BENSON VS. BENSON (DIVORCE)

Key holdings

Practitioner summary

The plaintiff husband was granted a divorce in the Second Judicial District Court, Washoe County, on the ground of three years' separation without cohabitation (then codified at sec. 9467.06, N.C.L. 1931-1941 Supp.). The defendant wife appealed and, by stipulation, her motion for a $500 counsel fee on appeal was heard with the appeal. The court reaffirmed that allowances on appeal operate prospectively only (Cunningham v. Cunningham; Fleming v. Fleming), and, since the motion was filed after the record and briefs were complete, awarded $150 for the remaining services of preparing and presenting argument, considering the parties' finances (husband earning about $55 per week and paying $70 per month support). On the merits, the court held the denial of a continuance was within the trial court's discretion under Neven v. Neven and Berger v. Mantle: the withdrawal of the wife's Reno counsel was at her own request, and her engagement of new counsel the day before trial was due to her own negligence. It further held, extending George v. George, Herrick v. Herrick, and Lagemann v. Lagemann, that the pendency of Connecticut divorce litigation during the major portion of the separation did not bar a three-years'-separation divorce, since even an actual separate-maintenance judgment does not; the controlling question is whether there is any reason to believe the parties could resume living together to the benefit of themselves and society. The husband's approximately six months of naval service during a five-year separation was likewise no ground for denial. Affirmed.

In plain language

A husband obtained a divorce in Washoe County on the ground that he and his wife had lived separate and apart for three years. The wife appealed and also asked the Nevada Supreme Court to order the husband to pay $500 for her lawyer's work on the appeal. The wife had caused her own predicament at trial: after her original lawyers withdrew at her request, she waited until the day before trial to hire new counsel, then asked for a continuance, which the trial court denied. The supreme court held that was not an abuse of discretion, because the last-minute need for new counsel was entirely the product of her own negligence and lack of diligence. On the merits, the court held that the fact that divorce litigation had been pending between the parties in Connecticut during most of their five-plus years of separation did not prevent a Nevada divorce for three years' separation - just as an actual decree of separate maintenance does not - and that the husband's roughly six months of Navy service during the separation was no reason to deny the divorce. Because a motion for allowances operates only prospectively, and the only work remaining when the wife filed hers was preparing and arguing the appeal, the court allowed a reduced attorney fee of $150 rather than the $500 requested. The judgment was affirmed.