Caye v. Caye , 66 Nev. 78 ( 1949 )

ON MOTION FOR COSTS AND ATTORNEY FEES ON APPEAL OPINION 1. The lower court granted the plaintiff husband a decree of divorce on the ground of three years' separation of the parties as against the wife's defense and against her cross-complaint for a decree of separate maintenance. She has appealed and has filed her record on appeal herein and now asks this court for an allowance to her of an attorney fee of $500, cost of undertaking on appeal in the sum of $10, transcript in the sum of $201.60, and other record on appeal in the sum of $54.90. The undertaking on appeal has already been secured by the appellant wife and she has been able to file herein the transcript and other record. Accordingly no allowance may be made for such items. Cunningham v. Cunningham, 60 Nev. 191,200, 102 P.2d 94, 105 P.2d 398; Afriat v. Afriat, 61 Nev. 321,328, 117 P.2d 83, 119 P.2d 883.

2. The law as to the granting of allowances on appeal is well settled in this state and need not be discussed.¹ The cases cited in the footnote and others in this state cover a variety of situations, and include cases in which the unsuccessful husband in the court below was the appellant as well as those in which the unsuccessful wife appealed.

In the instant case the wife resided in New York and the trial court allowed her $242.75 travel expense, $20 expense enroute to Reno, $280 for four weeks living expense at Reno, a preliminary attorney fee of $150, and an additional attorney fee of $350, court costs in the sum of $10, $50 for her return expense to New York, and permanent alimony in the sum of $60 per week. This alimony has been paid to date. The items noted were allowed for the defense of the action in the district court, which court denied appellant's motion for further allowances to perfect her appeal.

Appellant's affidavit supporting her motion shows that the decree was made September 18, 1948, and motion for new trial was denied October 28, 1948. Appellant perfected her appeal November 9, 1948, and filed her record on appeal herein January 26, 1949. In addition to the $60 weekly alimony being paid by respondent, appellant earns $40 a week, which gives her an aggregate income of something over $400 a month. She alleges that she is without suitable clothes and has been compelled to borrow money for living expenses and is indebted in the sum of $600, which she has been unable to repay; that respondent is well able to defray her expense of appeal; that she has no money to pay her attorney.

Respondent's affidavit recites that he is employed by the city engineer's office at Reno and that his take home pay after deductions is $225 per month and that to augment his income he works at night as a bartender on Friday and Saturday nights, for which he receives additional income of $73.75 per month, making his aggregate income from all sources $298.75 per month, and that he has no other source of income or other property; that he formerly owned certain stocks and bonds which he was compelled to sell whose proceeds were used in part to comply with orders of allowances made by the district court; that he had a $690 balance of such proceeds which, however, are now under attachment by appellant in a separate cause of action. The oral argument indicated that this action was for recovery of unpaid balances due under a prior agreement entered into by the parties.

Both parties to the proceeding made reference to the transcript on appeal, a material part of which is devoted to an examination of a stock interest which appellant claimed to be owned by respondent in Caye Construction Company, a corporation of $3,000,000 assets and possessing at various recent times a working capital of $1,000,000. Respondent's affidavit recites that he has no interest in this corporation. It is apparent, however, that during a considerable portion of the marital life of the parties they lived in a comparative affluence on part of the earnings of this corporation, the majority of whose stock was owned by respondent's father.

Respondent contends that appellant's appeal is prosecuted in spite and for the purpose of harassing respondent; that there is a presumption of the validity of the judgment and of the proper exercise by the trial court of its discretion in the granting of a divorce on the grounds of three years' separation without cohabitation, and that in consideration of the appellant's alleged superior financial position, no sums whatsoever should be allowed.

The learned district judge in announcing his decision said:

"I am compelled to do something in this case that I think all judges in this State refrain from doing except in extraordinary cases. The defendant in this case rests on her complaint for the charges alleged therein and asks for separate maintenance.

