Fenkell v. Fenkell

• Citation: 469 P.2d 701,86 Nev. 397
• Decision Date: 21 May 1970
• Docket Number: No. 6052,6052
• Parties: Jack FENKELL, Appellant, v. Jelen C. FENKELL, Respondent.
• Court: Supreme Court of Nevada

Page 701

469 P.2d 701

86 Nev. 397

Jack FENKELL, Appellant, v. Jelen C. FENKELL, Respondent.

No. 6052.

Supreme Court of Nevada.

May 21, 1970.

Alex A. Garroway, Reno, for appellant.

David G. Parraguirre, Reno, for respondent.

OPINION

BATJER, Justice.

This is an action for divorce, tried before the district court on the complaint of the appellant, the answer and counterclaim of the respondent, and the appellant's reply.

In her counterclaim the respondent asked for custody of the minor child of the parties, and the sum of $150 per month for the child's support until she reaches the age of 13, with an increase at that time to the sum of $250 per month, to continue during the child's minority or until she is emancipated. Respondent also requested the sum of $700 per month alimony for two years, and thereafter, the sum of $500 per month until such time as she might remarry.

The trial transcript is not a part of the record. Pursuant to NRCP 75(c)(e) (n) ¹ the appellant has filed an abbreviated statement of the evidence. The respondent did not take advantage of NRCP 75(n), and except for the trial court's findings of fact the appellant's statement is the only recitation of facts to which we can turn. In her answering brief, the respondent has recited certain alleged facts which do not appear in either the appellant's statement of the evidence or the trial court's finding of fact. Because they are outside the record, we cannot consider them. In Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969), we said: '* * * (F)acts in the briefs of counsel will not supply a deficiency in the record.' Mitchell v. Bromberger, 2 Nev. 345 (1866); Wilson v. Wilson, 55 Nev. 57, 24 P.2d 317 (1933); _ _, A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Lee v. Sheriff, 85 Nev. 379, 455 P.2d 623 (1969).

We do not question the accuracy or truth of the appellant's 'statement as to evidence,' (see Middleton v. Hartford Accident & Indemnity Co., 119 F.2d 721 (C.C.A. 5th 1941). However, the statement does not affirmatively allege, nor purport to contain, all the evidence adduced at the trial. Therefore, we choose to follow the long established rule that a judgment of the district court will not be disturbed as being unsupported by the evidence when the statement fails to affirmatively show that it contains all the material evidence. Sherwood v. Sissa, 5 Nev. 349 (1870); White Pine Co. v. Herrick, 19 Nev. 311, 10 P. 215 (1886); Olson v. Oregon Short Line R. Co., 24 Utah 460, 68 P. 148 (1902); Stoddard v. Fox, 15 Idaho 704, 99 P. 122 (1909); Voorheis-Trindle Company of Nevada v. Boyd, 84 Nev. 654, 447 P.2d 36 (1968).

The appellant does not attack the entire judgment, but contends that the trial court erred when it made the following financial awards to the respondent: (a) $125 per month for the maintenance, support and education of the minor child of the parties; (b) Tuition expenses incurred by respondent, not to exceed $50 per week, for a term not to exceed two years if respondent is enrolled and attending lipreading school to overcome her hearing defect; (c) Tuition expenses, not to exceed $700 to allow her to attend a beauty college; and (d) A fee in the sum of $400 for respondent's counsel.

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). (See also Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951), for an excellent discussion of judicial discretion.) However, the paramount guiding principle in the exercise of judicial discretion, in these cases affecting the rights of children, is the best interest and the welfare of each child whose rights are involved.

In Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927), the trial court awarded to the wife the sum of $100 per month for the support of the parties infant child, although the husband and wife had agreed that there should be no provision made for the support of the child, and the wife testified that she wished none, nor did the complaint ask for any such relief. The defendant husband appealed, insisting that the trial court was without jurisdiction or authority to make such an order. This court held that the question of child support was within the sound discretion of the trial court; that the basis of the power conferred on the trial court, by 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 interest of the child. In that case this court went on to hold that the trial court had the right to make the award for the support of the minor child, regardless of any agreement or wishes of the parties; and that the statute impose upon a court having jurisdiction of a divorce case, the duty to provide for the welfare of the child as a necessary incident to such jurisdiction.

In Atkins v. Atkins, supra, the court said: 'There is an answer in this case, and consequently, under the express terms of said section (Revised Laws, 5840) the court could grant any relief consistent with the case made by the complaint and embraced within the issue.' Here we not only have an answer but a reply to a counterclaim. The respondent asked for child support in the amount of $150 per month, to commence immediately, and $250 per month after the child had reached the age of 13. Under the express terms of NRS 125.140, the trial court was authorized to grant any relief consistent with the case established by the counterclaim so long as it embraced the paramount objective of the present comfort and future well-being of the child. The award of child support in the amount of $125 was within the amount requested in the counterclaim and it is obvious that it was for the present comfort and future well-being of the child. If a trial court in this state has been permitted to make an award of child support when it was not requested in the pleadings and when it was rejected in open court by the plaintiff wife (Atkins v. Atkins, supra) a fortiori the trial court, in this case, shall not be precluded from making a reasonable award just because the respondent did not minutely detail her present and prospective need for such child support.

Additionally, the appellant contends that the trial judge committed prejudicial error when he stated that he had children and based his determination of child support on his knowledge of the cost of maintaining his children. Although we find the trial judge's avowed measure for determining child support unusual, it does not amount to error. NRS 125.140(2) authorizes the trial court to make such order for the custody, care, education, maintenance and support of minor children as may seem necessary or proper. In order to determine what 'may seem necessary or proper,' the trial judge must call on his entire knowledge, training and experience to reach that decision.

The appellant objects because the district court made lump sum alimony awards contingent upon the respondent seeking training to improve her hearing ability and to improve her earning capacity as a beauty operator. In other jurisdictions lump sum alimony payments, which have been approved, range from $100,000 in Bruner v. Bruner, 192 Ind. 479, 135 N.E. 578 (1922), to $2,500 in Reeves v. Reeves, 399 S.W.2d 641 (Mo.App. 1966).

The contingency required by the trial court in this case does not detract from the award. We find no error or abuse of discretion by the district court in awarding to the respondent, as part of her alimony, an allowance to enable her to improve her hearing ability and to enable her to take a refresher course at a beauty college.

In Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968), we approved the trial judge's award of $16,500 to the wife in lieu of all her community property rights, and as and for alimony, and held: 'Before the appellate court will...