Freeman v. Freeman
| Decision Date | 30 January 1963 |
| Docket Number | No. 4496,4496 |
| Citation | 79 Nev. 33,378 P.2d 264 |
| Parties | Alice FREEMAN, Appellant, v. Albert FREEMAN, Respondent. |
| Court | Nevada Supreme Court |
Foley Brothers, Las Vegas, for appellant.
Harry E. Claiborne and John Manzonie, Las Vegas, for respondent.
The parties hereto were married November 15, 1959. A child was born in June 1960. Before the birth of the child the parties separated. On June 17, 1960, after the child was born, the husband commenced this action for divorce on the ground of extreme cruelty. The wife filed a counterclaim for divorce on the ground of extreme cruelty and the trial court granted her the divorce. 1
The appeal taken by the wife is not from that part of the judgment which grants the divorce, 2 but from those parts thereof relating to the division of property, support for the wife and minor child, and from the denial of the wife's motion for a new trial.
Appellant assigns as error:
1. The failure of the trial court to award alimony to the wife.
2. The trial court divided the property of the parties without considering the obligation of the husband to support his wife and minor child, and refunded to him sums he had expended for such support.
3. Respondent erroneously was awarded $2,000 as his sole and separate property when the evidence showed that he had no such separate property.
4. The trial court erroneously determined that certain items of personal property were gifts to the respondent rather than wedding gifts to the parties.
Appellant contends that the failure to award alimony is 'clearly an abuse of the court's discretion, for the reason that the only discretion vested in the court appears to be to fix the amount of alimony, and the court was compelled by law to make some award of alimony.'
The only Nevada case cited in support of her contention is Cunningham v. Cunningham, 60 Nev. 191, 197, 102 P.2d 94, 105 P.2d 398, 400, where this court said:
'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.'
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.
Permanent alimony in conjunction with an absolute divorce was entirely unknown to either the common law or the ecclesiastical law. There is no such thing as a common-law power to grant permanent alimony in connection with a divorce. The power to award permanent alimony is wholly the creature of statute. Annot., 34 A.L.R.2d 313, 319 (1954).
The applicable Nevada statutes are as follows:
Subsection 1 of NRS 125.150 provides: 'In granting a divorce, the court may award such alimony to the wife and shall make such disposition of the community property of the parties as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired and to the burdens, if any, imposed upon it, for the benefit of the children.'
Subsection 5 of NRS 125.150 states in part: 'In the event alimony has been awarded to the wife, or the court otherwise adjudicates the property rights of the parties * * * such alimony so awarded, such adjudication of property rights * * * may nevertheless at any time thereafter be modified by the court upon written stipulation * * *.'
It is clear from our statutes that, contrary to appellant's contention, a court is not compelled by law in this state to make some award of alimony. The allowance of permanent alimony rests within the sound discretion of the trial court to be exercised in the light of all surrounding circumstances, and such allowances will not be disturbed on appeal.
As heretofore stated, we do not have before us that part of the evidence pertaining to the...
To continue reading
Request your trial
-
Kay v. Kay
...Syracuse L.Rev. 545; see also, Morgan v. Morga 59 Wn.2d 639, 369 P.2d 516; Freel v. Freel, 253 Iowa 327, 112 N.W.2d 371; Freeman v. Freeman, 79 Nev. 33, 378 P.2d 264.) However, in our zeal to correct what may have been inequitably burdensome alimony arrangements and to recognize the selfhoo......
-
Johnson v. Steel, Inc.
...of the wife's ability to become self-supporting in the determination of alimony (citing, among other cases, Freeman v. Freeman, 79 Nev. 33, 378 P.2d 264 (1963)), the court pointed ". . . in our zeal to correct what may have been inequitably burdensome alimony arrangements and to recognize t......
-
Buchanan v. Buchanan, 7306
...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 In determining whether alimony should be paid, as well as the amount thereof, courts are vested with a wid......
-
Heim v. Heim
...this regard, we reverse and remand for new trial on the issue of alimony. Alimony is wholly a creature of statute. Freeman v. Freeman, 79 Nev. 33, 35, 378 P.2d 264, 265 (1963). In 1861 the Legislative Assembly of the Territory of Nevada authorized the court to award support for a wife "as s......