Lewis v. Lewis, s. 3802
| Decision Date | 03 November 1955 |
| Docket Number | 3862,Nos. 3802,s. 3802 |
| Parties | Richard LEWIS, Appellant, v. Alice Effie Lisson LEWIS, Respondent. |
| Court | Nevada Supreme Court |
Samuelson & Johnson, Reno, John H. McNamee, Robert E. Jones, Las Vegas, for appellant.
David Zenoff, Calvin C. Magleby, and John Manzonie, Las Vegas, for respondent.
This is an action for divorce brought by the husband. A decree was entered granting him a divorce and directing payment by him of specified sums for alimony and child support. An appeal to this court was taken by the husband from that portion of the decree which directed the making of such payments. Subsequently the husband moved the trial court, upon the ground of changed circumstances, for reduction of the amount of the payments specified by the decree. This motion was denied and an appeal from that order was taken to this court by the husband. Both appeals have now been consolidated for consideration by this court.
(1) Appeal from the judgment, Case No. 3802.
Appellant first asserts that the trial judge abused his discretion in awarding to the wife $200 a month alimony and $100 a month each for the support of three children, a total of $500 a month. It is contended that these sums are excessive in the light of appellant's income.
At the time of the trial appellant testified to an income of approximately $10,000 a year. He was new to the community of Las Vegas in which he was then living. It is clear from the record that in the view of the trial judge appellant's earning power as demonstrated prior to his coming to Las Vegas was such that an increase in income was reasonably to be anticipated. Under the circumstances we cannot say that the judge's evaluation of earning power was unreasonable to the point that his action must be held an abuse of discretion.
Appellant next asserts that the trial court was without power to include the following provision in the decree, 'It is further ordered, adjudged and decreed that in addition to the foregoing allowances the plaintiff shall pay to the defendant forthwith the sum of $12,000.' It is contended that this payment of necessity would come from appellant's separate property and that the order thus constituted a disposition of separate property which since 1943 the trial court has had no legislative authority to make. Section 9463, N.C.L. prior to 1943 provided that in granting a divorce the court shall make 'such disposition of community and separate property of the parties as shall appear just and equitable * * *.' By the 1943 amendment the section was made to read
From the record it is clear that the purpose of the award was to enable the wife to provide a home for the minor children and for herself while the children remained in her custody, which home the husband in separating from his wife had neglected to provide. The award, then, insofar as purpose is concerned, falls within the authorization of the statute. Appellant contends, however, that awards of property under the statute can only be by a setting apart of specific property; that this award, contemplating as it must, liquidation of property and application of the proceeds of such liquidation, is not a setting apart. Appellant is unable to supply authority for this distinction. Where the rights to support of a wife or minor children are involved, the words 'set apart' should not be narrowly defined. Powell v. Campbell, 20 Nev. 232, 20 P. 156, 2 L.R.A. 615. In our view appellant's definition is unjustifiably narrow and, under the statute, the award was within the power of the court to make.
We find no abuse of discretion on the part of the trial judge in fixing the amount of the award at $12,000. The record indicates that at the time of separation the husband was possessed of property of a value in excess of $40,000.
Finally appellant contends that the decree improperly provides for support of the children beyond their minority or, at the...
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