Effinger v. Effinger , 48 Nev. 205 ( 1924 )

ON MOTION FOR COUNSEL FEES OPINION This is a motion made by appellant for counsel fees, on an appeal taken by her from a decree of divorce obtained by respondent.

1. In her motion and notice thereof she asks that respondent be required to pay $2,500 as her necessary and reasonable counsel fees. In support of her motion she filed two affidavits, and respondent has filed his affidavit in opposition thereto, all of which were read and submitted on the hearing of the motion. From a careful consideration of the affidavits for and against the motion, we are persuaded that no such necessity exists as to call for the exercise of our discretion in requiring respondent to pay to appellant the sum of $2,500, or any sum, for her counsel fees on this appeal.

In the case of Black v. Black, recently decided in this court, we said that the rule requiring the husband to pay the wife sufficient to enable her to maintain herself and meet the expenses of her suit or defense is based on necessity to prevent a failure of justice, and will not be required unless it appears that the wife is destitute of the means to be employed for such purposes. Black v. Black, 47 Nev. 346, 221 P. 239. On this subject Mr. Nelson, in his work on Divorce and Separation, cited in the foregoing case, says:

"The ecclesiastic courts seemed to have allowed temporary alimony almost as a matter of course, without much inquiry as to the wife's circumstances. But as this relief is only granted on the ground of necessity, it is incumbent upon the wife to show that the necessity exists. Especially is this true at the present time when married women may acquire and possess real and personal property in their own right. It is error to grant alimony without such proof, as there is no presumption that she has no property. To grant temporary alimony without proof of the wife's needs is an abuse of discretion. The fact that the wife is destitute of means to carry on her suit and to support herself during its pendency is as essential as any other fact to authorize the court to award temporary alimony. This is not a mere matter of discretion, but the settled principle of equity." 2 Nelson on Divorce and Separation, — ; Collins v. Collins, 80 N.Y. 1.

Such is the great weight of authority.

Appellant admits that she has $900 more or less in bank, and that she has an income from a trust estate which normally amounts to $8,000 per annum, and it appears from respondent's affidavit that she testified on the trial of the case that this income for the year 1916 amounted to $8,085.74; for the year 1918, $8,685,60; for the year 1919, $8,351.87; for the year 1921, $8,637.35. She alleges that she is indebted in the sum of $4,000 to various persons and that her ordinary and necessary living expenses amount to $600 per month, which will be greatly increased, owing to the fact that on the advice of her physician it will be necessary for her to leave her place of residence in the city of New York and temporarily, at least, to reside in a warmer climate. She alleges that she has paid $625 towards obtaining a transcript of the record on appeal in this case and for filing the appeal in the clerk's office of this court; that she has no income or property other than the income from the trust estate, and that the whole thereof is necessary to meet her expense of living and to pay the heavy indebtedness incurred by her in the defense of the action; that she has received no moneys to meet such expense from the respondent, by order of court or otherwise, and that the expense of the defense of said litigation in the district court, and incidental costs and disbursements incurred and paid in connection with obtaining numerous depositions therein, and the expense of her residence in Reno, apartment rent, living expenses, service of maid, etc., during the time she resided in Reno, covering a period of a year or thereabouts, were substantially in excess of her then current income, so that her income is still affected and depleted by having to be used to meet the expenses incurred upon the trial.

2. In her second affidavit she sets out an itemized statement of expenses incurred since making the first affidavit, by reason of an accident to her foot amounting in the aggregate to $1,015.15, part of which was incurred in New York City, and the balance in London and Paris. From this showing it appears that she has expended more than a year's income from her private estate. But the showing is not entirely satisfactory as to her actual need, which is the basis of her right to a contribution from the respondent. It is indefinite as to what amount, if any, her expenses will be increased by a change of residence into a warmer climate, which change, we may note in passing, has not been made, so far as appears from her last affidavit.

3. Again, $600 per month may be a fair estimate of her ordinary expenses of living, and necessary also according to the mode of living to which she has been accustomed from her situation in life. But we regard it as rather high, considered from the standpoint of that necessity contemplated by law entitling a party to support and maintenance pending divorce proceedings, especially in view of the fact that she has no one dependent upon her for support, so far as is shown. But be this as it may, appellant has an income of not less than $8,000 per annum, and, while this may have been exhausted for a current year or more by her living expenses and the expenses of litigation, we are of the opinion that the showing does not reveal any such inroads upon her estate as to place her in need of help from the respondent to pay her counsel fees in the prosecution of this appeal, within the rule announced by this court in Black v. Black, supra. She has assets upon which to raise money to conduct her case. In Buehler v. Buehler, 38 Nev. 500, 151 P. 44, the court allowed the respondent a reasonable sum as an attorney's fee for her defense on appeal, but it appeared in that case that the appellant was a man of considerable means. And, as stated by the court, it also appeared that respondent was without means of support, had no assets upon which to raise money to conduct her case on appeal, and had no way of earning her living. In other words, it appeared that respondent was destitute of means to employ an attorney.

Appellant alleged that respondent is a man of wealth, owning and holding in his own name U.S. Liberty Bonds to the amount of $200,000, or thereabouts, and real estate in Charlottsville, Virginia, of the value of $12,000 or $15,000; that his father is worth $1,000,000, and upwards, and that respondent can, at any time, by applying to his father, obtain whatever funds he may need, with hardly any limit to the amount. Respondent, in his affidavit denies these allegations as to his resources and alleges that he has an annual income of $8,931; that he has no property other than said income and $1,677.07 in bank, and owes $1,200; that he was compelled to sell a two-thirds interest in property at Staunton, Virginia, to help defray the expenses of the trial in the lower court; that the business in which he has been engaged has proved unprofitable. He alleges that his father is not worth $1,000,000 or upwards, or any other sum in excess of $300,000; that he has no call upon his father for financial assistance, and that his father renders him no financial assistance whatsoever; and that the father is an elderly man with a wife and two daughters, partially dependent upon him.

From the opposing affidavits it appears that the parties are about on an equal footing as to yearly income, with no other sources of revenue, and both equally burdened with the expenses of litigation. But the ability of the respondent to pay her counsel fees is immaterial, as the appellant has shown no such necessitous condition as warrants the granting of her motion.

It is therefore denied.

ON THE MERITS October 7, 1925. 239 P. 801.