"During the many years of my practice, and the few years that I have acted as judge, I have learned that a separate maintenance decree never settles anything, and while the plaintiff and the defendant are the paramount individuals involved in this matter, society should have a voice, and even so far as the plaintiff and defendant are concerned they are apparently not fully conversant with the future prospects. I think a decree of separate maintenance would lead the plaintiff to complete degradation. A decree of separate maintenance in favor of the defendant would prevent her in the near or any future time until the decree was set aside from finding another home for herself where the happiness which she has not had may be found. At the present time I think I can appreciate the feeling of the defendant in her prayer for relief, but it would be a menace to both of the parties as well as a serious menace to good society. For that reason, I feel constrained to render a divorce and the Court will decree a divorce to plaintiff on the ground of three years separation, and the Court will direct that plaintiff pay to defendant for her support and maintenance the sum of Sixty Dollars a week during her lifetime or until she shall remarry, and the Court feels that the plaintiff should pay the costs of this action."

"* * * (to the plaintiff) This Court is still in session, Mr. Caye, and the Court couldn't help but observe your smirking countenance at the Court's decision. I have nothing to do with your future life but if your future life is going to be what your parents probably anticipate, there is going to be quite a change in your moral conduct. I am frank to say that if your wife had asked for a decree of divorce I would have given it to her on nearly any grounds in her complaint. The exhibits that you were responsible for having come into this Court disclose that your conduct toward your wife has been reprehensible. Outwardly, it may have met the military requirement but otherwise it was reprehensible. I wouldn't have said that but your smirking smile when you looked up indicated to me that you had the same contempt for this Court that you have had for your marital obligations."

3. The exhibits referred to by the court were numerous love letters to respondent by another woman, and the "reprehensible conduct" referred to by the court had apparent reference to the respondent's frank admissions that he had fallen in love with another woman and desired a divorce. It is further indicated that appellant contends that the period of separation relied upon by respondent for his cause of action was caused solely by his services in the armed forces, a situation beyond the control of either of the parties and one which is contended not to be within the contemplation of the statute. Under these circumstances we cannot say that the appeal is not taken in good faith.

It is ordered that respondent pay to appellant's attorney the sum of $150, and appellant's motion is granted pro tanto. Respondent requests that the attachment of the sum of $690 hereinabove referred to be ordered released by this court to such extent as to permit him to pay the attorney fee out of such attached fund, but it is evident that the jurisdiction of this court has not been properly invoked for the purpose of interfering in any way in the attachment suit. The $60 weekly alimony payments being made under the judgment of the district court are in no way affected by this order. The court will feel free to make other and additional orders in its disposition of the appeal on the merits. The appeal will stand in abeyance until payment by respondent of the attorney fee herein ordered, unless the appellant shall voluntarily elect to proceed despite any failure of compliance. Each party will pay its own costs on this motion.

BADT, and EATHER, JJ., concur.

HORSEY, C.J., did not participate in the foregoing.

¹ Lake v. Lake, 16 Nev. 363; Buehler v. Buehler, 38 Nev. 500,151 P. 44; Hannah v. Hannah, 57 Nev. 239, 62 P.2d 696; Wallman v. Wallman, 48 Nev. 239, 229 P. 1, 35 A.L.R. 1096; Herrick v. Herrick, 54 Nev. 323, 15 P.2d 681; Jeffers v. Jeffers, 55 Nev. 69,25 P.2d 556; Lamb v. Lamb, 55 Nev. 437, 38 P.2d 659; Cunningham v. Cunningham, 60 Nev. 191, 192, 102 P.2d 94,105 P.2d 398; Dirks v. Dirks, 61 Nev. 267, 125 P.2d 305; McLaughlin v. McLaughlin, 48 Nev. 153, 228 P. 305, 238 P. 402, 240 P. 1115; Ormachea v. Ormachea, 66 Nev. 67, 203 P.2d 614.