DRESPEL VS. DRESPEL (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

The defendant-wife appealed from an order denying her motion for a new trial (newly discovered evidence) and denying counsel fees and costs incident to that motion, in an action in which the plaintiff-husband was granted a divorce. On the new trial (Section 8876 N.C.L.), the court affirmed: the affidavit failed to show reasonable diligence to discover the evidence before trial, containing only general conclusions rather than particular facts (Pinschower v. Hanks, 18 Nev. 99; Robinson M. Co. v. Riepe, 37 Nev. 27); matters of public record were chargeable to the movant; and the proffered evidence was cumulative or of an impeaching character. The grant of a new trial rests largely in the trial court's discretion, and no abuse appeared. On allowances, the court reversed. The district court had refused any allowance because the parties had entered a stipulation fixing fees and because it did not appear counsel prosecuting the new-trial motion was unpaid. The Supreme Court held that a stipulation as to fees does not preclude the court from making further allowances for good cause, analogizing to the settled rule that the court is not bound by the parties' agreement as to alimony (Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131), and that the district court should have presumed, given the wife's sworn destitution, that no provision had been made to cover the requested allowances. The order denying allowances - except as to funds for transcribing the trial testimony - was reversed and remanded for reconsideration.

In plain language

After a husband won a divorce, the wife asked the trial court for two things: a new trial based on 'newly discovered evidence,' and an award of her attorney's fees and costs for making the new-trial motion. The court denied both, and she appealed. The Nevada Supreme Court split its decision. On the new trial, it affirmed the denial. To win a new trial for newly discovered evidence, the moving party must show she could not, with reasonable diligence, have found and produced the evidence at trial. The wife's affidavit gave only general conclusions of diligence with no specific facts, some of the evidence concerned public records she was charged with knowing about, and the rest was cumulative or merely impeaching. Granting a new trial is largely up to the trial judge, and there was no abuse of discretion. But on the fees and costs, the court reversed. The trial court had refused any allowance mainly because the parties had earlier signed a stipulation fixing fees, and because it did not appear the attorney handling the new-trial motion was unpaid. The Supreme Court held a fee stipulation does not prevent the court from making further allowances for good cause - just as a court is not bound by the parties' agreement about alimony - and that the court should have presumed the wife (who swore she was destitute) had not already provided the funds. It reversed the denial of allowances (except as to funds for transcribing the trial testimony) and sent that issue back to the trial court.