BURR VS. BURR (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The Court (Gunderson, J.) affirmed a divorce decree challenged by both spouses. After a November 1977 decree terminated the marriage but reserved community property and visitation, a June 1978 'final' decree distributed the community property, valued the house at $59,000 (wife's equity $22,000), ordered the husband to provide the child's health insurance, and directed each party to bear his or her own attorney's fees. First, the wife's post-trial evidence (via motion for new trial) that the house had increased in value to approximately $70,000 was untimely; the claim 'might have been discovered and proffered, prior to the court's decision, by a motion to reopen the case for additional evidence.' See NRCP 59(a)(4). Second, an award or denial of attorney's fees in divorce proceedings lies within the sound discretion of the trial judge and, absent abuse, will not be disturbed on appeal. Sogge v. Sogge, 94 Nev. 88, 575 P.2d 590 (1978). Cases requiring a statement of reasons for denying fees were decided under NRS 18.010, not NRS 125.150. Cf. Jones v. Jones, 86 Nev. 879, 478 P.2d 148 (1970); Lyon v. Walker Boudwin Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972). The order that each party bear his or her own fees and costs was affirmed. Third, the trial court could modify the November decree to include additional provisions for the care and maintenance of the minor child; the judge may make further orders relating to the care and support of a minor child while the action is pending. NRS 125.140(2). The Court found no abuse of discretion. The husband's motion for fees under NRAP 38 and 39 was denied because the appeal was neither frivolous nor a misuse of the appellate process.

In plain language

The Burrs divorced in two steps: the trial court entered a decree ending the marriage in November 1977 but reserved (put off) decisions about the community property and visitation. In June 1978 it entered a 'final' decree that divided the property, valued the couple's house at $59,000 with the wife's equity at $22,000, ordered the husband to provide health insurance for their child, and told each spouse to pay their own attorney's fees. The wife, Carolyn, appealed two things: being told to pay her own attorney's fees, and the house's value. The husband, Clarence, appealed the requirement that he carry health insurance for the child. The Nevada Supreme Court rejected all of these challenges and affirmed. On the house value, Carolyn tried, in a motion for a new trial, to introduce new evidence that the house was actually worth about $70,000. The court said this was too late - she could have brought that evidence forward before the decision by asking to reopen the case. On attorney's fees, the court explained that whether to award fees in a divorce is left to the trial judge's discretion and will not be second-guessed without a showing of abuse, and that the cases Carolyn cited requiring the judge to explain a fee denial came from a different statute that did not apply. On Clarence's complaint, the court held that a trial judge is allowed to make further orders about the care and support of a minor child while the case is still pending, so adding the health-insurance requirement was proper. The court also denied Clarence's request for fees for the appeal, finding the appeal was not frivolous.