KORBEL VS. KORBEL (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Per Curiam (Springer, C.J., Mowbray, Steffen, Gunderson, JJ., and Zenoff, Sr. J., concurring). The husband appealed only the portion of a post-decree order awarding the wife $2,500 in attorney's fees, $2,000 of which was for defending a prior appeal dismissed six months earlier. Reaffirming that, absent statute or agreement, attorney's fees are not recoverable (Consumers League of Nevada v. Southwest Gas Corp., 94 Nev. 153, 576 P.2d 737 (1978)), the court rejected each statutory basis the wife advanced. NRS 125.040(1) authorizes support and cost of suit during the pendency of the divorce action to enable a party to carry on or defend that action and has no application to an appeal. NRS 125.150(3) permits a reasonable attorney's fee to a party to a divorce action where fees are in issue under the pleadings, but could not support an award made six months after this court dismissed the appeal. NRS 125.180 authorizes fees only where a party is in default of money owed under a divorce decree. Finding no authority to award attorney's fees for a previously dismissed appeal, the court reversed and remanded for modification of the award. The wife's request for fees on the instant appeal, premised on frivolousness, was denied.

In plain language

Richard and Angelina Korbel divorced in 1980 and had three children. Their divorce decree incorporated a property settlement agreement that set the child support Richard would pay. Over the next few years custody of the children shifted back and forth and the parties fought repeatedly in court about support. In one of those earlier fights, Richard appealed a ruling; that appeal was dismissed in April 1983. Months later, the trial court denied a motion by Richard to modify the decree, ordered him to keep paying support and related expenses under the settlement agreement, and also ordered him to pay Angelina $2,500 in attorney's fees - $2,000 of which was specifically for defending that earlier, already-dismissed appeal. Richard appealed only the part of the order that made him pay attorney's fees for the prior appeal. The Nevada Supreme Court agreed with Richard and reversed the fee award. The general rule is that attorney's fees can only be awarded if a statute or an agreement allows it. Angelina pointed to three Nevada statutes, but the court found none of them applied. One statute covers fees needed to prosecute or defend the divorce case itself while it is pending - not an appeal. A second allows fees to a party in a divorce action when fees are put at issue in the pleadings, but it could not justify a fee awarded six months after the appeal had already been dismissed. The third only allows fees when a party is behind on money owed under a divorce decree. Because no law authorized fees for an appeal that had been over for six months, the court sent the case back to remove that part of the award.