FULLER VS. FULLER (DIVORCE)

Key holdings

Practitioner summary

The plaintiff-husband sued for divorce and failed to obtain one; the decree of divorce was instead granted to the defendant-wife (appellant) on the ground of extreme cruelty. She appealed from portions of the decree and from the order denying a new trial, and moved in the supreme court for allowances pendente lite of $150 per month support, $50 for preparation of the record on appeal, and $300 for attorney's fees. Her affidavit established near-total lack of means (approximately $200 and a small home mortgaged for over $400), no employment history or training, seriously impaired health including a recent major operation, and the husband's ability to pay (salaried at $360 per month, approximately $3,600 annually). The husband filed no counter-affidavit, contenting himself with a transcript of the district judge's remarks; the court therefore deemed the wife's alleged facts established and found allowances necessary and the husband's ability to pay proven. Exercising equitable discretion, the court reduced the requested support: it ordered continuation of the lower court's $25 per month maintenance and $15 per month mortgage payments and added $50 per month during the pendency of the appeal, allowed the full $50 for record preparation, and reduced the attorney's fee to $150.

In plain language

In a divorce case, the husband sued the wife for divorce but failed to get one; instead, the court granted the divorce to the wife on the ground of extreme cruelty. She appealed parts of the decree and the order denying her a new trial. She then asked the Nevada Supreme Court to order the husband to pay her, while the appeal was pending, $150 per month for support, $50 to prepare the appeal record, and $300 for her attorney. Her sworn statement showed she had almost nothing - about $200 and a small, mortgaged home - had never been employed and was not trained for work, was in very poor health, and had just undergone a major operation. The husband, who filed no opposing affidavit, earned about $3,600 a year working for a railroad. Because he did not contest her sworn facts, the court accepted them as true and found allowances were necessary and that he could pay. The court granted reduced amounts: it kept the trial court's existing $25 per month support and $15 per month mortgage payments in place, added $50 per month, allowed the full $50 for the record, and cut the attorney's fee to $150.