Ellett v. Ellett

• Decision Date: 25 January 1978
• Docket Number: No. 8909,8909
• Parties: James D. ELLETT, Appellant, v. Norma T. ELLETT, Respondent.
• Court: Nevada Supreme Court

Page 1179

573 P.2d 1179

94 Nev. 34

James D. ELLETT, Appellant, v. Norma T. ELLETT, Respondent.

No. 8909.

Supreme Court of Nevada.

Jan. 25, 1978.

Erickson, Thorpe & Swainston, Ltd., Reno, for appellant.

Leslie B. Gray, Reno, for respondent.

OPINION

MANOUKIAN, Justice:

On June 5, 1948, the appellant and respondent were married in San Francisco and continued to live in California until 1956 when they became residents of Nevada. During 1966 or 1967, the appellant moved out of the family home in Reno and subsequently lived with another woman.

The appellant, forty-eight years of age at time of trial, is the resident vice-president and manager of Fireman's Fund Insurance Company located in Reno. His annual gross salary from Fireman's is $31,600, but he receives intermittent supplemental income earned as a referee and as an instructor at the University of Nevada in Reno.

The two children by this marriage have each attained the age of majority. The respondent was, at the time of trial, forty-seven years of age and unemployed, contending that she is precluded from employment due to her physical condition, namely, ileitis, a disease of the lower bowel. The existence of the claimed ileitis was challenged by appellant, and each party introduced expert medical testimony to support their respective contentions.

Evidence offered at trial indicated that during the first three years of an approximately nine year separation, appellant placed a monthly sum of $700 to $800 in respondent's checking account from which she paid her bills. Subsequently, appellant began to pay respondent's bills directly and in addition gave her $150 per month for groceries. Upon institution of the divorce action, the parties entered into an agreement pending the outcome of the litigation by which appellant was to pay all of respondent's expenses and provide an additional $300 in cash per month.

The trial court entered a partial decree of divorce on January 29, 1976, which terminated the marital relationship, however, expressly reserving jurisdiction to issue a subsequent decree regarding the division of community property and community debts, and the award of alimony. That supplemental decree was entered on May 17, 1976, and appellant now appeals therefrom.

Appellant claims the trial court erred and abused its discretion in: (1) making disposition of appellant's retirement plan after the decree of divorce was entered; (2) awarding two community property vehicles to the emancipated children of appellant and respondent; (3) awarding respondent permanent alimony of $750 per month; (4) awarding respondent attorney's fees of $3000; and (5) entering an uncertain and ambiguous order in requiring appellant to satisfy "all outstanding debts" of the parties. We now turn to a resolution of these questions.

1. The Retirement Plan.

Appellant's first claim of error and abuse concerns the trial court's award to respondent of a half-interest in the retirement fund benefits accruing up to the date of the supplemental decree of divorce when the marital relationship was terminated by the partial decree of divorce some four months earlier. Appellant, citing NRS 125.150(3), contends that this constituted an arbitrary award of his separate property in contravention of statutory authority. ¹ Appellant does not question the trial court's division of the nonvested retirement rights, thereby implicitly acknowledging the propriety thereof, see, In re Marriage of Brown, 126 Cal.Rptr. 633, 544 P.2d 561 (Cal.1976), however he does contend that it was error to credit respondent with the additional approximate four months' equity in the benefits plan.

Much of appellant's error in this contention rests on his misconception of the partial decree as a final judgment. We need not reach the issue of the trial court's claimed departure from NRS 125.150(3), since NRS 125.150(1) in relevant part empowers the trial court to "make such disposition of the community property of the parties, as appears just and equitable," and the January decree being interlocutory by its express terms reserved jurisdiction of respondent's community interest in the retirement rights pending final adjudication of the parties' rights following the May proceeding. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). An order or judgment which reserves a question for future consideration and determination is interlocutory and is not a final judgment. Ormachea, supra ; Alper v. Posin, 77 Nev. 328, 363 P.2d 502 (1961); Elsman v. Elsman, 54 Nev. 20, 2 P.2d 139 (1931).

