Ormachea v. Ormachea , 66 Nev. 67 ( 1949 )

ON MOTION FOR ALLOWANCES PENDING APPEAL OPINION Upon the appellant husband's appeal the respondent wife has moved this court for the allowance of an attorney fee in the sum of $5,000, and for support for herself and the four minor children whose custody was awarded to her by the decree in the sum of $500 per month. The motion was argued and submitted on affidavits and counter affidavits and by references to the files, papers and pleadings and evidence adduced in the trial of the case as the same appear in the bill of exceptions. The law as to the right and duty of this court to make allowances on behalf of the wife being well settled, counsel confined the oral argument to a discussion of the facts appearing in the affidavits and in the record and by which they felt the court should be governed in any order made in the premises. We shall mention only so much of the factual situation as would appear necessary for the purpose at hand.

The court found that the parties had intermarried in October 1930, and that there were seven children as the issue of said marriage; that the defendant had been guilty of extreme cruelty to the plaintiff for a period of several years up to the time of the separation of the parties, all without fault on the part of the plaintiff; that plaintiff owned an undivided one quarter interest in certain property known as the Kallenbach Ranch, and that all other property standing in the name of either or both of the parties was community property; that the plaintiff was entitled to have awarded to her the custody of the four younger minor children and that the three older minors over the age of fourteen should have the right to nominate and select his or her own guardian; that mutual rights of visitation should be allowed; that there should be allotted to the plaintiff the full title to the Kallenbach Ranch in Churchill County, Nevada, with certain livestock and equipment subject to the option of the defendant for a period of thirty days to purchase the same from plaintiff for $30,000; that there be allotted to plaintiff an additional $10,000 and an additional $70,000, which last-mentioned sum was payable in not less than equal annual installments over a period of seventeen years; that plaintiff should have her costs and disbursements, etc.; that she be allowed $35 per month per child for the children in her custody, which sums should come out of the $10,000 above mentioned; that the $70,000 item be secured by a lien on all of the property. Judgment and decree of divorce in accordance with the findings of fact and conclusions of law were duly entered on October 13, 1948, which judgment taxed the costs in the sum of $212.18.

In August 1948, the trial court had ordered appellant to pay respondent $500 a month. A controversy as to the exact construction, nature and extent of this order need not here be considered, although it appears that four of such $500 payments were made, the last being in November 1948. The case had been tried before Honorable Clark J. Guild, district judge, who made the findings and entered the judgment above referred to. On October 13, 1948, Honorable Frank McNamee, presiding in said court in place of Judge Guild, on application of the defendant made an "order fixing amount of undertaking staying execution on appeal," wherein such undertaking was fixed in the sum of $20,000, and further ordering: "Upon the filing and approval of such undertaking the execution of such judgment be and the same is hereby stayed, pending the final conclusion of the proceedings on said appeal."

Appellant's affidavit recites that she is without funds; that she is living at a hotel at Fallon, Nevada, with one of the minor children, and that there is an accrued and unpaid hotel bill in the sum of $465.41 for board, room and laundry; that $500 a month is reasonably required for the support of herself and the minor children awarded to her custody; that the properties of the parties as disclosed by the evidence in the trial have a value of in excess of $189,000; that board and room at the hotel for herself and the minor child presently living with her cost $150 per month, laundry $10 per month, clothing $20 per month, in addition to certain sundries; that she has no money to pay counsel fees on the appeal and that by reason of the order staying execution of the judgment is unable to borrow any; and that the defendant is financially able to pay the sums asked for.

Appellant's affidavit insists that the evidence in the case shows that shortly before plaintiff filed her complaint for divorce on October 1, 1947 she left the defendant's home taking with her the sum of approximately $3,600 and that this sum, together with the four $500 payments made respectively on July 9, September 20, October 4, and November 4, 1948, indicate that her allegations as to her destitute condition are not justified, especially in view of the fact that since about November 1948 only one of the minor children has continued to live with her and that the other children are living happily and contentedly with defendant at his ranch; that plaintiff is a well, strong and able-bodied woman in her early forties, capable of earning a good living for herself, but has made no effort to find employment and has continued to live in idleness at the hotel at Fallon; that his own resources have been materially diminished through loss of livestock and feeding expense because of the unprecedented storms and cold weather of the past winter and that further heavy losses are anticipated; that the present values of the property are considerably less than $150,000.

Expressions contained in the findings and in the arguments of counsel indicate that the marriage between the parties was found to be a common-law marriage. The oral arguments further indicate that the appeal on the merits will involve appellant's contention (despite the said minor children, the issue of said marriage) that there was no common-law marriage and that the trial court erroneously found that there was a common-law marriage; also that the entire property of the parties at the time of the divorce, with the exception of respondent's one fourth interest in the Kallenbach Ranch, comprised rents, issues, profits, increase, substitutions, etc., of appellant's original properties at the time of the marriage, including some 4,000 sheep and 100 cattle and that the court erroneously found the property to be the community property of the parties. The record on appeal comprises between 500 and 600 pages. Property awarded to the plaintiff aggregated some $110,000. Presentation of the points of law above indicated, as well probably as others of importance, will involve a careful preparation and presentation. The earnestness with which counsel presented their respective views at the oral argument of the present motion indicates their conscientious adherence to their respective contentions and the earnestness and ability with which the appeal on the merits will be presented. We think the facts sufficiently show the necessities of the respondent and the ability of the appellant to pay. The $3,600 taken by plaintiff at the time of filing her divorce was fully within the knowledge of the trial court at the time of the entry of its final judgment. These parties lived together for some seventeen years during which time seven children were born to the respondent and during which time she apparently lived upon the ranch property as the wife of a rancher and stockraiser. This connotes much to those familiar with such situations, although at this stage of the proceedings we have not read the record nor concerned ourselves with the merits of the appeal.

After due consideration¹ we have considered the following allowances to be proper and they are hereby ordered to be paid forthwith, namely, the payment by appellant of respondent's accrued hotel bill in the sum of $465.41, which shall be payable directly to Grand Hotel, Fallon, Nevada; the sum of $1,000 to respondent's attorneys as attorney fees on this appeal; the sum of $250 per month for the support of respondent and the minor children in her custody, commencing on or before ten days after the entry of this order and payable on the corresponding day on each month thereafter until the determination of this appeal on the merits, or the further order of this court.

Any determination as to whether such monthly payments shall be chargeable against the $10,000 item as allowed by the district court may abide the determination of the appeal on the merits.

The order and bond staying execution may otherwise remain in effect. Each party will pay his own costs on the present motion.

BADT and EATHER, JJ., concur.

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

¹ See McLaughlin v. McLaughlin, 48 Nev. 153, 228 P. 305,238 P. 402, 240 P. 1115; Cunningham v. Cunningham, 60 Nev. 191, 192,102 P.2d 94, 105 P.2d 398; Wallman v. Wallman, 48 Nev. 239,229 P. 1, 35 A.L.R. 1096; Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83,119 P.2d 883; Dirks v. Dirks, 61 Nev. 267, 125 P.2d 305; etc.