THORNE VS. THORNE (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The husband appealed from decree provisions ordering him to pay the wife $20,000 in installments, to convey his five-eighths interest in New York real property, and to pay $2,500 in counsel fees, where the court had found substantial separate estates on both sides and no community property. Under NRS 125.150, the court's power to make an equitable disposition of property is limited to community property; its only power over the husband's separate property is to set apart such portion for the wife's support as is just and equitable. The decree's language, and the prayer of the wife's counterclaim ('that the court make proper settlement of the property rights'), showed the court intended an adjustment of property rights rather than an award of support. The wife's right or need for continuing support was neither asserted nor adjudicated below - not the subject of pleadings, findings, conclusions, or decree - and the appellate court could not supply that function. The court therefore lacked power under the statute to award paragraphs 2(a) and 2(b). As to counsel fees, judgment for attorney's fees in a divorce is not authorized except as suit money under NRS 125.040, founded on a motion for suit money and the requisite showing; while litigation expenses may be considered in disposing of community property, there was none here, and although a motion for suit money had been filed, no hearing was held and no order made. Paragraph 2(f) was therefore improper. The court reversed and remanded with instructions to strike paragraphs 2(a), 2(b), and 2(f).

In plain language

In a divorce granted to the wife, the trial court ordered the husband to pay the wife a lump sum of $20,000, to convey to her his interest in certain New York real estate, and to pay $2,500 in attorney's fees. The court found the husband had separate property worth more than $250,000 and the wife had separate property worth about $55,000, and that the couple had no community property. The husband appealed these provisions. The Nevada Supreme Court reversed. It held that Nevada's property statute (NRS 125.150) gives a court power to divide only community property, not the husband's separate property; the court's only power over the husband's separate property is to set aside a portion for the wife's support. Here the trial court had labeled the awards a 'settlement of property rights,' not support, and the wife's need for continuing support had never been pleaded, litigated, or decided. So the court had no authority to hand over the husband's separate property as a property settlement. The court also held the $2,500 attorney's fee judgment was improper: a court's power over counsel fees in a divorce lies only in awarding 'suit money' under NRS 125.040 on a proper motion and showing, and although a motion for suit money had been filed, no hearing was held and no order was ever made on it. The court reversed with instructions to strike the three challenged paragraphs from the decree.