and the motion for sanc-
tions. The ground given for appellant’s motion is that
respondent’s motions go ‘‘to the merits of her right to
appeal.’’ However, respondent’s opposition to appellant’s
motion to extend time, filed October 7, 1985, states that
the motion to dismiss and the motion for sanctions are
G-2
wholly based on the procedural defect in the late filing of
the appeal. This court has previously indicated that
arguments going to the merits of an appeal are not properly
considered on a motion to dismiss. Taylor v. Barringer, 75
Nev. 409, 410, 344 P.2d 676 (1959). Thus, appellant’s
response to the dismissal motion and the motion for sanc-
tions need only address the untimeliness issue. No other
valid reason appears why appellant should be granted an
extension of time to respond to these motions.
Accordingly, appellant shall have ten (10) days from the
date of this order within which to show cause why the
appeal filed July 9, 1985, should not be dismissed as
untimely, and to respond to respondent’s motion for
sanctions.
It is so ORDERED. '
(signed) _, C.J.
Springer
' Appellant has also requested an extension of time within
which to file the opening brief. Cause appearing, we grant
this request. Briefing of the merits of this appeal shall be
deferred pending resolution of the motion to dismiss the
appeal filed July 9, 1985.
H-1
CONSOLIDATED JUDGEMENT OF THE EIGHTH
JUDICIAL DISTRICT COURT DENYING POST
TRIAL MOTION CHALLENGING AMENDED
DIVORCE DECREE
ENTERED APRIL 18, 1985
CASE NOS. D 53075 and A 232411
DEPARTMENT NO. XII
DOCKET
In The Eighth Judicial District Court of the State of Nevada
In and for the County of Clark
SHERRI SPILLANE,
Plaintiff,
Vv.
FRANK MORRISON SPILLANE,
Defendant.
SHERRI SPILLANE,
Plaintiff,
Vv
FRANK MORRISON SPILLANE,
Defendant.
H-1
Order Denying Motion to Set Aside
Decree of Divorce in Case No.
D53075 and Order Dismissing
Certain Causes of Action of
Plaintiff's Amended Complaint
in Case No. A232411
Case No. D 53075 and Case No. A 232411 having been
heretofore consolidated and matters having come on for
hearing in both cases on the 26th day of March, 1985, the
Court enters the following Order:
A. Case No. D 53075 having come on for hearing
pursuant to Plaintiff's Motion to Set Aside Decree of
Divorce, Plaintiff not present, but appearing by and
through her attorneys, TINGEY, BURRIS and
OVERLEY, and MARTIN MALINOU, ESQ., 334 Smith
Street, Providence, Rhode Island, admitted to practice in
this Court for purpose of this case; and Defendant not
present, but appearing by and through his attorneys,
THOMPSON & HARPER, LTD., the Court having
examined the pleadings and having heard arguments of
counsel and good cause appearing therefor,
IT IS HEREBY ORDERED that Plaintiff’s Motion to
Set Aside Decree of Divorce is hereby denied.
B. Case No. A 232411 having come on for hearing,
pursuant to Defendant’s Motion to Dismiss pursuant to
Nevada Rules of Civil Procedure, Rule 12(b), Plaintiff not
present, but appearing by and through her attorneys,
TINGEY, BURRIS and OVERLEY, AND MARTIN
MALINOU, ESQ., 334 Smith Street, Providence, Rhode
Island, admitted to practice in this Court for purpose of
this case; and Defendant not present, but appearing by and
through his attorneys, THOMPSON & HARPER, LTD.,
the Court having examined the pleadings and having heard
H-2
arguments of counsel and good cause appearing therefor,
IT IS HEREBY ORDERED THAT Defendant's Motion
to Dismiss Plaintiff's Amended Complaint filed on or
about January 31, 1985 is granted with prejudice as to
Causes of Action 2, 3 and 4 of Plaintiff's Amended
Complaint.
IT IS FURTHER ORDERED that Defendant’s Motion
to Dismiss Plaintiff's Amended Complaint is denied as to
Plaintiff's First Cause of Action.
