In McCarroll, the trial court found, and we agreed, that the wife had a fair opportunity during the divorce litigation to litigate the fraud allegations.Summary of this case from Amie v. Amie
May 22, 1980 Rehearing denied July 8, 1980
Appeal from summary judgment; Second Judicial District Court, Washoe County; William N. Forman, Judge.
James W. Hardesty, of Reno, for Appellant.
Roger L. Wright and Robert J. Peyton, of Reno, for Respondent.
This action was commenced almost three years after a final decree of divorce had been entered approving an oral agreement for the division of community property. The purpose of the action is to have the former husband's retirement pension with the U.S. Forest Service declared a community asset and a portion of it awarded to the former wife. The oral agreement for division of community property did not include the pension and no mention was made of it during the divorce action. It is the present contention of the former wife that the former husband was guilty of fraudulent concealment of his retirement pension.
On the record presented, the district court found that the fraud, if any, was intrinsic since the former wife had a fair opportunity to present the claim she is now making to the divorce court. Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 (1962). Consequently, relief is barred by NRCP 60(b). Accordingly, summary judgment was entered for the former husband. We perceive no error.