JEFFERS VS. JEFFERS (DIVORCE)

Key holdings

Practitioner summary

On the wife's appeal from a divorce decree, the court entertained her motion for an allowance of attorney's fees, a filing fee, and costs on appeal, submitted without oral argument. The court reaffirmed that the poverty of the husband is no defense against the wife's right to obtain from him the means necessary to prosecute her appeal in a divorce action, citing Herrick v. Herrick, 54 Nev. 323, 15 P. (2d) 681; such poverty is, however, a fact for consideration in fixing the amount. Weighing the competing affidavits - the wife alleging $80 per month income and the husband's ability to earn in excess of $750 per month plus possession of unspecified community property, against the husband's averment of no property, indebtedness of $3,500 to his employer, and commission-only income insufficient to cover his drawing account - the court characterized the wife's earning allegation as optimistic and her community-property averment as indefinite and denied. It fixed a reasonable attorney's fee at $200 and directed payment of the $25 filing fee, denying the application as to further costs for want of any showing.

In plain language

After a husband won a divorce against his wife in the Clark County district court, the wife appealed. Because she said she had no money to pursue the appeal, she asked the Nevada Supreme Court to order the husband to pay her a $1,000 attorney fee plus filing fees and costs so she could go forward. The wife's sworn statement said her only income was $80 a month, that the husband could earn more than $750 a month as a salesman, and that he held community property she could not describe. The husband's sworn statement said he owned nothing, owed his employer $3,500, was paid only on commissions, and had been running at a loss. The court held that a husband's poverty is no defense to the wife's right to get from him the money she needs to prosecute her appeal in a divorce case, though his finances do bear on how much to award. It viewed the wife's claim that he earned over $750 a month as overly optimistic - a salesman earning more than $9,000 a year in the depression would be a genius - and her claim about community property as too vague and denied. The court awarded a $200 attorney fee and $25 filing fee, and denied further costs for lack of any showing.