IT IS FURTHER ORDERED that Defendant has twenty
(20) days to answer the remaining First Cause of Action as
set forth in Plaintiff's Amended Complaint.
DATED this 16 day of April, 1985.
Myron E. Leavitt /s/
District Judge
H-3
I-]
CONSOLIDATED DECISION OF THE EIGHTH
JUDICIAL DISTRICT COURT WITH FINDINGS OF
FACT AND CONCLUSIONS OF LAW IN
COMPANION CASE
DELIVERED JULY 16, 1986
District Court
Clark County, Nevada
CASE NOS. D53075 & A232411
DEPARTMENT XII
CIVIL DOCKET R
SHERRI SPILLANE,
Plaintiff,
v.
FRANK MORRISON SPILLANE,
Defendant.
Decision
This matter came on regularly for trial before the Court,
sitting without a jury, MARTIN MALINOU, ESQ., of
Providence, Rhode Island, appearing as attorney for the
Plaintiff and VERONICA BURRIS, ESQ., of the firm of
TINGEY & BURRIS, appearing as local counsel for
Plaintiff, and CHARLES E. THOMPSON, ESQ. and
DONALD J. GREEN, ESQ., of the firm of THOMPSON
& HARPER, LTD., appearing as attorneys for Defendant
and the Court having heard the testimony of witnesses
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examined the exhibits admitted into evidence, read the
briefs on the law submitted herein, listened to arguments
of counsel, and being fully advised in the premises, makes
the following Findings of Fact and Conclusions of Law
constituting the Decision of the Court.
Findings of Fact
The defendant, better known as MICKEY SPILLANE,
is one of the world’s greatest writers, having authored
several books with more than 100 million copies having
been sold throughout the world. His creation, MIKE
HAMMER, private detective, has been featured in several
movies and is the subject of a new television series
to begin in the fall, entitled The Return of Mike Hammer.
On November 6, 1964, at the age of 46, MICKEY and
SHERRI, who was 23 years old, were married in Malibu,
California. Shortly after the marriage, on November 23,
1964, SHERRI executed a release in which she gave up any
rights she may have ‘‘as the widow of MICKEY
SPILLANE, either as dower in his real estate or to any
personal property’’ which he owned or which he should
later become possessed.
The parties lived together only about one-half of the
time during the marriage. SHERRI performed in musical
comedies and accompanied MICKEY on world tours to
promote the sales of his books. She appeared on the covers
of several of MICKEY’s novels, including The Erection
Set where she appears in the nude. The Erection Set cover
was the subject of special articles in national publications,
Esquire and Penthouse.
In May, 1978, MICKEY entered into an agreement with
JAY BERNSTEIN to produce movies for television based
upon characters created by him. One of the conditions of
the agreement was that SHERRI be given a part in the first
movie. She didn’t receive the part, but was paid $5,000 to
act as a ‘‘technical advisor’’ for Margin for Murder. The
movie received good ratings and plans were made to
produce additional movies for television.
MICKEY left all of the production and financial details
to JAY BERNSTEIN, insisting only upon four conditions:
1) The story would take place in New York City;
2) Mike Hammer would have short hair;
3) Mike Hammer’s secretary would be a busty
brunette; and
4) Mike Hammer would carry a .45 caliber automatic
and not a ‘‘sissy’’ .38 caliber.
MICKEY left SHERRI and California in November,
1979, to live in Murrell’s Inlet, South Carolina. Shortly
after he left, an English writer and actor, MICHAEL
STANDING, became SHERRI’s lover and moved into her
apartment. He was still living with SHERRI in April 1983,
when she filed for divorce. During this period of three and
a half years, MICKEY, being unaware of the affair
between MICHAEL and SHERRI, faithfully sent her
$1,500 each month.
Meanwhile, JAY BERNSTEIN had managed to
persuade STACY KEACH to play the role of MIKE
HAMMER in a new made-for-television movie, Murder
Me, Murder You. SHERRI was aware of the planned
movie, having expressed an opinion that STACY KEACH
was a good actor and would be a better ‘‘Mike Hammer’’
than the actor who played the part in Margin for Murder.
In early 1983, MICHAEL was having difficulty with the
immigration authorities and one way he could remain in
this country was to marry an American citizen.
