Buehler v. Buehler

151 P. 44, 38 Nev. 500

• Court: Nevada Supreme Court
• Decided: July 15, 1915
• Docket: No. 2173
• Status: Published

Opinions

By the Court,

Coleman, J.:

Appellant brought suit against respondent in the district court of Washoe County for a divorce. To the complaint the respondent filed an answer and cross-complaint, and upon the trial a judgment and decree were entered in favor of respondent granting her a divorce. Judgment was also rendered in her favor for a monthly allowance as permanent alimony in the sum of $133.33, for $275 as attorney’s fee, and in the further sum of $198.75 as costs. Appellant has brought the case to this court by appeal.

The matter is now before the court upon the application of respondent for an order requiring the appellant to pay the several sums for which judgment was rendered by the trial court, which has been appealed from, and for an allowance as an attorney’s fee for her defense on the appeal. She also asks that the court fix a time within which said payments must be made, and that, in default of making such payments, the appeal be dismissed. The court is not asked to make an allowance to respondent as alimony pending this appeal.

[1-2] It is not contended by respondent that there is any statute authorizing the making of the order asked for, but it is claimed that it is an inherent power of the court to make the order. We are clearly of the opinion that we cannot make an order upon this application requiring appellant to pay the several amounts awarded respondent in the judgment appealed from. The appellant, having perfected his appeal from the judgment, is entitled to have the judgment reviewed in the usual way, and for the court to undertake to compel appellant to pay any portion of that judgment would be to nullify the very purpose of the appeal. But we are satisfied that the court has power to make an allowance of suit money when asked for and when a'proper showing is made.

In Lake v. Lake, 16 Nev. 303, this court said:

"No statutory provision authorizes an allowance for counsel fee's in this court. But such right has been exercised by courts of similar jurisdiction in conformity with the.decisions of the ecclesiastical courts of England. (Goldsmith v. Goldsmith, 6 Mich. 285; Phillips v. Phillips, 27 Wis. 252.) The exercise of such authority is based upon the presumption that jurisdiction in divorce cases carries with it by implication the incidental power to make such allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the rights of wives."

The same question was before this court again in the case of Lake v. Lake, 17 Nev. 238, 30 Pac. 878, where the former ruling was adhered to.

There seems to be no doubt but that the practice in the ecclesiastical courts was to allow alimony on appeal, pending the final determination of the case. (Loveden v. Loveden, 1 Phillim. 208.)

" The authorities differ as to the power of an appellate court, to grant an order directing the payment of temporary alimony and suit money upon an appeal in a divorce action. In some jurisdictions such power is denied, but the weight pf authority is in 'favor of an exercise of the power.” (14 Cyc. 745.)

In the case of Holcomb v. Holcomb, 49 Wash. 498, 95 Pac. 1092, where all of the authorities taking both views are cited, it is held that the appellate court has power to make an order as to the suit money pending appeal. We see no reason for not adhering to the rule heretofore adopted by this court in the Lake case.

[3] It appears from the showing made upon the hearing of this matter that the appellant is a man of considerable means, and that all of 'his property is without the State of Nevada; and that - immediately after the case was tried, and before judgment the appellant left this state, and has never been heard from or located since by respondent, although diligent effort has been made to find him.- It also appears that respondent is without means of support, has no assets upon which to raise money to conduct her case on appeal, and has no way of earning her living. We are fully satisfied that the facts of the case justify this court in making an order that appellant pay to respondent, or her attorney, a sum sufficient to compensate the latter for appearing in her behalf in the case pending in this court on appeal.

[4] We are also of the opinion that we may order such sum to be paid within a given time, and if the order is not complied with the appeal may be dismissed. (Maharry v. Maharry, 5 Okl. 371, 47 Pac. 1051; Bennett v. Bennett, 16 Okl. 164, 83 Pac. 550; Bennett v. Bennett, 15 Okl. 286, 81 Pac. 632, 70 L. R. A. 864; White v. White, 148 App. Div. 883, 132 N. Y. Supp. 1043; Casteel v. Casteel, 38 Ark. 477; Newhouse v. Newhouse, 14 Or. 290, 12 Pac. 422.)

At the time of the oral argument, counsel for appellant made a motion to strike from the files the motion and notice of motion of respondent. We believe this practice tends to confusion, and, so far as we are advised, is not approved by any court, but condemned by many. (Wier v. Bradford, 1 Colo. 14; 28 Cyc. 15.)

It is the order of the court that appellant be, and he is hereby, directed to pay to the respondent or her attorney of record, as an attorney’s fee for her defense in this court, the sum of $250, within thirty days from the service of a copy hereof upon his attorney.

A further order as to attorney’s fees may be made by the court, should future developments justify it.

Since no application was made for alimony pending the appeal, nor for suit money, no order will be made as to them.