LAKE VS. LAKE (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

On appellant wife's motion in the supreme court for an order directing respondent husband to pay the costs, expenses, and counsel fees (not exceeding $5,000) of her appeal from the property portion of the divorce decree and from the order denying a new trial of the property issues, respondent objected for want of jurisdiction: no valid appeal, and any allowance would be original rather than appellate jurisdiction under Const. art. VI, sec. 4. Leonard, C. J., overruled the objections; Belknap, J., concurred in the judgment while declining to construe section 1407. Construing Comp. L. 1392 (notice of appeal from a judgment 'or some specific part thereof') with Comp. L. 1400, the court held an appeal lies from a specific part of a final judgment; a divorce decree resolving divorce, custody, and property presents separable determinations, and the wife could appeal the property disposition alone (Lake v. Lake, 16 Nev. 216, distinguished; Story v. New York & Harlem R. Co., 6 N.Y. 89). On the jurisdictional objection, the court reaffirmed Lake v. Lake, 16 Nev. 363: jurisdiction in divorce cases carries by implication the incidental power to allow counsel fees, and that implied power is necessary to the complete exercise of appellate jurisdiction (Marbury v. Madison, 1 Cranch 137, and Field v. The People, 2 Scam. 83, discussed; 2 Bishop, Marriage and Divorce sec. 393). The court rejected Reilly v. Reilly's construction of the analogous California statute, holding that Comp. L. 1407's clause allowing the trial court to proceed 'upon any other matter included in the action' after appeal refers only to matters incident to the district court and does not empower it to order payment of counsel fees and costs for proceedings in the supreme court. Objections to hearing the motion overruled.

In plain language

Jane Lake had sued for divorce and for division of property she claimed was community property. The district court granted her the divorce and $150 per month alimony, but held the disputed property was her husband's separate property. She appealed from the property portion of the judgment and from the denial of her motion for a new trial on the property issues, and - swearing she was absolutely without means or credit - asked the Nevada Supreme Court to order her husband to pay her counsel fees for the appeal, up to $5,000. The husband's counsel agreed to cover the court costs and printing, but objected that the supreme court had no jurisdiction to order attorney fees, arguing there was no valid appeal and that such an order would be an exercise of original rather than appellate jurisdiction. The supreme court overruled the objections. It held that a party may appeal from a specific part of a final judgment - Jane could appeal the property ruling against her without disturbing the divorce and custody rulings in her favor - so the appeal was valid. It further held that although no statute authorizes counsel-fee allowances in the supreme court, the power is implied as incidental and necessary to the complete exercise of the court's appellate jurisdiction in divorce cases: without counsel a destitute wife could not comply with the statutes and court rules, and the court would be deprived of a necessary means of exercising its jurisdiction. The court also rejected the argument that only the district court could make such an order after appeal, disapproving the California decision in Reilly v. Reilly on that point.