WUEST VS. WUEST (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Appeal by plaintiff husband from a decree granting defendant wife a divorce on the ground of extreme cruelty with affirmative relief: all of plaintiff's property, $20 per month support for the infant child, and $300 counsel fees to defendant's attorneys. Belknap, J. First, a defendant in a divorce suit may have affirmative relief: the Nevada statute is silent, and the ecclesiastical practice permitting a respondent who proves a competent wrong to take a decree as though original plaintiff is part of the common law of this country as adopted (2 Bishop, Marriage and Divorce sec. 316; Le Barron v. Le Barron, 35 Vt. 365). Second, construing sec. 27 of the divorce act (sec. 220, Comp. Laws) - which gives the wife the same proportion as if the husband were dead where the divorce is for the husband's imprisonment or adultery, 'but in other cases the court may set apart such portion for her support' - together with sec. 23 (compulsory process where necessary to the disposition of property) and sec. 25 (court shall make such disposition of the property as appears just and equitable, with property not otherwise disposed of divested out of the guilty party and vested in the party at whose instance the divorce was granted), the court held the statute confers power to make an equitable division and to vest property absolutely in the wife on a cruelty divorce; 'for her support' expresses purpose, not a limitation to a use for life. On abuse of discretion, the only value evidence was the answer's $1,500 allegation (verified at trial) plus undetermined money judgments held by appellant; the statute graduates the division by, among other matters, the quality of the delinquent's offense, and the record indicated an aggravated offense, so no abuse appeared in awarding all the property and requiring the husband to support the child. The $300 counsel-fee allowance, however, was improper given appellant's very moderate income as a harness maker; the cause was remanded with instructions to modify the decree by striking the $300 allowance, the judgment being in all other respects affirmed with costs.

In plain language

A husband filed a divorce suit, but the district court ended up granting the divorce to the wife - the defendant - on the ground of the husband's extreme cruelty, awarding her all of the husband's property, requiring him to pay $20 per month to support the couple's infant child, and ordering him to pay $300 in fees to the wife's attorneys. The husband appealed, arguing first that a defendant in a divorce suit cannot get affirmative relief at all, and second that because the divorce was granted for cruelty rather than adultery or a felony conviction, the court could at most set aside a portion of his property for the wife's use during her life, not transfer it to her outright. The Nevada Supreme Court largely affirmed. Because Nevada's statute is silent on the point, the practice of the English ecclesiastical courts - under which a defendant who proved a marital wrong could obtain a decree in his or her own favor - applies as part of the adopted common law, so a divorce defendant may have affirmative relief. Reading section 27 of the divorce act together with sections 23 and 25, the court held the legislature intended to give courts power to make an equitable division of the property, including passing a guilty husband's property absolutely to the wife; the words 'for her support' state the purpose of the division, not a limit to a life interest. On this record - the answer valued the property at $1,500 and the husband's offense appeared aggravated - the court could not say awarding all the property to the wife was an abuse of discretion. But because the husband was a harness maker with a very moderate income, the $300 counsel-fee award should not have been made, and the case was sent back with instructions to strike it.