FENKELL VS. FENKELL (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The husband challenged financial awards in a divorce decree: child support of $125 per month, tuition allowances for the wife (lipreading school and beauty college), lump-sum alimony, and attorney's fees. The trial transcript was not in the record; the appellant filed only an abbreviated NRCP 75(c),(e),(n) statement of the evidence that did not purport to contain all the evidence. Record on appeal: Facts recited only in the briefs will not supply a deficiency in the record, Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969); and a judgment will not be disturbed as unsupported by the evidence where the statement fails to affirmatively show it contains all the material evidence. Where findings are within the issues raised by the pleadings and there is no record of testimony, the appellate court presumes the evidence was sufficient to justify the findings. Quinn v. Quinn, 27 Nev. 156, 74 P. 5 (1903). Child support: The exercise of discretion in awarding child support is not disturbed absent a clear abuse, and the paramount consideration is the best interest and welfare of the child. Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962). Under NRS 125.140 and Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927), the court may grant relief consistent with the counterclaim even absent a minute detailing of need. The trial judge's reliance on his own knowledge of the cost of raising his children, while unusual, was not error, as NRS 125.140(2) requires him to call on his knowledge, training, and experience to determine what is 'necessary or proper.' Alimony: Lump-sum alimony awards made contingent on the wife pursuing training to improve her hearing and earning capacity were approved; the contingency did not detract from the award and disclosed no abuse of discretion. Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968). Attorney's fees: The court held it was error to award attorney's fees because the wife neither requested them in her pleadings nor was there evidence to support the award. NRS 125.150(2) authorizes a reasonable attorney fee at the conclusion of a divorce trial even without an NRS 125.140 application, but only if attorney's fees are in issue under the pleadings; a party must first place fees in issue and then show necessitous circumstances. The judgment was affirmed except for the attorney fee award, which was reversed and remanded to amend the judgment.

In plain language

In this divorce, the trial court granted the wife child support, several education-related allowances (tuition to attend a lipreading school to overcome her hearing defect and tuition for a beauty college), lump-sum alimony, and attorney fees. The husband appealed those financial awards. A major obstacle for his appeal was that there was no trial transcript in the record; he filed only an abbreviated 'statement of the evidence,' which did not claim to contain all the evidence presented at trial. The Nevada Supreme Court affirmed almost everything. It applied long-standing rules that facts asserted in briefs cannot fill gaps in the record, and that when the appellant's statement does not affirmatively show it contains all the material evidence, the court will not disturb the judgment as unsupported - it presumes the evidence justified the trial court's findings. On child support, the court held the $125-per-month award was well within the trial court's discretion. Even though the wife had not spelled out her detailed need, the court could award support consistent with her counterclaim, because the guiding principle is the best interest and welfare of the child (citing Atkins v. Atkins, where support was properly awarded even when neither parent asked for it). The court also addressed an unusual point: the trial judge had said he based the support amount on his own knowledge of what it cost to raise his own children. The court found this unusual but not error, because a judge must draw on his knowledge, training, and experience to decide what is 'necessary or proper.' On the lump-sum alimony, the court approved the awards even though they were made contingent on the wife pursuing training to improve her hearing and her earning ability; the contingency did not detract from the award, and there was no abuse of discretion. The one thing the court reversed was the attorney fee award. The wife never requested attorney fees in her pleadings, and there was no evidence in the record to support them. Under Nevada law (NRS 125.150(2)), a court may award attorney fees in a divorce even without a prior application, but only if fees are put in issue by the pleadings, and the party must also show necessitous circumstances. Because neither requirement was met, the court reversed the fee award and remanded with instructions to remove it; the rest of the judgment was affirmed.