BLACK VS. BLACK (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

On respondent wife's motion in the supreme court for a $250 counsel-fee allowance to defend appellant husband's appeal from her Washoe County divorce decree, the court reaffirmed its power to order payment of attorney fees on appeal (Lake v. Lake, 17 Nev. 238, 30 Pac. 878; Buehler v. Buehler, 38 Nev. 500, 151 Pac. 44) - a power appellant did not contest - but exercised its discretion against the allowance on the comparative financial showing. Appellant's affidavit established a $225 monthly federal salary as his sole income, $50 monthly support paid for the two minor children, necessary personal expenses consuming the balance, no property, and exhausted life-insurance borrowing; respondent's own showing established self-support since the 1917 separation, $100 monthly from her father, and a demonstrated paternal ability and willingness to fund her litigation (Reno residency, counsel, and expenses through decree, with no cost order sought below). Quoting 2 Nelson, Divorce and Separation 803, 805, the court held the husband's obligation to fund the wife's suit or defense rests on necessity to prevent a failure of justice and will not be enforced unless the wife is destitute of means from any source; her averment that assistance would burden her father was a mere conclusion absent any averment he was unable or unwilling. Motion denied.

In plain language

A wife won a divorce from her husband in the Washoe County district court, and the husband appealed. While the appeal was pending, the wife asked the Nevada Supreme Court to order the husband to pay $250 so she could pay her attorneys to defend the appeal. She filed an affidavit saying she had no means and depended on her father; the husband answered with his own affidavit and excerpts of the trial testimony. The supreme court refused the request. It found the husband had no property and lived entirely on his $225 monthly salary as an investigator in the Anti-Trust Division of the Department of Justice in New York, out of which he was already paying $50 a month for the couple's two minor children and had borrowed all he could on his life insurance to defend the suit. The wife, by contrast, had been self-supporting since the 1917 separation, was receiving $100 a month from her father as his housekeeper, and her father - who owned a $20,000 home in Washington and drew a railroad pension - had shown he was able and willing to finance her litigation, having already paid for her six-month stay in Reno and her lawyers. The court explained that fees are awarded out of necessity to prevent a failure of justice, not automatically, and that granting the order here might force the husband to abandon his appeal. The motion was denied.