Engebretson v. Engebretson

OPINION

Motion to Dismiss Appeal

Per Curiam:

On January 24, 1956, on motion of plaintiff wife and after the taking of testimony and argument of counsel for both parties, the court below entered an “Order for Preliminary Allowances” of $300 preliminary counsel fees for the benefit of plaintiff and $100 per month for “her support and maintenance pending the outcome of the litigation”. The order further recited that it was without prejudice to the right of plaintiff to make further application for allowances for the same purposes. The defendant husband filed notice of appeal from this order and plaintiff has moved to dismiss the appeal upon the ground that the same is not an appealable order. Rule 72 (b) N.R.C.P.

Appellant concedes that for many years the rule of the nonappealability of such an order has been the law of this state. Harrison v. Harrison, 54 Nev. 369, 17 P.2d 693; Kapp v. Kapp, 31 Nev. 70, 99 P. 1077, 21 Ann.Cas. 599. He contends, however, that this rule was changed by the legislature in 1949 by its enactment of NCL 1943-49 Supp., sec. 9474.01 (now NRS 125.170, 125.270) reading as follows: “In divorce and separate maintenance actions, installment judgments for alimony and support shall not be subject to modification as to accrued installments, but only as to installments not accrued at the time a motion for modification is filed; provided, however, that the provisions of this act shall not preclude the parties from entering into a stipulation as to accrued installments prior to the time a motion for modification is filed.”

Appellant contends that the basis for the former rule' was that the orders from which appeals had been attempted could be modified on'application; that this was not the case in the present instance; that some 12 monthly installments of alimony had accrued since the order and that, under the 1949 statute, it was beyond the power of the district court to modify such award. Appellant’s conclusion does not logically follow. The fact still remains that the appeal was taken not from a judgment for accrued alimony but from the order of January 24, 1956 — an order for preliminary allowances, without prejudice to the right to make future application for further allowances and was in all respects interlocutory and prior to any proceedings on the merits or looking toward a final judgment. Such order was not appealable.

The appeal is dismissed with costs to respondent.