DocketNumber: No. 4558
Judges: Badt, McNamee, Thompson
Filed Date: 2/22/1963
Status: Precedential
Modified Date: 11/12/2024
OPINION
By the Court,
This is an appeal by a wife from a judgment granting her husband a divorce.
The case was called for trial on June 12, 1962. The wife’s attorney moved the court for allowances in accordance with her said motion. The motion was denied except as to court costs and attorney fees, the court reserving its ruling thereon until the end of the trial. The pending motion for continuance also was denied. The wife’s counsel thereupon moved for dismissal of the action, and that motion was denied. When the wife’s counsel thereupon stated that he withdrew as attorney for the wife, the court stated that he “could not be allowed to withdraw.”
Two errors are assigned on this appeal:
1. The failure of the court to allow appellant traveling expenses.
2. The failure of the trial court to grant appellant’s motion for continuance.
A motion for continuance is addressed to the discretion of a trial court. Benson v. Benson, 66 Nev. 94, 204 P.2d 316. An allowance of traveling expenses is also within the trial court’s discretion. NRS 125.040. This is conceded by the appellant. Thus, we are concerned only with the question of whether the trial court abused its discretion in either instance.
The evidence discloses that the husband had a total gross income of $400 a month. The wife retained the house valued at $16,000 in which the parties had an equity of over $4,000, and also the furnishings therein valued at $5,000 to $6,000. In addition thereto she retained their business worth $12,500 in which their equity was $8,000. From this business she had an income of from $50 to $60 a week. There is no evidence that at the time of the trial the wife was employed, but it does appear that she was capable of working. From such evidence and from the delay in filing the motion we will not say that the lower court abused its discretion in refusing to grant her motion for such expenses.
Appellant had already been granted continuances totaling three months. Her motion for continuance which was denied was filed the evening before the trial, and was based on an illness of the daughter known several months before to exist. Under the circumstances, the trial court could properly believe that the last motion for continuance was made for the purpose of delay only.
The assignments being without merit, the judgment is affirmed.
Her attorney on this appeal did not represent ber in tbe court below.
We are not concerned here with the holding in Katleman v. Katleman, 74 Nev. 141, 325 P.2d 420, where the appeal was from the order denying allowances pendente lite, because here the appeal is from the filial judgment.