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.

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