Effinger v. Effinger

• Decision Date: 10 September 1924
• Docket Number: 2645.
• Citation: 228 P. 615,48 Nev. 205
• Parties: EFFINGER v. EFFINGER.
• Court: Nevada Supreme Court

228 P. 615

48 Nev. 205

EFFINGER v. EFFINGER.

No. 2645.

Supreme Court of Nevada

September 10, 1924

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Suit by Robert Craig Effinger against Annie Harahan Effinger. Decree for plaintiff, and defendant appeals. On motion for counsel fees. Motion denied.

Cooke French & Stoddard and Sardis Summerfield, all of Reno, for appellant.

Hoyt Norcross, Thatcher, Woodburn & Henley, of Reno, for respondent.

DUCKER C.J.

This is a motion made by appellant for counsel fees, on an appeal taken by her from a decree of divorce obtained by respondent.

In her motion and notice thereof she asks that respondent be required to pay $2,500 as her necessary and reasonable counsel fees. In support of her motion she filed two affidavits, and respondent has filed his affidavit in opposition thereto, all of which were read and submitted on the hearing of the motion. From a careful consideration of the affidavits for and against the motion, we are persuaded that no such necessity exists as to call for the exercise of our discretion in requiring respondent to pay to appellant the sum of $2,500, or any sum, for her counsel fees on this appeal.

In the case of Black v. Black, recently decided in this court, we said that the rule requiring the husband to pay the wife sufficient to enable her to maintain herself and meet the expenses of her suit or defense is based on necessity to prevent a failure of justice, and will not be required unless it appears that the wife is destitute of the means to be employed for such purposes. Black v. Black, 47 Nev 346, 221 P. 239. On this subject Mr. Nelson, in his work on Divorce and Separation, cited in the foregoing case, says:

"The ecclesiastic courts seemed to have allowed temporary alimony almost as a matter of course, without much inquiry as to the wife's circumstances. But as this relief is only granted on the ground of necessity, it is incumbent upon the wife to show that the necessity exists. Especially is this true at the present time when married women may acquire and possess real and personal property in their own right. It is error to grant alimony without such proof, as there is no presumption that she has no property. To grant temporary alimony without proof of the wife's needs is an abuse of discretion. The fact that the wife is destitute of means to carry on her suit and to support herself during its pendency is as essential as any other fact to authorize the court to award temporary alimony. This is not a mere matter of discretion, but the settled principle of equity." 2 Nelson on Divorce and Separation, ____; Collins v. Collins, 80 N.Y. 1.

Such is the great weight of authority.

Appellant admits that she has $900 more or less in bank, and that she has an income from a trust estate which normally amounts to $8,000 per annum, and it appears from respondent's affidavit that she testified on the trial of the case that this income for the year 1916 amounted to $8,085.74; for the year 1918, $8,685.60; for the year 1919, $8,351.87; for the year 1921, $8,637.35. She alleges that she is indebted in the sum of $4,000 to various persons and that her ordinary and necessary living expenses amount to $600 per month, which will be greatly increased, owing to the fact that on the advice of her physician it will be necessary for her to leave her place of residence in the city of New York and temporarily, at least, to reside in a warmer climate. She alleges that she has paid $625 towards obtaining a transcript of the record on appeal in this case and for filing the appeal in the clerk's office of this court; that she has no income or property other than the income from the trust estate, and that the whole thereof is necessary to meet her expense of living and to pay...