Goodman v. Goodman

• Decision Date: 10 October 1951
• Docket Number: No. 3669,3669
• Citation: 68 Nev. 484,236 P.2d 305
• Parties: GOODMAN v. GOODMAN.
• Court: Nevada Supreme Court

Page 305

236 P.2d 305

68 Nev. 484

GOODMAN v. GOODMAN.

No. 3669.

Supreme Court of Nevada.

Oct. 10, 1951.

Springmeyer & Thompson, Reno, for appellant.

Samuel Platt, Reno, for respondent.

MERRILL, Justice.

This is an appeal from order of the trial court denying a motion for modification of a divorce decree to provide increased support for the minor child of the parties. The question before us is whether this action by the court constituted abuse of judicial discretion.

On June 24, 1948 a decree of divorce was granted to appellant, which decree granted her custody of the minor child of the parties, a boy six years of age. The decree approved an agreement between the parties under the terms of which respondent agreed to pay to appellant the sum of $25 each week for the support, maintenance and education of the child.

On November 7, 1950 appellant filed notice of motion to modify said decree by increasing the amount to be so paid from $25 a week to $100 a week. The motion, generally, was made upon the grounds that the sum of $25 a week was insufficient for the purposes; that respondent was well able to pay the amount sought; that the financial circumstances surrounding the child had changed for the worse and those of the respondent had improved. On November 30, 1950 the motion was presented and was denied by the trial court. This appeal was then duly taken.

The court in so acting did so in exercise of discretionary powers conferred upon it by statute. Accordingly, upon this review our concern is not whether error of law in the ordinary sense was committed by the trial court, but whether its action constituted abuse of discretion.

The action of the trial court with which we are here concerned, was taken pursuant to the provisions of Sec. 9462, N.C.L. 1929, Supp. 1943-1949, which states: 'The court, in granting a divorce, shall make such disposition of, and provision for, the children, as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children; * * * the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance, and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.'

The position of appellant is that (aside from the question of changed circumstances) the motion to modify the decree presented to the trial court one question of fact: What is a proper sum to require the father to contribute for the support of his child under existing conditions? (Which question includes the two subordinate questions: (1) What does the child reasonably require to maintain his standard of living? and (2) What can the father reasonably afford of pay?)

Evidence before the trial court was confined to affidavits. The facts so established need not be discussed in detail for the purposes of this decision. It may be conceded that the evidence established that the sum of $25 a week was insufficient to maintain the child in the manner which both parties apparently were agreed he should enjoy; that the father was able to make payments for support of the child in excess of this sum and that some pertinent change of circumstances was shown both as to the child and as to the father.

Appellant contends, under these circumstances, that the modification of the decree was no longer a matter of discretion but a matter of right in the child; that the court had no discretion but to grant the motion in an appropriate amount.

A consideration of the nature of judicial discretion is, we feel, essential to a proper determination of the matter. Few legal terms are subject to a wider diversification of definition and construction.

Bouvier has defined 'discretion' in part as: 'That part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.'

Dean Pound in his 'Readings On The History And System Of The Common Law' (page 19) deals with the subject in the following manner: 'Four propositions may be laid down with reference to the exercise of discretion: (1) Whether or not a matter is one for law or for discretion is settled by law, and the court has no power to put in in the one category or the other at pleasure. A court has no discretion to apply the law or not as it sees fit. (2) Where discretion is conferred, it must really be exercised as such; the court cannot act oppressively or arbitrarily under pretence of exercising discretion. Such arbitrary or oppressive action under color of exercising discretion is called abuse of discretion. (3) If discretion reposed in a court or judge is in fact exercised as such, the manner of its exercise will not be reviewed. (4) But if the discretion is abused, the abuse may be reviewed and corrected by a higher tribunal.'

Mr. Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheat. 738 866, 22 U.S. 738, 6 L.Ed. 204, 234, has stated: 'Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court of follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to...