LEVINSON VS. LEVINSON (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

This appeal challenged the portion of a divorce decree making a final allowance of pendente lite counsel fees, the sole assignment being that the court improperly considered services rendered before the motion for additional fees. NRS 125.040 authorizes the court to require the husband to pay such sums as may be necessary to enable the wife to carry on or defend the suit, and such orders must operate prospectively; past expenses and services are not proper considerations. Benson v. Benson, 66 Nev. 94, 204 P.2d 316 (1949); Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110 (1937); Cunningham v. Cunningham, 60 Nev. 191, 102 P.2d 94, 105 P.2d 398 (1940); Hannah v. Hannah, 57 Nev. 239, 62 P.2d 696 (1936); Wilde v. Wilde, 2 Nev. 306. The dispositive question was the nature of the original October 12, 1956 order for counsel fees. Because such an order lacks the finality of a final judgment and is not itself appealable (Engebretson v. Engebretson, 73 Nev. 19, 307 P.2d 115 (1957); Harrison; Kapp; accord Wilkinson), it was interlocutory, preliminary, and tentative, and subject to further interlocutory order until final judgment. The application for additional allowances was therefore a renewal of the original motion, seeking review of the preliminary order in light of circumstances existing at the time of review. In reviewing the suitability of the original order, the court could properly consider services necessarily or properly rendered after it, since those services were rendered in reliance on both the original order and the right to seek its review. Admitting testimony as to services performed between the original order and the motion for additional allowances was not error.

In plain language

In a divorce won by the wife, part of the decree awarded her attorney's fees for her lawyers' work done while the case was pending. The wife had first moved for allowances when she filed suit in September 1956, and the court awarded $600 in counsel fees in October 1956. Just before trial in April 1957 she asked for additional counsel fees; the court waited until after trial and then awarded $3,000 more. In setting the additional fees, the court considered legal services her lawyers had performed between the October 1956 order and the April 1957 motion. The husband appealed, arguing the court could not consider services performed in the past. The Nevada Supreme Court affirmed. The court explained that while allowances for suit money must operate prospectively (a court cannot award fees for services performed before the motion), the key question was whether the original October 1956 order was a final determination of the wife's right to fees. The court held it was not: an order for allowances pendente lite is interlocutory and tentative, always subject to further order until final judgment. Because the request for additional fees was really a renewal of the original motion asking the court to review and adjust its earlier tentative order, the court could properly consider services rendered after that first order, since those services were performed in reliance on both the order and the right to seek its review.