CUNNINGHAM VS. CUNNINGHAM (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The wife appealed only from the property and alimony provisions of a divorce decree entered in her favor on the ground of extreme cruelty (Second Judicial District Court, Washoe County), and from the order denying a new trial, assigning abuse of discretion. She conceded, as she had to, that substantial evidence supported the trial court's findings, arguing only that the comparative value of the awards was so disproportionate in the husband's favor as to demonstrate unfairness. The court held the division of property and alimony award were well within the latitude of discretion conferred on the trial court by Section 9463 N.C.L., as amended by Stats. 1939, p. 18. Declining to review the evidence in detail, the court emphasized the trial court's superior position, by reason of seeing, hearing, and examining the witnesses, to weigh equitable matters, quoting Wittenberg v. Wittenberg, 56 Nev. 442, 55 P.2d 619, 623 ("much must be left to the wisdom and experience of the presiding judge, who sees and hears the parties and their witnesses, scrutinizes their testimony and studies their demeanor"); see also Albee v. Albee, 38 Nev. 191, 147 P. 452. Because abuse of discretion did not plainly appear, the awards, supported by substantial evidence, were sustained.

In plain language

A wife who had cross-complained in her husband's divorce case was granted the divorce on the ground of extreme cruelty. The trial court divided the couple's property and awarded her alimony of fifty dollars per month for ten months. She did not appeal the divorce itself. Instead, she appealed the alimony award and the real-estate award to her husband, arguing the judge had abused his discretion because the value of what the husband received was so much greater than what she received that it showed the division was unfair. The Nevada Supreme Court disagreed and affirmed. The wife did not claim there was no evidence supporting the trial court's findings - she could not have, because there was such evidence. Her only argument was that the split was so lopsided in the husband's favor that it was unfair on its face. The court held the property division and alimony were well within the wide discretion the divorce statute gives trial judges. It stressed that the trial judge, who saw and heard the witnesses, is far better positioned than an appellate court reading a cold record to weigh the equities. Because no abuse of discretion plainly appeared, the judgment and the order denying a new trial were affirmed.