MICHAEL then began to pressure SHERRI to divorce
MICKEY and marry him. SHERRI consulted a lawyer,
MARYANN LaGUARDIA, for advice concerning her
property rights and procedures for obtaining a divorce.
After several telephone conversations the parties
reached an agreement concerning the divorce. By letter
dated March 23, 1983, SHERRI wrote to MICKEY:
“As we agreed over the telephone, I have sent a
notarized statement (enclosed) which clearly states
that I wil] not ask for anything. Either now or in
the future, except a year of support and continuing
medical insurance costs.”’
She urged him to “‘Please try and get the papers signed
and returned as soon as possible because I don’t want to
wait around in Las Vegas longer than I need.”’
The enclosed statement signed by SHERRI stated that
she abandoned ‘‘any claims either now or in the future to
any property which belongs to MICKEY SPILLANE”’ and
that the ‘‘term ‘property’ refers to all and any property
such as real estate, literary rights to novels...and any other
literary properties.’’ She excepted from the agreement the
literary property known as McGabe formerly known as The
Bodyguard by MICKEY SPILLANE, which MICKEY
previously had given to her.
By a statement dated March 23, 1983, MICKEY agreed
to ‘‘continue to support SHERRI SPILLANE...by
depositing a sum of $1,500.00 per month for a period of
one year’’ and that he would continue to pay ‘‘medical
insurance for SHERRI SPILLANE after our pending
divorce for as long as I am able or until SHERRI
SPILLANE agrees by mutual consent that she is able and
in a position to continue paying medical insurance by
herself.”’ The parties later agreed the support payment
would be one cash lump sum payment of $18,000.
SHERRI planned to travel to Las Vegas and arrange for
a ‘‘quick’’ divorce, staying for ten days after sending the
forms tc MICKEY and then returning to California. Her
complaint for divorce was filed March 24, 1983, and
MICKEY’s Answer in Proper Person was filed April 6,
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1983. In the Answer MICKEY agreed to provide SHERRI
with adequate medical insurance coverage and to pay her
the sum of $18,000 cash as a ‘‘lump sum, non-modifiable
alimony and property settlement agreement.”’
At her divorce hearing, SHERRI, appearing without an
attorney, testified that she had been a resident of Las
Vegas, Nevada for ‘‘about four months,”’ that when she
moved to Las Vegas it was her intention to make it her
home, and that it was her present intention, at that time,
to make Las Vegas her home. She further stated that the
distribution of the assets between herself and MICKEY
was ‘‘fair and equitable under the circumstances’’ of the
case. Her resident witness testified that she had seen
SHERRI several times every day present in Clark County,
prior to the filing of the complaint.
The statute of limitations for the prosecution of perjury
expired in April, 1986, just prior to the trial in this case.
The Decree of Divorce filed in the case stated that the
Defendant was to receive ‘‘an $18,000 cash settlement’’
and that Defendant was to ‘‘pay the medical expenses of
Plaintiff.’’ The difference between the Answer in Proper
Person and the Decree was called to the attention of the
former District Judge and he signed an Amended Decree
of Divorce on April 26, 1983, ordering MICKEY to pay
for the medical insurance of SHERRI.
The original Decree of Divorce was filed at 9:23 a.m. on
April 7, 1983. SHERRI was now free to marry MICHAEL
and obtained a marriage license at 9:43 that morning.
Later, the same day, SHERRI, now using the name
SELMA MALINOU, married MICHAEL.
MICKEY paid SHERRI the $18,000 agreed upon and
subsequently, at her request, sent an additional $2,000 in
lieu of paying any medical insurance premiums.
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On April 9, 1983, Murder Me, Murder You aired as the
‘*Movie of the Week.’’ It received high ratings and JAY
BERNSTEIN then convinced Columbia Broadcasting
System to accept a television series based on MICKEY
SPILLANE’S MIKE HAMMER. Prior to this time there
were no agreements to produce a television series and only
upon the personal assurances of STACY KEACH that he
would act in the series was the deal consummated.
MICKEY received $20,000 each as his share for both
Margin for Murder and Murder Me, Murder You. He was
to receive $3,500 per episode for the MIKE HAMMER
series.
