HERRICK VS. HERRICK (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Motion by the appellant wife in the Nevada Supreme Court for an order requiring the respondent husband to pay a $500 attorney fee to enable her to prosecute her appeal from a Washoe County decree granting him a divorce. Ducker, J. Held: the court's power to order a respondent in a divorce case to pay the wife's attorney fee on appeal is established (Lake v. Lake, 16 Nev. 363 and 17 Nev. 230; Buehler v. Buehler, 38 Nev. 500), and extends to ordering payment for prosecution of the wife's appeal when she is the defeated party, since the object of the law - affording a wife without means the funds necessary to prosecute or defend suits of this nature - would otherwise be frustrated after an adverse decree. The husband's poverty is no ground for exemption from payment (Wallman v. Wallman, 48 Nev. 239) but must be taken into consideration in fixing the amount (citing Whitman v. Moran, 54 Nev. 276, on the duty to consider the husband's poverty in fixing suit money). On the competing affidavits (wife: property in excess of $20,000, income over $1,000 monthly, remarriage after judgment; husband: no income since January 1, 1927 except $2,500 in 1928, 170 Herrick Development Company shares pledged for debts exceeding $47,000), the court fixed $250 as reasonable and, counsel for the wife having agreed on oral argument to accept an assignment in lieu of a fee, ordered payment of $250 within 30 days or assignment of the husband's equity in the 170 shares.

In plain language

Lester Herrick won a divorce from his wife in Washoe County. She appealed, and while the appeal was pending she asked the Nevada Supreme Court to order her ex-husband to pay a $500 attorney fee so she could afford to prosecute the appeal. Her affidavit said his property exceeded $20,000 and his income exceeded $1,000 a month, and noted he had remarried right after the judgment. He responded that he had essentially no income since 1927 (except $2,500 earned in 1928), that his 170 shares in the Herrick Development Company were pledged to secure a debt over $47,000, and that his new wife, a schoolteacher, was supporting them both. The Supreme Court held it has the power to order a husband to pay the wife's attorney fee for an appeal in a divorce case even when the wife lost below - otherwise a wife without money could never get appellate review. The husband's claimed poverty does not excuse him from paying, but it is properly considered in setting the amount. Weighing his circumstances, the court set the fee at $250 rather than $500, and, because the wife's lawyers said they would accept it, gave the husband the alternative of assigning her his equity in the 170 shares of stock instead.