CRANMER VS. CRANMER (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

McNamee, J. A showing of the wife's necessitous circumstances is a prerequisite to an award of suit money or attorney fees in a divorce action (Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110 (1937)); and, as recognized in Thorne v. Thorne, 74 Nev. 211, 326 P.2d 729 (1958), such fees historically were allowed only for services to be performed in the future. The 1961 amendment to NRS 125.150 - permitting a reasonable attorney fee to either party whether or not a motion for suit money was filed during the pendency of the action - did not eliminate the necessitous-circumstances requirement; as confirmed by the title of the amending act (1961 Stats., ch. 244), it merely permits an award even though prior application was not made and the services already had been performed. Awarding the wife $11,000 in fees without any showing of necessitous circumstances, where her assets ($147,151) approached the husband's ($192,353), was error. Judgment modified by striking the fee award; affirmed as modified.

In plain language

In this divorce, the trial court awarded the wife $11,000 toward her attorney fees, along with alimony and child support. The husband appealed only the attorney-fee award. The couple had no community property; each kept substantial separate property. The wife's assets were about $147,000 and the husband's about $192,000. The Nevada Supreme Court held the fee award was error because there was no showing that the wife was in necessitous circumstances - genuine need being a prerequisite to awarding attorney fees or suit money in a divorce. The wife argued that a 1961 amendment to the alimony-and-fees statute removed the need requirement, but the court disagreed. It held the amendment only allowed fees to be awarded even when no earlier request for suit money had been made and the legal services had already been performed; it did not eliminate the requirement that the wife show necessitous circumstances. The court struck the $11,000 fee and otherwise affirmed the judgment.