LEEMING VS. LEEMING (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

The court affirmed the district court's refusal to apply NRCP 68 to post-judgment proceedings in a divorce matter. Following the divorce, the respondent moved under NRS 125.140(2) to increase child support and, on grounds of need, sought suit money under NRS 125.040 to pay counsel; the court increased child support $6,000 annually and awarded $2,500 in suit money. Because the appellant did not bring up the hearing transcript, the court presumed the evidence supported the awards. The appellant contended that, because he had served a pre-hearing NRCP 68 offer of judgment of $7,501 additional annual support as alimony (with nothing for counsel fees), the court should have denied the wife suit money and ordered her to pay his fees and costs. The court first held it could not determine whether $6,000 in child support was more or less favorable than $7,501 in alimony, given the different tax consequences (alimony taxable to the wife, child support not) and the absence of any record on the point. The court then held NRCP 68 inapplicable to divorce proceedings, which involve entirely different social considerations than other civil actions. Suit money is awarded on a showing of need to prevent a failure of justice, not conditioned on prevailing. Cranmer v. Cranmer, 79 Nev. 128, 379 P.2d 474 (1963); Green v. Green, 75 Nev. 317, 340 P.2d 586 (1959). The 1961 amendment to NRS 125.150 was intended to facilitate wives in obtaining legal aid and to allow deferral of fee adjudication until the end of proceedings; applying NRCP 68 would defeat that policy, force preliminary suit-money motions, spawn intricate 'more favorable' litigation, and conflict with the rule that a wife cannot bind the court by agreement on child custody and support because the controlling consideration is the best interest of the child. Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927). The order was affirmed and the appellant ordered to pay $1,000 for the respondent's appellate counsel.

In plain language

Several years after their divorce, the ex-wife went back to court asking for more child support for the couple's minor children and for money to pay her attorney. After a hearing, the court increased child support by $6,000 a year and awarded her $2,500 for attorney fees ('suit money'). Because the ex-husband did not bring the hearing transcript up on appeal, the Supreme Court assumed the evidence supported those awards, and the ex-husband did not seriously argue otherwise. The real question was different. Before the hearing, the ex-husband had served an 'offer of judgment' under a civil procedure rule (NRCP 68) offering $7,501 a year in additional support labeled as alimony, with nothing for attorney fees. Under NRCP 68 in ordinary civil cases, if a party rejects an offer and then does no better at trial, that party can be penalized by having to pay the other side's costs and fees. The ex-husband argued that because the court's $6,000 support award was arguably less than his $7,501 offer, the court should have denied his ex-wife her attorney fees and instead made her pay his. The Nevada Supreme Court rejected this and affirmed. It held, as a threshold matter, that it could not even tell whether the $6,000 in child support was really less favorable than $7,501 in alimony, because alimony is taxable to the wife while child support is not, and there was no record of the tax situation. More fundamentally, the court held that NRCP 68 simply does not apply to divorce proceedings, which involve different social considerations than ordinary civil lawsuits. Suit money in divorce is awarded based on need - to prevent a failure of justice - not based on who 'prevails.' Applying NRCP 68 would undermine the legislature's efforts to help wives obtain counsel, would spawn intricate side-litigation over whether an award was 'more favorable' than an offer, and would clash with the rule that parties cannot bind the court by agreement on child custody and support, where the child's best interest controls. The court affirmed and ordered the husband to pay an additional $1,000 for his ex-wife's attorney fees on appeal.