ENGEBRETSON VS. ENGEBRETSON (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

By the Court, McNamee, J. On the husband's appeal from the portion of a divorce judgment awarding $2,150 in accumulated pendente lite alimony under a prior $100-per-month order, the court affirmed. (An earlier appeal had been dismissed as premature, Engebretson v. Engebretson, 73 Nev. 19, 307 P.2d 115 (1957).) NRS 125.040 permits the court in its discretion to require the husband to pay sums necessary for the wife's support during the suit. Rejecting the husband's argument that temporary alimony requires the wife's necessitous circumstances, the court held the statute is not limited to cases where the wife is destitute; temporary alimony "will not be denied because the wife possesses a separate estate where the income therefrom is not sufficient for her support, and she need not resort to the corpus of her estate before calling on that of her husband" (27 C.J.S. sec. 208). The court explained that its prior decisions requiring necessitous circumstances (e.g., Black v. Black, 47 Nev. 346, 221 P. 239 (1923)) concerned suit money and attorney fees, not temporary alimony, and that the Black statement on maintenance was dictum. Because the wife had insufficient income for her support while the husband controlled the income-producing community property, the award was a proper exercise of discretion.

In plain language

The husband appealed the part of a divorce judgment that ordered him to pay $2,150 in accumulated temporary alimony (support during the case), which had built up under an earlier order requiring $100 a month. (An earlier attempt to appeal had been dismissed as too early.) The evidence was largely undisputed. The wife had her own separate property: stock worth over $2,200 (with $120 a year in income), a small bank account, an interest in a garage plus a drawing credit she could not yet access, and an unencumbered $10,000 house that produced no income. The husband, meanwhile, controlled the family ranch, which was his only source of income and held salable hay. Nevada law (NRS 125.040) lets a court require the husband to pay what is necessary for the wife's support while the divorce case is pending. The husband argued that temporary alimony depends on the wife being in genuine need, and that this wife - with her separate property - was not needy. The Nevada Supreme Court disagreed. The statute is not limited to cases where the wife is destitute; it allows support when fairness calls for it. The court adopted the widely followed rule that temporary alimony will not be denied just because the wife owns a separate estate, if the income from that estate is not enough to support her - and she does not have to spend down (or borrow against) the property itself before turning to her husband. The court explained that its earlier decisions requiring proof of "necessitous circumstances" were about attorney fees and suit money, not temporary alimony. Because the wife had no income sufficient for her support while the husband controlled the income-producing community property, the award was a proper exercise of the trial court's discretion.