WILDE VS. WILDE (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Defendant husband's appeal from a post-judgment order directing him to pay $193.75 into court, entered after plaintiff wife's divorce suit terminated in a judgment for defendant; her motion for alimony pendente lite and suit money had been noticed June 4 for hearing June 8 (the day set for trial), objected to for want of five days' notice and service of the supporting affidavit, and taken under advisement while the trial proceeded. Opinion by Beatty, J., Lewis, C. J., concurring; reversed. The 'due notice' required by the alimony provision of the divorce statute means the notice prescribed for all motions by the General Practice Act - a written notice of five days where both parties reside in the district - so the motion could not properly have been heard on four days' notice absent defendant's consent, and was properly laid over. On the dispositive point: alimony pendente lite rests on the prima facie case made by the wife's bill and exists to provide her, out of the property generally under the husband's control, the means of establishing that case at trial, lest a tyrannical husband abuse his wife and shield himself by denying her the means of asserting her rights; but the rationale ends with a judgment establishing the suit was groundless, and after judgment for the defendant husband the court cannot make an order for the past costs and expenses of the action (citing Bishop, Marriage and Divorce secs. 416, 417). The court distinguished the proper case in which a new-trial motion or appeal is pending, where the court below may in its discretion allow alimony to prosecute the case to final hearing. Jurisdictionally, the supreme court has jurisdiction of all chancery cases whatever the amount in controversy, and the order, made after judgment, was an appealable order under the statute. The order directing Jonathan L. Wilde to pay $193.75 into court was reversed and set aside, with direction that the court below make an order to that effect in its minutes.

In plain language

A wife filed a divorce bill against her husband in April; he answered in early May, and on May 30 the case was set for trial on June 8. On June 4 her attorney gave notice that on June 8 - the trial date itself - he would move for an allowance out of the husband's estate as alimony pendente lite and to enable her to prosecute the suit. The husband objected that he had not received five days' notice, and the court took the motion under advisement while the trial went forward. The trial ended in a judgment for the husband. Afterward, the court ordered the husband, Jonathan L. Wilde, to pay $193.75 into court, and he appealed from that order. The Nevada Supreme Court reversed. It held that the 'due notice' the alimony statute requires means the five days' written notice prescribed for motions generally by the General Practice Act, so the court could not properly have heard the motion on only four days' notice without the husband's consent - the motion was properly laid over. But once the trial ended in a judgment for the husband, the court could no longer grant the motion at all: temporary alimony exists to give a wife who has made a prima facie case the means to establish it at trial, and after the court has determined the action was groundless, it is error to order the husband to pay the past costs and expenses of the failed suit. The court noted that where a new trial motion or an appeal is pending the district court may in its discretion still allow alimony to prosecute the case to final hearing - but here the controversy was entirely ended. It also confirmed its own jurisdiction: the supreme court hears all chancery cases regardless of amount, and the order, made after judgment, was appealable.