ATKINS VS. ATKINS (CHILD SUPPORT)

Key holdings

Practitioner summary

Appeal from the child-support provision of a divorce decree (no motion for new trial below). The defendant physician contended the court lacked jurisdiction to award $100 per month for the child where the complaint prayed no such relief, the plaintiff testified she wished none, and the parties had agreed none would be included. Ducker, J., held the matter lay within the court's sound judicial discretion under section 24 of the marriage and divorce act (Rev. Laws 5840), which makes provision for children a necessary incident of divorce jurisdiction; the child's welfare is the paramount consideration and the parents' agreement is not binding on the court (collecting authorities including In re Morgan, 117 Mo. 249, In re Austin's Estate, 173 Mich. 47, and Nelson on Divorce and Separation). Mitchell v. Mitchell, 28 Nev. 110, 79 P. 50, was distinguished as a default case controlled by Civ. Prac. Act section 299 (Rev. Laws 5241); because an answer was filed here, the court could grant any relief consistent with the case made by the complaint and embraced within the issue. No abuse of discretion in amount: defendant earned $5,000 to $7,000 per annum, had contributed nothing, and plaintiff was without property or income. Judgment affirmed.

In plain language

A wife obtained a divorce and custody of the couple's only child. Her complaint said the husband, a physician living in Atlanta, Georgia, earned upwards of $7,000 a year, but she expressly asked for no alimony, testified she wanted nothing for the child's support (her parents were willing to help), and told the court she and her husband had agreed that no support provision would be made. The trial court nevertheless ordered the husband to pay $100 per month for the child's support, education, and maintenance until further order. The husband appealed, arguing the court had no jurisdiction to award child support that nobody requested and that the parties had agreed against. The Nevada Supreme Court affirmed. Nevada's divorce statute commands the court, in granting a divorce, to make such provision for the children as appears most expedient for their present comfort and future well-being. Children of divorcing parents are effectively wards of the court: their best interests are paramount, and the parents' agreements cannot tie the court's hands, because it is not the parents' rights that are being determined. The court distinguished an earlier case involving a default judgment; here the husband had answered, so the court could grant any relief consistent with the case made by the complaint. There was also no abuse of discretion in the amount: the husband earned $5,000 to $7,000 a year as a physician, had contributed nothing to the child's support, and the wife had no property or income and had to keep the child in Atlanta at her own expense for three months a year if the husband requested it.