WALLMAN VS. WALLMAN (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Motion by the respondent wife, in the plaintiff husband's appeal from a judgment in her favor and the order denying a new trial in his divorce action, for $200 attorney's fees for the defense of the appeal, for expenses of depositions taken for use in the trial court, and for a stay pending compliance. On the competing affidavits (wife: no property, dependent on her labor, earning $64 per month; husband: professional musician, unemployed since March 1924, twelve months' earnings of $269.10, debts of $1,450), Coleman, J., held that where the husband is plaintiff in a divorce suit, poverty on his part is no ground to resist the wife's application for suit money: he must either furnish the funds for her defense or submit to a stay of proceedings (quoting Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233; Mangels v. Mangels, 6 Mo. App. 481; Deemer v. Deemer, 7 Pa. Co. Ct. R. 554; Cohen v. Cohen, 11 Misc. Rep. 704, 32 N.Y.S. 1082; 19 C.J. 236, sec. 554). The reasonableness of the $200 fee was not contested. The court disclaimed authority in the appellate proceeding to order payment of deposition expenses incurred in the trial court, a matter within that court's jurisdiction subject to review on appeal. Ordered: plaintiff to pay $200 to the clerk for the wife's attorney's fee; proceedings stayed until compliance.

In plain language

Harry Wallman, who had married Catherine Wallman in New Jersey and then established residence in Nevada, sued her for divorce. She contested the case and won - judgment went in her favor - and the husband appealed. The wife, who lived in Newark, New Jersey, had no property, and earned only $64 per month, asked the Nevada Supreme Court to order the husband to pay $200 for an attorney to defend the appeal, plus her deposition expenses from the trial, and to halt the appeal until he paid. The husband answered that he was an out-of-work musician who had earned only $269.10 in the past year and was $1,450 in debt. The Supreme Court granted the fee request anyway. When the husband is the one suing for divorce, his poverty is no ground to resist the wife's application for suit money: he must either furnish his wife the funds to make her defense or submit to a stay of his own case. Quoting decisions from Colorado, Missouri, New York, and Pennsylvania, the court observed that a husband who 'desires the luxury of a divorce' must pay his wife's expenses of the litigation. The husband's counsel did not dispute that $200 was reasonable. The court had no authority, however, to award the deposition expenses incurred in the trial court - that was for the trial court. It ordered the husband to pay $200 to the court clerk for the wife's attorney fee and stayed the appeal until he complied.