RIEMER VS. RIEMER (CHILD SUPPORT)

Key holdings

Practitioner summary

In this per curiam order on the wife's motion for allowances and a stay ad interim, the wife - having appealed from the order granting the husband's motion to modify (reduce) child support - sought a $25 clerk's fee, $350 for preparation of the record on appeal, and $2,500 in preliminary attorney fees, without alleging necessitous circumstances. She contended a showing of necessity was unnecessary because (1) the husband had contractually agreed to pay all costs and expenses of the litigation, and (2) she sought allowances for the minor children rather than for herself. The court held that preliminary allowances are granted to enable the wife to prosecute her appeal; the husband's disputed contractual obligation, if established, might ground a demand for judgment for fees at the conclusion of the case but does not itself compel a preliminary order, and if she has ample funds to prosecute the appeal his agreement would not compel one. Black v. Black, 47 Nev. 346, 221 P. 239 (1923); Effinger v. Effinger, 48 Nev. 205, 228 P. 615 (1924); Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110 (1937). Nor did the fact that the appeal sought reversal of an order reducing child support (as distinguished from alimony) alter the situation, no authority recognizing such a distinction having been cited. The motion for allowances was denied.

In plain language

After the trial court granted the husband's motion to reduce his child-support obligation, the wife appealed. While that appeal was pending, she asked the Nevada Supreme Court for allowances to cover the costs of the appeal: a $25 clerk's filing fee, $350 to prepare the record, and $2,500 in preliminary attorney's fees. She did not claim she was in necessitous (needy) circumstances. Instead, she argued that a needy showing was unnecessary because (1) the husband had contractually agreed to pay all costs and expenses of the litigation, and (2) she was seeking the allowances not for herself but for the minor children. The Nevada Supreme Court denied the request. It held that the general rule is that preliminary allowances are granted to enable a wife to prosecute her appeal, and if she has ample funds to do so, the husband's alleged contractual promise to pay costs does not, by itself, compel a preliminary order (although it might support a later judgment if the contract obligation is proven). The court also rejected the argument that it made a difference that her appeal concerned support for the children rather than alimony for herself, finding no authority recognizing that distinction. The motion for allowances was denied.