Subsequently the star of the series, STACY KEACH,
was imprisoned in England and the series was cancelled in
midseason. After his release from custody, a new MIKE
HAMMER movie for television More Than Murder, was
produced and aired. Because of its ratings the series
Return of Mike Hammer will begin this fall.
MICKEY has remarried since the Divorce Decree
became final.
On August 22, 1984, more than sixteen months after the
Decree of Divorce SHERRI took legal action to set aside
the Decree. She filed a motion in the divorce case (D53075)
and filed an independent action (A232411).
This court granted a Motion to Dismiss the independent
action and allowed SHERRI to file an amended
complaint. The two cases were consolidated and subse-
quently the Second, Third and Fourth Causes of Action in
the independent action were dismissed. An order was
entered denying SHERRI‘s Motion to Set Aside the
Decree of Divorce. Both orders have been appealed to the
Nevada Supreme Court.
SHERRI claims that MICHAEL, by the use of duress,
coercion, intimidation, pressure and threats, compelled
her to act against her will in divorcing MICKEY. Further,
that MICKEY put pressures on her that she had a lack of
contractual capacity and thereby was prevented from exer-
cising her own will in the divorce action. She states that the
actions of both men caused her severe depression and
stress so that she was easily manipulated by both.
She also claims that MICKEY fraudulently concealed
community property assets from her and that she is en-
titled to a one-half community property interest in the fair
value of the names, MICKEY SPILLANE and MIKE
HAMMER, and a one-half interest in the profits received
by MICKEY for Murder Me, Murder You and More Than
Murder.
From the foregoing Findings of Fact, the Court makes
the following:
Conclusions of Law
The Divorce Action
CASE D53075
Nevada Rules of Civil Procedure 60(b) states that a
Motion for Relief from a Judgment due to fraud, whether
extrinsic or intrinsic must be made within six months after
the Judgment was entered.
The Decree of Divorce in this case was filed April 7,
1983, and the Amended Decree of Divorce was filed April
26, 1983. The Motion to Set Aside the Decree of Divorce
was filed August 22, 1984, well beyond the six-month
period.
NRCP 60(b) also provides that the rule ‘‘does not limit
the power of a court to entertain an independent action to
relieve a party from a Judgment...or to set aside a
Judgment for fraud upon the Court.”’
‘‘The purpose of this part of the rule is to afford relief
upon proof of extrinsic fraud, and the normal six-month
limitation of Rule 60(b) has no application.’’ Savage vs.
Saltzman, 88 Nev. 193.
**Relief from intrinsic fraud, under NRCP 60(b) must
be sought not later than six months after the Decree was
entered.’’ Savage vs. Saltzman, supra.
To accept a different rule ‘‘would be encouraging
endless litigation, in which nothing would ever be finally
determined.’’ Chamblin vs. Chamblin, 55 Nev. 146.
The Court has previously denied SHERRI’s Motion to
Set Aside the Divorce Decree.
The Independent Action
CASE A232411
District Courts have the inherent power to set aside
judgments procured by extrinsic fraud. Lauer vs. District
Court, 62 Nev. 78, Murphy vs. Murphy, 65 Nev. 264,
Colby vs. Colby, 78 Nev. 150 (and cases cited therein).
It is ‘‘not every fraud committed in the course of
judicial determination [that] will furnish ground for such
relief. The acts for which a judgment or decree may be set
aside or annulled have reference only to fraud which is
extrinsic or collateral to the matter tried by the Court, and
not to fraud in the matter on which the judgment was
rendered.’’ Confer vs. District Court, 49 Nev. 18.
The allegations of fraud must be pleaded with particu-
larity and supported by clear and convincing proof.
Garteiz vs. Garteiz, 70 Nev. 77, NRCP 9(b), Savage vs.
Saltzman, supra.
