RIEMER VS. RIEMER (CHILD SUPPORT)

Key holdings

Practitioner summary

The mother appealed from an order reducing the father's child-support obligation, entered after he showed his income had been reduced by approximately one-half; the modification set support at $50 per month per child during minority while living with the mother. First, the mother argued, relying on Paine v. Paine, 71 Nev. 262, 287 P.2d 716 (1955), that the order lacked evidentiary support touching the children's best interests and served only to reduce the father's obligation. The court held this misconstrued Paine, which concerned whether the court could create a support duty where none existed by shifting the mother's assumed obligation to the father, and which required a showing that the children's interests were concerned. Here the support obligation remained with the father and continued a relationship with which the children, father, and court are concerned; it is not fixed but subject to readjustment as circumstances direct, and the court's power of adjustment is not limited to changes in the children's favor. Second, the mother argued the father's ground for reduction had already been adjudicated against him in a July 1952 District of Columbia action (judgment December 8, 1953) and was barred by res judicata. The court held res judicata was not asserted at the hearing below, where both parties in effect urged an independent exercise of discretion, and would not be considered when raised for the first time on appeal. Allen v. Ingalls, 33 Nev. 281, 111 P. 34, 114 P. 758; Dondero v. Turrillas, 59 Nev. 374, 94 P.2d 276 (1939); Harper v. Lichtenberger, 59 Nev. 495, 92 P.2d 719, 98 P.2d 1069, 99 P.2d 474. As to the mother's request for appellate attorney's fees, that had been denied on her motion for allowances absent a showing of necessitous circumstances (Riemer v. Riemer, 72 Nev. 257, 302 P.2d 483 (1956)); counsel fees are not allowed as costs in such a proceeding, and any contractual right must be adjudicated in the usual manner, not in the first instance on appeal. Affirmed, with costs to appellant.

In plain language

A 1948 divorce decree gave the mother custody of the minor children and required the father to pay specified sums for their support. In 1953 the father asked the court to reduce his support obligation, showing that his income had dropped by about half. The court reduced the payments to $50 per month per child. The mother appealed. The mother made two arguments. First, she said the reduction was not supported by any evidence about the children's best interests and only served to lessen the father's obligation; she relied on Paine v. Paine. The Nevada Supreme Court rejected this, explaining she misread Paine. Paine involved an attempt to create a support duty in a parent where none existed (shifting the mother's assumed duty to the father) without any showing it concerned the children's interests. Here, by contrast, the father's ongoing support obligation continued a relationship that concerned the children, the father, and the court, and that obligation is subject to readjustment as circumstances change; the court's power to adjust is not limited to changes in the children's favor. Second, the mother argued the father was barred by res judicata because a District of Columbia court had already refused to reduce his obligation. The court held res judicata would not be considered because it was never raised at the hearing below and was asserted for the first time on appeal. The court affirmed the reduction.