Before we will reverse the trial court, the record must reveal that the judgment was clearly erroneous and not based upon substantial evidence. Savini Constr. Co. v. A&K Earthmovers, 88 Nev. 5, 492 P.2d 125 (1972). In the instant case, the trial court, in entering the interlocutory decree and reserving jurisdiction to later make its final distribution, was acting within its sound discretion. Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103 (1973); Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968).

2. Community Property Vehicles.

Appellant claims as error the trial court's awarding two, old community property vehicles to the adult daughters of the parties. We agree.

Respondent, while acknowledging that the disposition cannot be characterized as child support or a transfer to respondent, nonetheless argues that the trial court's action was well within the discretion conferred upon the trial court by NRS 125.150(1). This question was settled long ago by our Legislature and this Court. The latitude of discretion conferred upon the trial court by NRS 125.150(1) to dispose of community property with regard to " the burden, if any, imposed upon it, for the benefit of the children," does not pertain to children beyond the age of majority. NRS 129.010; Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414 (1955).

The action by the trial court constituted error and requires reversal and remand.

3. Award of Alimony.

Appellant next contends that the trial court abused its discretion by awarding permanent alimony of $750 per month. He basically contends that respondent is capable of gainful employment and that being the case disqualifies respondent from alimony consideration. We need not address that narrow issue, since we find the record to be replete with evidence supporting the trial court's determination.

Respondent's medical expert, who has treated her since 1959, testified that, in his opinion, respondent could not obtain permanent employment because of her ileitis. Evidence was also presented that respondent was forced to resign employment as a result of her medical condition. Respondent had not worked full-time since the birth of the parties' first child in 1953 and had held various part-time jobs, including secretarial, clerical, and teaching until some time in 1973. Appellant's medical expert, however, testified that respondent could obtain employment. The expert's opinion was premised solely on her review of the respondents x-rays. The expert admitted that she had never seen the respondent physically, much less professionally, and that she knew nothing of respondent's medical or surgical history nor current drug therapy.

It is well within the province of the lower court to consider such conflicting testimony and to award alimony in accordance with its judgment. Fletcher, supra. The trial court was equally concerned that, upon divorce, respondent would no longer be entitled to the medical benefits of appellant's health plan. The record shows that because of her past medical history, respondent would undoubtedly be unable to procure adequate medical insurance coverage on her own. Thus, in the event that further medical treatment or surgery became necessary, respondent would incur expenses having to be paid from her alimony award.

As this Court stated in Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974):

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 duration of the marriage; the husband's income, his earning capacity, his age, health and ability to labor; and the wife's age, health, station and ability to earn a living. (Emphasis added.)

Id. at 215, 523 P.2d at 5.

In Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d 264, 265 (1963), we stated that: "the action of the trial court in awarding alimony in a proper case will not be disturbed on appeal." The trial court was within our Buchanan, supra, pronouncements, and we conclude that this is a "proper case" for the award of alimony and that there was no abuse in the amount of the award.

4. Award of Attorney's Fees.

Appellant next objects to the trial court's award of $3,000 to respondent for attorney's fees. An award of attorneys' fees in a divorce proceeding falls within the sound discretion of the trial court. NRS 125.150(2); Fletcher, supra ; Fox v. Fox, 81 Nev. 186, 401 P.2d 53 (1965). Appellant contends that since respondent was awarded certain items of community property, including some shares of readily salable stock, that she should accept the burden of her fees and that the trial court abused its discretion in awarding such fees. We cannot accept appellant's argument. Necessitous circumstances are no longer a pre-requisite to the awarding of fees. Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972).

Here, the trial judge was thoroughly familiar with the file and proceedings, presided over the initial trial as well as supplemental proceedings, and was familiar with pretrial activity and probable time dedication in terms of counsel's preparation for trial. The record further shows that a reasonable record was made substantiating the...