Buchanan v. Buchanan, 7306

• Decision Date: 05 June 1974
• Docket Number: No. 7306,7306
• Citation: 523 P.2d 1,90 Nev. 209
• Parties: Denyse Diane BUCHANAN, Appellant, v. James L. BUCHANAN, II, Respondent.
• Court: Nevada Supreme Court

Page 1

523 P.2d 1

90 Nev. 209

Denyse Diane BUCHANAN, Appellant, v. James L. BUCHANAN, II, Respondent.

No. 7306.

Supreme Court of Nevada.

June 5, 1974.

Wiener, Goldwater & Galatz, Las Vegas, for appellant.

Douglas Joe Shoemaker, Brennan & Shoemaker, Las Vegas, for respondent.

OPINION

MANOUKIAN, District Judge: ¹

The parties, married May 20, 1967, are parents of twin girls, who were approximately 2 1/2 years of age when appellant, alleging incompatibility, initiated this action for divorce in October, 1971.

On January 31, 1973, the trial court granted appellant the divorce, custody of the twins, divided property of the parties, ordered respondent to pay $150.00 per month per child for their support, and specifically ruled that respondent was 'not obligated to pay (appellant) any sum whatsoever as and for her support.'

Only the amount of child support and the refusal of the trial court to award alimony are contested in this appeal.

In her first assignment of error, appellant contends that the trial court abused its discretion of allowing only $150.00 per month, per child, for their support and, secondly urges that the trial court abused its discretion in refusing to allow her alimony.

As we understand appellant's position, she does not seriously contend that the judgment below is not supported by substantial evidence. Instead, it is strongly urged there was a showing of absolute unfairness because 'the trial court violated the spirit of NRS 125.140(1) and (NRS) 125.150(1).' We are not inclined to this view.

1. The trial court in providing for child support, did so in exercise of discretionary powers conferred upon it by NRS 125.140(1). ² The question then, is what is a proper sum to require the father to contribute for the support of his children under existing conditions? This requires an answer to two subordinate questions: (1) what does the child reasonably require to maintain its standard of living?; and, (2) what can the father reasonably afford to pay? At trial, appellant's counsel inquired of appellant whether her exhibit one (1) accurately reflected the expenditures she incurred during the effective period of the order on preliminary allowances, namely September, October and November of 1972. Appellant answered in the affirmative, pointing out that clothing and perhaps some other miscellaneous items of expense were not included therein. ³ In reviewing the exhibit it appears that the trial court made a reasonable determination in awarding child support in light of the expense allocations as and for said children set forth in the exhibit.

In considering respondent's ability to contribute, the record reflects that in 1969 he had a taxable income of less than $5,000.00; 1970, some $12,000.00; and, in 1971, the approximate sum of $23,000.00. For the year 1972, before the payment of taxes, his income was approximately $52,000.00 from the practice of law, and $18,990.00 from the sale of an interest in real property. The record also shows that 1972 was an exceptional year due to respondent's receipt of two major, or extraordinary, attorney's fees. It was further demonstrated the respondent's gross earnings for 1973 would be approximately $48,000.00, before income taxes and expenses; that he pays $339.00 per month for the house payment, plus utilities; $50.00 per month to keep, or maintain, two horses; a car lease installment of $213.00 per month; that he had other loan payments in the vicinity of $1,000.00 per month; that he pays $200.00 to $300.00 monthly on various community accounts; that his other fixed expenses (excluding his law office), amounted to several hundred dollars per month for rental real property payments; $192.00 per month for electricity, maid, water, garbage and related expenses; $100.00 to $125.00 per month on other accumulated bills, and that he had an approximate $10,000.00 liability on debts of a closed business. These obligations approximate a $2,500.00 monthly expense.

In Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927), there was an agreement between the parties that there would be no reference to child support, and the mother in fact declined support. The court nonetheless awarded child support and the husband appealed, arguing that the trial was without jurisdiction to award child support in light of the understanding and agreement between the parties. This court, in approving the trial court's determination, relied on Rev.Laws 5840, § 24, which is identical to NRS 125.140(1), saying: 'The basis of the power conferred on the court by this statute to exercise a broad discretion as to custody and support, lies in the reason that it is not the rights of the parties which are to be determined, but the best interests of the child. This is universally held to be of paramount consideration, and arises from state's interest in the training, education, and general welfare of the children.' 50 Nev. at 337, 259 P. at 289. Accord: Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951); Edwards v. Edwards, 82 Nev. 392, 419 P.2d 637 (1966); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970).

While the record can be read to show respondent was able to pay more in the way of child support, there is no showing that $150.00 per month, per child, is an insufficient sum. The fact that a father may be able to pay more for support for a child than that established by the trial court, is a matter within judicial discretion, not an absolute right of the child. See Goodman v. Goodman, supra, 68 Nev. at 487, 236 P.2d 305.

The exercise of discretion by the trial court, in awarding support for a minor child, will not be disturbed unless there is a clear case of abuse. Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960); Goodman, supra. This record supports the determination made by the trial judge and it was well within both his discretion, and the 'spirit' of NRS 125.140(1).

2. Appellant next contends error because the trial court refused to award her alimony. In fact, in her opening brief, she states 'a finding on the subject of alimony is conspicuously absent from the findings of fact filed by the court.' It should be noted that the Findings of Fact and Conclusions of Law relating to the payment of $3,600.00, (a portion of the property settlement) at $300.00 per month, states that the same 'is to be part of the property settlement--not alimony'; the identical language is carried forward in the decree of divorce. Though conclusionary, the referenced language can be read to show, and certainly evidences, an intention on the part of the trial judge to make an express determination relative to the issue of alimony. This is emphasized by the specific language contained in the judgment which stated that respondent was not obligated to pay any sum whatsoever for appellant's support. In further support of this court's affirmation of the trial court's determination see Dillon v. Dillon, 68 Nev. 151, 154, 227 P.2d 783, 784 (1951), where the court quotes from Dutertre v. Shallenberger, 21 Nev. 507, 34 P. 449, (1893), saying: 'that upon all facts properly pleaded, in the absence of any express findings, this court will imply a finding in favor of the judgment of the trial court. (Citation omitted): '. . . (W)here a judgment is rendered for plaintiff upon certain findings in his favor without reference to the findings of fact upon certain issues raised in defendant's answer, it will be presumed that such findings were found."

Appellant's brief states: 'It is not the contention of appellant that an award should have been made for alimony for an unlimited period of time but rather that the court, because of the inadequacy of the totality of its ruling, should have provided at least enough money which, together with the support for the children, would have entitled appellant to adjust to the situation.' The trial court's ordering that respondent make the additional payment of $3,600.00 at the rate of $300.00 per month, though as part of the property settlement and not as alimony, to this court, is a showing of a reasonable effort on the part of the trial court to allow appellant to adjust to the situation.

In support of her claim for alimony appellant states that this court has long held the right of the wife, who has been given the divorce, to such support as to the court shall appear adequate in view of the financial conditions of the parties, cannot be questioned. While the statement is correct, this court has also said: 'In our opinion, these words mean simply that the action of the trial court in awarding alimony in a proper case will not be disturbed on appeal. They do not mean that in all cases where the wife is granted a divorce she is entitled to alimony as a matter of right.' Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d 264, 265 (1963). (Emphasis added). In determining whether alimony should be paid, as well as the amount thereof, courts are vested with a wide range of discretion. This power of determination is neither arbitrary nor uncontrolled. Much depends upon the particular facts of the individual case. Among the matters to be considered are: the financial condition of the parties; the nature and value of their respective property; the contribution of each to any property held by them as tenants by the entirety; the duration of the marriage; the husband's income,...