ALLIS VS. ALLIS (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

Thompson, J. An award of counsel fees to a wife in a divorce action lies within the trial court's discretion, but that discretion is abused when the order patently rests on the husband's ability to pay rather than the wife's need. The judicial inquiry is directed first to the wife's financial position; only after the court finds necessitous circumstances may it consider the husband's finances in fixing the amount. Because the fee order candidly rested on the disparity in the parties' wealth, it was reversed. The court reaffirmed Cranmer v. Cranmer, 79 Nev. 128, 379 P.2d 474 (1963), and Effinger v. Effinger, 48 Nev. 205, 228 P. 615 (1924). It also reiterated that an order granting preliminary fees is not appealable (NRCP 72(b)) and is not reviewable by certiorari; appellate review awaits a final fee order after completion of the case below, and any preliminary fee paid should be held for possible restitution.

In plain language

In this divorce case, the trial court ordered the husband to pay $18,500 toward his wife's attorney fees. The wife had between $25,000 and $40,000 in liquid assets, while the husband was worth about three-quarters of a million dollars. The judge made the award mainly because of the large gap between what each spouse was worth. The Nevada Supreme Court reversed. It held that a wife's attorney fees in a divorce turn on whether she actually needs help paying them, not on how wealthy the husband is. A court must first look only at the wife's own finances and decide whether she is in genuine need. Only after finding that she is may the court then consider the husband's wealth in setting the amount. Because the award here rested on the disparity in wealth rather than the wife's need, it was an abuse of discretion. The court also noted that an order for preliminary (temporary) fees is not appealable and cannot be reviewed until a final fee order is entered after the case ends.