Under Nevada law in order to prevail, SHERRI must
prove by clear and convincing evidence that a fraud was
committed by MICKEY and that the fraud was extrinsic
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or collateral to the divorce proceeding. Gruber vs. Baker,
20 Nev. 453.
‘Extrinsic fraud has been held to exist when the un-
successful party is kept away from the Court by a false
promise of compromise, or such conduct as prevents a real
trial upon the issues involved, or any other act or omission
which procures the absence of the unsuccessful party at
trial. Further, it consists of fraud by the other party to the
suit which prevents the losing party either from knowing
about his rights or defenses, or from having a fair oppor-
tunity of presenting them upon the trial.’’ Murphy vs.
Murphy, supra; Colby vs. Colby, supra; and Savage vs.
Saltzman, supra.
‘*Fraud is extrinsic or collateral within the meaning of
the rule when it is one the effect of which prevents a party
from having a trial, or from presenting all of his case to
the court, or which operates, not upon the matters pertain-
ing to the judgment itself, but to the manner in which it is
procured.’’ Chamblin vs. Chamblin, supra; Mazour vs.
Mazour, 64 Nev. 245.
**A distinguishing feature as to when fraud will justify
the vacation of a decree is whether or not the wife has had
the opportunity of consulting counsel of her own
choosing, and the opportunity afforded to present the
matters complained of to independent counsel and to the
court, so that protection could be afforded.’’ Calvert vs.
Calvert, 61 Nev. 169; Mazour vs. Mazour, supra.
The legal test is whether ‘‘evidence of the coercion or
duress or the fraud could have been presented to the court
or to an attorney of the complainant’s own choosing
during the pendency of the action so that full examination
of the facts could be made and full protection given to the
rights of the parties...’ If so, then ‘‘equity will not
interfere but will leave the parties to the fraudulent tran-
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sactions whether they have placed themselves.’’ Mazour
vs. Mazour, supra.
MICKEY was separated from SHERRI for a period of
three and one-half years prior to the divorce and had no
personal knowledge of any stress or depression that she
may have been suffering at the time of the divorce. He
complied with her written and oral instructions and
cooperated so that SHERRI could obtain the divorce she
desired. He agreed to her terms and promptly carried out
his part of the bargain. He did not conceal from SHERRI
the new MIKE HAMMER series since he didn’t have any
personal knowledge prior to the divorce that the movie
Murder Me, Murder You would be so successful that as a
result the series would be produced.
Any duress, coercion, intimidation, pressures and
threats that MICHAEL may have placed on SHERRI can-
not be imputed to MICKEY, since MICKEY had no per-
sonal knowledge of such actions.
In any event, such alleged frauds are intrinsic in nature
and not extrinsic or collateral. Allegations of ‘‘lack of real
consent to the contract...lack of contractual capacity...
lack of consideration...and an actual prevention of the ex-
ercise by the Plaintiff of her own free will...’’ are examples
of intrinsic fraud and not sufficient to set aside a decree of
divorce. Mazour vs. Mazour, supra.
Allegations of ‘‘exertion of duress and coercion...
pressure and restraint...’’ that‘‘...compelled the appellant
to act against her will...’’ and ‘‘physical violence, threats,
and intimidation...’’ which forced the spouse‘‘...to con-
duct herself according to the desires of respondent and vir-
tually took away and destroyed any free agency on the
part of appellant...’’ will not meet the test for extrinsic
fraud. Calvert vs. Calvert, supra.
‘‘There were no false promises of compromise nor any
other acts or omissions which by design sought to
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prevent...’” SHERRI’’...from ascertaining her rights and
defenses or to deny [her] a reasonable opportunity to
present them at trial.’’ Aldabe vs. Aldabe, 84 Nev. 392.
The allegations of physical and mental abuse, coercion,
duress, threats, and intimidation in the cases cited above
were much stronger than those alleged in this case.
SHERRI consulted with an attorney as to her property
rights and the procedures for obtaining a divorce. She
could have retained an attorney to litigate her claims in the
divorce action. MICKEY did nothing to prevent her from
presenting her case before the Court. He acquiesced in her
every wish.
It has long been the law that he who comes into equity
must come with clean hands. SHERRI lived for three and
a half years with MICHAEL while accepting monthly
payments of $1,500 from MICKEY. She concealed her
affair with MICHAEL up to the time of divorce. SHERRI
may have committed perjury when she testified that it was
her intention to make Nevada her home (NRS 199.120).
