LAMB VS. LAMB (DIVORCE)

Key holdings

Practitioner summary

The court first addressed the respondent's motion to strike the application, reiterating that it is bad practice to move to strike a motion (Orleans M. Co. v. Le Champ D'Or F. G. M. Co., 52 Nev. 85, 280 P. 887), and struck the motion to strike. On the jurisdictional objection, the court held that an appeal is perfected by giving notice of appeal and timely filing the undertaking on appeal (Peran v. Monroe, 1 Nev. 484; American Sodium Co. v. Shelley, 50 Nev. 416, 264 P. 980, and 51 Nev. 26, 267 P. 497); jurisdiction attaches upon perfection and is not dependent on the filing of the transcript. A grant of jurisdiction implies the power to make all orders necessary to its effective exercise and to aid an eventual judgment, including suit-money allowances, since a wife's right of appeal would be unavailing without means to prosecute it (analogizing Estate of Davis, 151 Cal. 318, 86 P. 183, 90 P. 711). The court reaffirmed that where the husband is plaintiff in a divorce suit, his poverty is no ground to resist an application for suit money; he must furnish the funds or submit to a stay of proceedings (Wallman v. Wallman, 48 Nev. 239, 229 P. 1; Whitman v. Moran, 54 Nev. 276, 13 P. (2d) 1107; Herrick v. Herrick, 54 Nev. 323, 15 P. (2d) 681; Jeffers v. Jeffers, 55 Nev. 69, 25 P. (2d) 556). The mis-captioning of the application was immaterial. The court granted the amounts sought and authorized related orders rendering the decree ineffective until the allowance is satisfied.

In plain language

A husband won a divorce against his wife in the Ormsby County district court. The wife wanted to appeal but had no money, so she asked the Nevada Supreme Court to order the husband to deposit money for her appeal costs and attorney fees. She had already filed her notice of appeal and the required appeal bond, but had not yet filed the trial transcript. The husband asked the court to throw out her request, arguing that without a transcript there was no appeal on file and therefore the court had no power to act. The court rejected that argument. It held that an appeal is complete once the appealing party files the notice of appeal and the appeal bond on time - the court's power attaches then, not when the transcript is later filed. Having that power, the court can order appeal-cost allowances even before a transcript exists; otherwise a poor wife's right to appeal would be worthless. The court also reaffirmed that when the husband is the one who brought the divorce suit, his own poverty is no reason to deny the wife money to defend or appeal - he must either fund her or accept a hold on the case. Both sides swore they were essentially broke, but the court noted the husband had managed to hire several lawyers. It granted the wife's application and ordered the husband to pay the amounts she requested to the court clerk for her benefit.