CUNNINGHAM VS. CUNNINGHAM (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

On the wife's motion for allowances to prosecute her appeal from the property provisions of a divorce decree entered in her favor on the ground of extreme cruelty, and on the husband's cross-motion to dismiss the appeal, heard together. The court denied the motion for allowances because the moving papers failed to establish that an appeal had been perfected in accordance with Section 11 of Chapter 32, Statutes 1937, p. 56 - there was no proof that a notice of appeal had been filed and served in apt time and an undertaking, or its statutory equivalent, deposited or filed in apt time. The court held it was without jurisdiction to order allowances until an appeal has been perfected, citing Lamb v. Lamb, 55 Nev. 437, 38 P.2d 659, and Hannah v. Hannah, 57 Nev. 239, 62 P.2d 696. The denial was without prejudice to a renewed motion within a reasonable time, and the court reserved ruling on the husband's motion to dismiss until after that time expired.

In plain language

This is an earlier ruling in the same divorce case as Cunningham v. Cunningham, 61 Nev. 93. The husband had sued for divorce, the wife cross-complained and was granted a divorce on the ground of extreme cruelty, and she wanted to appeal the parts of the decree dealing with property. Two motions came before the Nevada Supreme Court at once: the wife's motion for money (allowances) to fund her appeal, and the husband's motion to dismiss the appeal. The court denied the wife's motion for allowances because she had not shown her appeal was properly perfected - there was no proof that she had filed and served a notice of appeal and deposited the required bond (or its equivalent) in time. Until an appeal is perfected, the court held, it has no power to order allowances. The denial was without prejudice, meaning she could file a proper motion again within a reasonable time. The court reserved (put off) ruling on the husband's motion to dismiss the appeal until that time passed.