State Ex Rel. Ormsby v. District Court of Second Judicial District ( 1929 )

The respondent's position is that the petitioner fails to state a cause of action and fails to show that the court abused his discretion in making the allowance for railroad fare. Section 5443 of the Rev. Laws of Nevada, 1912, provides: "That the court may, in its discretion, require the husband to pay such sums as may be necessary to enable the defendant to defend such suit." The words "as may be necessary" are the determining words in the statute as it relates to this case.

This court has decided in the case of Wallman v. Wallman,48 Nev. 235, that: "The poverty of a husband is no defense to the application for allowances, where the action for divorce is brought by him," and cites many cases supporting that authority of the law. The same language is used in 19 C.J. at page 216, with numerous cases cited thereunder.

The plaintiff's "utter impecuniosity" might be a defense if it appeared from the petition that the defendant has sufficient means to pay her own expenses without disturbing the corpus of her estate. The petition, however, fails to make any such allegation. The law is that temporary alimony and allowances will not be denied because the wife possesses a separate estate, when the income therefrom is not sufficient for her support, and she need not resort to the corpus of her estate before calling upon that of the husband. 19 C.J. 215.

In the Colorado case of Cairns v. Cairns, 68 P. 233, that court said: "When a husband desires the luxury of a divorce from his wife, he should be compelled to pay the expenses of his wife pending the litigation, and, in cases where the wife is a nonresident of the state, if she desires to come to the State of Colorado to make a defense, she should be given an opportunity to do so, and the courts should require the plaintiff to deposit in court a sum sufficient to pay the expenses of the wife from her home to the State of Colorado." Whatever the custom may have been or now is, if orders for railroad fare are not based upon a positive law, that is an express grant of the right, the courts are without authority and their orders are void and vain. 15 C.J. 730. Divorce actions in Nevada, as in the United States generally, are wholly statutory. Worthington v. District Court,37 Nev. 230. There is no inherent, inherited or customary power in our courts to grant divorces, nor to exercise any ancillary or auxiliary powers pertaining to them, such as the allowance of alimony, trial and appeal costs, and the like. Worthington v. District Court, 37 Nev. 231; Phillips v. Phillips, 42 Nev. 460; Effinger v. Effinger, 48 Nev. 209. Whatever rights in these respects the courts of Nevada have are based solely upon and limited by the statutes of the state. Worthington v. District Court, supra. "The court cannot read into the statute something beyond the manifest intention of the legislature gathered from its language." Tiedemann v. Tiedemann, 36 Nev. 502; Ex Parte Pittman, 31 Nev. 43. The Nevada statute, sec. 5443, Rev. Laws, does not, in terms or otherwise, authorize an allowance of railroad fare to a nonresident defendant in a divorce action. If our statute does not in terms require the corporeal attendance of a party defendant, our courts have no right to import into our said law nor interpolate therein or engraft thereon such a provision and upon it base an order for the transportation of a defendant from a distant point. Tiedemann v. Tiedemann, supra.

Petitioner further contends that the trial court had no legal right to stay the action until the railroad fare was paid or provided. The statute under consideration provides that the court "may enforce all orders made in this behalf as provided by section 24 of this act." Section 24 (sec. 5840, Rev. Laws, vol. 2, p. 1702) reads that "all such orders may be enforced and made effectual by attachment, commitment and requiring security for obedience thereto or by other means, according to the usages of courts, and to the circumstances of the case." This court has ruled that the enforcement of interlocutory orders for payment of money in divorce actions by execution does not appear to be according to the usages of courts. Kapp v. District Court, 32 Nev. 264. It must be noted that the section intends and calls for affirmative action on the part of the courts to enforce their orders, while staying proceedings involves the idea of negation.

OPINION Upon the verified petition of Emmet E. Ormsby, a writ of mandamus issued out of this court commanding the respondent court and the judge thereof to proceed to hear and determine the divorce action of Emmet E. Ormsby, plaintiff, against Mary Hill Ormsby, defendant, pending therein, or that in default thereof the respondents show cause why they had not done so on the date specified in the writ.

The respondents, in due time, interposed a general demurrer to the petition for the writ, the validity or invalidity of which depends upon the following facts: The petitioner sued his wife for a divorce on the grounds of cruelty and desertion. The marital domicile of the parties was in the State of New York, where process was served upon the defendant wife. She appeared in the action, and, by motion, asked that the plaintiff be required to pay counsel fees and that he be required to pay her railroad fare to enable her to defend the action. After a hearing of the motion, an order was made requiring the plaintiff to pay into court $150 counsel fees and to pay to the defendant $250 railroad fare. The plaintiff was subsequently cited to show cause why he had not complied with said order. Upon the hearing of the order to show cause, his excuse for not complying with the order was that he was financially unable to do so, being a day laborer, working as a janitor, and that the defendant wife was regularly employed as a saleslady and was able to pay her own expenses.

The court renewed its order, and further ordered that the proceeding be stayed until the plaintiff had complied with the order to pay said counsel fees and to pay the defendant her railroad fare of $250 to and from the place of trial.

The petitioner makes no complaint of the order requiring him to pay the counsel fee of $150, but insists that the court exceeded its jurisdiction and abused its discretion in requiring him to pay the defendant's railroad fare, or any sum whatever for that purpose.

1. Under our statute (section 5843), which permits the court or judge in a divorce suit, in its discretion, to require the husband to pay such sums as may be necessary to enable the wife to carry on or defend the suit, we are of opinion that the wife, being a nonresident of the state, and desiring to come to Nevada in response to the summons served upon her in New York to defend the suit, her railroad fare to and from the place of trial was a proper item to require the husband to pay to enable the wife to defend the suit. Smiley v. Smiley, 136 Wash. 241, 239 P. 551; Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233, 93 Am. St. Rep. 55.

2. The practice of staying or suspending the proceeding in a divorce suit until the husband becomes of sufficient ability to furnish his wife means to defend the suit was approved and applied in Wallman v. Wallman, 48 Nev. 239, 229 P. 1, 35 A.L.R. 1096.

The demurrer to the petition for the writ is sustained, and this proceeding is dismissed.

ON PETITION FOR REHEARING May 14, 1929.