Cranmer v. Cranmer, 4556

• Citation: 79 Nev. 128,379 P.2d 474
• Decision Date: 11 March 1963
• Docket Number: No. 4556,4556
• Parties: Robert L. CRANMER, Appellant, v. Lillian C. CRANMER, Respondent.
• Court: Nevada Supreme Court

Page 474

379 P.2d 474

79 Nev. 128

Robert L. CRANMER, Appellant, v. Lillian C. CRANMER, Respondent.

No. 4556.

Supreme Court of Nevada.

March 11, 1963.

Vargas, Dillon & Bartlett, Reno, for appellant.

Morse & Graves, Las Vegas, Harley W. Gustin, Salt Lake City, Utah, for respondent.

McNAMEE, Justice.

This is an appeal from that part of the judgment dissolving the bonds of matrimony theretofore existing between the parties hereto which awards attorney fees to the respondent in the sum of $11,000.

In addition to the dissolution of the marriage and the award of attorney fees, the judgment determined that there was no community property belonging to the parties and distributed to the appellant and respondent their respective separate properties. Their joint property was by stipulation equally divided. Furthermore, the judgment awarded respondent $1,000 per month as permanent alimony, plus $150 per month for the support of the minor daughter, whose custody was awarded to respondent.

The lower court found that appellant's assets were $148,742.75, plus his half of the securities jointly held with respondent, which added $43,611 to his net worth. His liabilities, in addition to some personal expenses, were $18,000 to Zion's First National Bank of Salt Lake City and $23,168.53 on a mortgage.

Respondent's assets were found to be a home appraised at $87,000, furnishings therein, the value of which was not determined by the court but is listed in the evidence at $10,934.45, marketable securities of the value of $16,540.25, and her half of the joint tenancy securities of the value of $43,611. She also had a 1960 automobile listed in the evidence as valued at $1,775.

The total capital assets of appellant were found by the court to have a fair market value of $192,353.75. The value of the assets of the respondent was found by the court to be $147,151.25, exclusive of the value of the automobile and the value of the household furnishings.

It is appellant's contention that the lower court erred in awarding to the wife attorney fees in the sum of $11,000 in the absence of a showing of necessitous circumstances. In Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110, this court, following earlier decisions, held that the wife's necessity is a prerequisite to allowances of suit money or attorneys' fees.

In Thorne v. Thorne, 74 Nev. 211, 214, 326 P.2d 729, 730, we said:

'As to the judgment for counsel fees, appellant contends that the court had no power to render such judgment; that its only power with respect to counsel fees lies in the area of suit money under N.R.S. 125.040 to require the husband 'to pay such sums as may be necessary to enable the wife to carry on or defend such suit.'

'This point, too, is well taken. While expenses of the litigation may well be taken into consideration by a court in its disposition of community property, judgment for counsel fees in an action for divorce is not otherwise authorized save as founded upon a motion for suit money and the showing necessary upon such a motion.'

The reason for the holding in the Thorne case that a 'judgment for couns...