FLEMING VS. FLEMING (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

A 1933 divorce decree awarded custody of the minor child per the parents' agreement, reserving jurisdiction over custody. On the mother's 1935 motion, the court granted her exclusive custody and, sua sponte, ordered the father to reimburse her expenses and attorney's fees incurred in the modification, reserving jurisdiction as to fees. On the father's motion, the court struck that paragraph for lack of notice but added a provision permitting the mother to renew her application for past expenses and fees on statutory notice. The father appealed only that added provision. The mother had never actually applied for allowances, and a stipulation established the father's post-decree inheritance had made him far wealthier (approximately $200,000) than the mother (approximately $200 per month income). The court held: (1) a divorce suit remains pending for some purposes, including modification of custody, even after the decree, and the trial court has continuing jurisdiction to modify custody where the child's welfare is involved (Lamborn v. Lamborn, 190 Cal. 794, 214 P. 862; Spratt v. Spratt); (2) on a petition to modify a divorce decree as to custody, the trial court may, under proper conditions, require the former husband to pay reasonable suit money and attorney's fees (Bradstreet v. Bradstreet; Gifford v. Gifford). Nevertheless, the challenged provision was unauthorized because: the record did not show the wife was in necessitous circumstances (necessity is a prerequisite to allowances of suit money or fees - Black v. Black, 47 Nev. 346; Effinger v. Effinger, 48 Nev. 205); the proposed allowances were for past, not prospective, expenses and services (Dixon v. Dixon; and see Wilde v. Wilde, 2 Nev. 306); allowances are ordinarily made only upon application (Buehler v. Buehler, 38 Nev. 500); and no application was made, nor was any showing made that the child's welfare would be adversely affected. The challenged part of the order was reversed.

In plain language

A 1933 divorce decree gave custody of the couple's young son according to the parents' agreement, and the court kept the power to change custody later. In 1935 the mother asked for exclusive custody. After a contested hearing, the court in early 1936 gave her exclusive custody, and on its own initiative added a paragraph ordering the father to reimburse the mother's expenses and attorney's fees for bringing the custody motion. The father moved to strike that paragraph. The court struck it (because it had provided no notice for the father to contest the fees), but added language saying the mother could renew her request for expenses and fees if she gave proper notice. The father appealed that added language. Notably, the mother never actually applied for fees, and by that time the father had inherited a large sum, making him far wealthier than she was. The Nevada Supreme Court reversed the challenged part of the order. It confirmed two general points in the mother's favor: a divorce case stays 'pending' for some purposes, so courts keep continuing power to modify custody after the decree; and on a custody-modification request a court can, in the right circumstances, make a former husband pay reasonable suit money and attorney's fees. But the court held this particular provision was unauthorized because the mother had not shown she was in needy circumstances (financial need is a prerequisite), the proposed allowances were for past rather than future expenses, no application for fees was ever actually made, and nothing showed the child's welfare would suffer without the allowances.