She may have committed subordination of perjury by re-
questing CINDY DALESSIO to testify as her resident
witness and state to the court that she had seen SHERRI in
Clark County, Nevada, several times every day during the
six months prior to the divorce, which was an obvious
falsehood. SHERRI admitted to having extra marital
sexual affairs with other men during her marriage, justify-
ing the actions by claiming MICKEY had given her written
permission (Exhibit #21) to do so. Although the document
was written by MICKEY, he testified he didn’t remember
writing it or that if he did he must have been ‘‘smashed”’ at
the time.
Twenty minutes after the filing of the Divorce Decree
SHERRI took out a license to marry MICHAEL. The
Court will not pass judgment on morality, but such
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actions certainly are not those of a caring, faithful, loving
spouse.
SHERRI has failed to prove any fraud on the part of
MICKEY by clear and convincing evidence and her allega-
tions, even if proved, would be intrinsic in nature. She had
a fair opportunity to present her claims to the divorce
court and MICKEY did nothing to prevent her from
asserting her rights.
SHERRI is entitled to nothing by reason of her first
cause of action of her complaint.
Because of SHERRI’s financial condition and her
inability to pay the Court declines to award attorney’s fees
to MICKEY, but he is entitled to his costs.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED this 16th JULY, 1986.
(signed)
Myron E. Leavitt,
District Judge
Department XII
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J-1
CONSOLIDATED JUDGEMENT OF THE EIGHTH
JUDICIAL DISTRICT COURT AGAIN DENYING
POST TRIAL MOTION CHALLENGING AMENDED
DIVORCE DECREE AND DISMISSING COMPANION
CASE WITH $9,101.70 COSTS
ENTERED JULY 30, 1986
CASE NOS. DS3075 &A232411
DEPT NO. XII
DOCKET “R”
In the Eighth Judicial District Court of the State of Nevada
In and For the County of Clark
SHERRI SPILLANE,
Plaintiff,
Vv.
FRANK MORRISON SPILLANE,
Defendant.
Judgément
The trial of the above-captioned matter having come on
regularly for trial on July 7, 1986, and completed on July
11, 1986 before the Court, sitting without a jury,
MARTIN MALINOU, ESQ., of Providence, Rhode
Island, appearing as attorney for Plaintiff and
VERONICA BURRIS, ESQ., of the firm of TINGEY &
BURRIS, appearing as local counsel for Plaintiff, and
CHARLES E. THOMPSON, ESQ., and DONALD J.
J-1
GREEN, ESQ., of the firm of THOMPSON & HARPER,
LTD., appearing as attorneys for Defendant; the Court
having heard the testimony of witnesses, examined the
exhibits admitted into evidence, read the Briefs on the Law
submitted herein, listened to the arguments of counsel,
and being fully advised in the premises; and the Court
having made findings of fact and conclusions of law con-
stituting the Decision of the court filed on July 16, 1986 in
the Office of the Clerk of the Eighth Judicial District
Court of the State of Nevada, in and for the County of
Clark with all counsel of record having knowledge and
notice thereof;
IT IS THE JUDGMENT OF THE COURT that Plaintiff
SHERRI SPILLANE is entitled to nothing by reason of her
First Cause of Action of her Amended Complaint in Case
No. A23241]1;
IT IS THE JUDGMENT OF THE COURT THAT THE
Motion to Set Aside the Decree of Divorce filed on August
22, 1984 in Case No. D53075 was beyond the six (6) month
period required by Nevada Rule of Civil Procedure 60(b)
and is once again denied;
IT IS THE JUDGMENT OF 7®E COURT that De-
fendant FRANK MORRISON SPILLANE is entitled to
his costs actually incurred in this action in the amount of
Nine Thousand One Hundred One and 70/100 Dollars
($9,101.70).
IT IS THE JUDGMENT OF THE COURT that De-
fendant FRANK MORRISON SPILLANE’S request for
attorney’s fees in his Answer to Plaintiff's Amended
Complaint is denied.
DATED this 28th day of July, 1986.
Myron E. Leavitt /s/
District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.