Lindsay v. Lindsay

• Decision Date: 05 September 1929
• Docket Number: 2783.
• Citation: 280 P. 95,52 Nev. 26
• Parties: LINDSAY v. LINDSAY.
• Court: Nevada Supreme Court

280 P. 95

52 Nev. 26

LINDSAY v. LINDSAY.

No. 2783.

Supreme Court of Nevada

September 5, 1929

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by Helen Minor Lindsay against Gordon Inglis Lindsay. Decree for plaintiff. From an order construing the decree, plaintiff appeals. Order reversed with directions.

Cooke & Stoddard, of Reno, for appellant.

McCarran & Mashburn, of Reno, for respondent.

DUCKER C.J.

On March 22, 1924, the court in the above-entitled action decreed a divorce in favor of the plaintiff wife, appellant here, which contains the following provisions concerning the support and custody of the minor children of the parties, to wit: "That the defendant (husband) pay to the plaintiff the additional sum of Twelve Hundred Dollars per year in equal monthly installments for the full and entire support and maintenance of the minor child, Gordon Inglis Lindsay Jr., excepting therefrom the cost of his education commencing on April 1, 1924, and to continue until he shall become self-supporting; and that the defendant pay to the plaintiff the additional sum of Twelve Hundred Dollars per year in equal monthly installments for the full and entire support and maintenance of the minor child, Mary deForrest Lindsay, excepting therefrom the cost of her education commencing on April 1, 1924, and to continue until she shall marry; that the plaintiff be awarded the custody and care of said minor children during the term of each school year, and defendant be awarded the custody and care of each of said children during the summer school vacation period and one-half of all other school vacation periods, and the defendant also be awarded the care and custody of said children from Friday evening until Monday morning on each alternate week during the school terms only, and when the schooling of said children shall have been completed the care and custody of said minor children be equally divided between plaintiff and defendant."

On February 2, 1927, through his attorney, defendant filed in the trial court his notice of motion and motion for an order to construe the decree of divorce in the following particulars:

"(1) As to whether said decree requires the respondent to pay all of the expenses of the education of the children, or whether he may deduct such expenses as he may be required to pay for their education from the $1200 which he is required to pay each year for the support and maintenance of each of them, and

(2) As to whether said decree requires respondent to pay appellant the sum of $1200 per year for the support and maintenance of each child, or whether he could deduct therefrom the amount of expense he actually pays out each month for the support and maintenance of each child when the children are in his custody during the vacation period of the year during that portion of their lives when they are receiving their schooling and education and in his care and custody thereafter as provided for in the decree."

In the motion is also contained a request for an order modifying the decree in case the court should construe it to require the respondent to pay the sum of $1,200 a year for the support and maintenance of each child in addition to the expense of their education and the expense of their support and maintenance while in his custody under the terms of the decree, so as to provide that respondent would not be required to pay the full $100 per month for each child during the time the children were in his custody, but would be permitted to deduct all sums paid for their support, maintenance, and education during such times.

Affidavits and counter affidavits and documentary evidence were offered at the hearing on the motion. The trial court overruled appellant's objections to the court entertaining jurisdiction of the motion. After argument on the motion and consideration thereof, the court entered an order which, omitting a statement of the portion of the decree to be construed, and statements of the contentions of counsel, reads as follows:

"If we deduct the cost of education from the amount mentioned in the decree, then it is not a decree for Twelve Hundred Dollars per year in equal monthly installments for the full and entire support and maintenance of the minor child. The phrase or clause 'excepting therefrom the cost of his education' does not mean that the money is to be used for any other purpose than the full and entire support and maintenance of the minor. In other words, the cost of education is exclusive of the maintenance and support.

In this connection we will say that if the minor child lives with the father, or with any other person, the mother is supposed to pay for the full support and maintenance out of the Hundred Dollars, which the decree gives for such purpose. In other words, if the minor child lives with the father six months of the year, the mother should pay to the father, from...