EFFINGER VS. EFFINGER (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Motion by the appellant wife for $2,500 in counsel fees to prosecute her appeal from a decree of divorce obtained by the respondent husband. Ducker, C.J., denied the motion: allowances to the wife rest on necessity to prevent a failure of justice and require a showing that she is destitute of means (Black v. Black, 47 Nev. 346, 221 P. 239; 2 Nelson on Divorce and Separation), and the appellant's own showing - roughly $900 in bank and trust income of about $8,000 per annum ($8,085.74 in 1916, $8,685.60 in 1918, $8,351.87 in 1919, $8,637.35 in 1921) against claimed debts of $4,000 and living expenses of $600 per month - revealed no such necessitous condition; the respondent's ability to pay is immaterial absent necessity (distinguishing Buehler v. Buehler, 38 Nev. 500, 151 P. 44, where the respondent wife was destitute). On the merits (opinion of October 7, 1925, 48 Nev. 209, 239 P. 801), the court affirmed the decree: expert testimony of the state asylum superintendent that appellant's impeaching witness was a pronounced morphine addict was properly admitted as bearing on her credibility (State v. Fong Loon, 29 Idaho 248, 158 P. 233); under Rev. Laws 5845 either party may have issues of fact tried to a jury, and findings so made are binding, not advisory; the special findings, adopted by the court, were supported by substantial evidence and entitled respondent to the decree.

In plain language

After a husband won a divorce in the trial court, the wife appealed and asked the Nevada Supreme Court to order him to pay $2,500 for her lawyers on the appeal. The court refused. Requiring a husband to fund his wife's litigation is based on necessity - preventing a failure of justice when the wife is destitute - and this wife was not destitute: she admitted having about $900 in the bank and an income from a trust estate normally around $8,000 a year. Even though she claimed heavy debts, $600 monthly living expenses, and litigation costs that had eaten into her income, the court found no such inroads on her estate as to leave her in need of the husband's help; she had assets on which to raise money. The affidavits also showed the parties were on roughly equal footing financially, but the court said the husband's ability to pay did not matter because the wife had not shown necessity. In a later opinion in the same case (October 7, 1925), the court affirmed the divorce itself. The wife had objected to testimony from the superintendent of the state mental hospital that a key witness of hers was a pronounced morphine addict, offered to undercut the witness's credibility; the court held that testimony properly admitted. It also held that where a statute gives divorce litigants the right to a jury trial, the jury's findings are binding rather than merely advisory, and the trial court had adopted the jury's findings in the husband's favor.