PHILLIPS VS. PHILLIPS (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Defendant appealed from an order entered in a contempt proceeding initiated by the plaintiff's affidavit in the divorce action, based on his failure to pay the $50 monthly alimony awarded her in connection with an absolute divorce by order entered September 17, 1918, payable until her death or remarriage. After a show-cause hearing at which the defendant pleaded legal defenses in bar and inability to comply, the district court found arrears of $2,575 and ordered $500 paid forthwith with the $2,075 balance payable at $15 monthly alongside the continuing $50 monthly alimony. Held: the appellant's principal contention - that the divorce court lacked jurisdiction, power, or authority to award alimony in connection with a decree of absolute divorce, requiring his release from all sums past and future - need not be decided in this proceeding, though the court recorded a strong impression that Nevada and courts under like statutes are committed against the proposition (Lake v. Bender, 18 Nev. 361, as followed in Tiedemann v. Tiedemann and Powell v. Campbell, 20 Nev. 238, on the statute's object of providing support for the wife and minor children; Ex parte Spencer, 83 Cal. 460; In re Cave, 26 Wash. 213). The order's defective form - futile as process to enforce either the original order or its own mandates, remitting the plaintiff to such enforcement methods as she may be advised - was not so material as to justify vacatur. The finding of ability to comply was a matter entirely for the lower court and would not be disturbed. Order affirmed.

In plain language

Ruth Phillips had been awarded $50 a month in alimony along with her absolute divorce, payable until she died or remarried. When her former husband stopped paying, she filed an affidavit in the divorce case and the court ordered him to show cause why he should not be punished for contempt. He raised legal defenses and claimed he could not pay. After a full hearing, the court found he owed $2,575 in arrears and ordered him to pay $500 immediately and the remaining $2,075 at $15 a month on top of the continuing $50 monthly alimony. He appealed. The Nevada Supreme Court affirmed. His main argument was that the divorce court never had power to award alimony together with an absolute divorce at all, so he should be relieved of all payments past and future. The court found it unnecessary to decide that question in this proceeding, but remarked that it had a strong impression that Nevada and courts under similar statutes were committed against his position, citing Lake v. Bender and related cases recognizing that the divorce statute's object includes providing support for the wife and minor children. The court's only criticism was of the order's form - as written it was toothless as an enforcement device, leaving the wife to pursue enforcement if he disobeyed - but that was not reason to vacate it. His claim that he was unable to pay was a factual matter for the lower court, whose finding would not be disturbed.