AFRIAT VS. AFRIAT (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

On the appellant wife's motion for allowances (alimony pendente lite, attorneys' fees, and costs) pending her divorce appeal, and the respondent's objections. Held: (1) the time to appeal from the order denying a new trial did not begin to run absent service of written notice of its entry (Smith v. Southern Pacific Co., 50 Nev. 377, 262 P. 935; New Trials and Appeals Act sec. 10(2)), so the appeal was timely. (2) A wife who sought separate maintenance but was awarded an absolute divorce is a party "aggrieved" and may appeal (Kondas v. Washoe County Bank, 50 Nev. 181, 254 P. 1080). (3) Acceptance of trial-court allowances that a reversal would not require her to refund was not a waiver of the right to appeal (Cunningham v. Cunningham, 60 Nev. 191, 102 P.2d 94; State v. Central Pacific R.R.). (4) Collaborating on the findings, and any statement of intent to appeal, did not clearly and unequivocally waive the required notice. (5) The court would not prejudge the appeal as frivolous on a motion for allowances. Allowances granted, geared to respondent's ability to pay: $50 per month alimony during the appeal, $150 attorneys' fees, $220 for the transcript, and $26.70 for the judgment roll.

In plain language

This decision resolves the wife's motion, made while her divorce appeal was pending, for the husband to pay her alimony, attorneys' fees, and appeal costs. The husband objected on many grounds - that the appeal was untimely, that she had "won" below and so was not aggrieved, that she had accepted benefits of the judgment, that she waived notice, and that the appeal was frivolous. The Nevada Supreme Court granted the allowances. Because no written notice of the order denying a new trial was ever served, the time to appeal never began to run, so the appeal was timely. A wife who prayed for separate maintenance but was instead granted an absolute divorce is an "aggrieved" party who may appeal. Accepting small trial-level allowances that she would not have to refund did not waive her right to appeal, and collaborating on the findings did not waive her right to notice. The court declined to prejudge the appeal as frivolous. It ordered the husband to pay $50 per month alimony during the appeal, $150 in attorneys' fees, and the costs of the transcript and judgment roll, geared to his ability to pay.