*1 majority rule with not in accord are provisions, or appeal. Detailed in this affecting points involved necessary. thought is not cases of these discussion denying appellant’s motion judgment and the order hereby with costs. affirmed trial are new for a J., J., Eather, Horsey, concur. C. Appellant ORMACHEA, v. MARGUERITE
THOMAS Respondent. ORMACHEA, LUCILLE
No. 3575
April 17,
Kearney & A. L. of Fal- and lon, for Appellant. Johnson, Vargas, Reno, & James W. Griswold and n Fallon, Respondent.
Jr., of for OPINION Judge. Court, District the Wines, By appeal an from rendered This is district, judicial an and from court of First district denying a trial. order new one for divorce. The action district court was assignment evi- of error is that the The first marriage. dence fails establish parties of 1930. Soon met in the These first summer meeting had illicit relations. parties after this during respondent became and some time pregnant, began living October, with the openly month together appellant. The live and continued to parties July, until a common home from then maintain living began left their home and when During apart appellant. and from this separate parties, children were born to the the last time seven being born 1943. children, age, regis- they reached as school were children Thomas
tered at school as the Ormachea Marguerite Ormachea, exception Lucille and with children, the last born at all of these recognized and treated the children his own times as provided them with necessaries. During signed legal period this here docu- parties wife, they man were accustomed to ments making income tax returns as wife. The man and appel- Fallon, lant maintained at accounts several stores Nevada, resided, they pur- where and the respondent clothing food and for chased herself the children from the various establishments at which the maintained accounts. *6 persons prominence
Several of some who resided in Fallon, Nevada, testified reputed the parties were community. to be man and wife in that In addition to proving open and continuous cohabitation as man and community years, wife in this for all respond- these the ent testified together that she and the appellant lived as wife, man and and that this was with the consent of and of the respondent appellant.
Except foregoing as to the last statement of the para- graph, appellant dispute the evidence, does not the but insists the nevertheless that evidence falls short of show- ing marriage, many a because respond- on occasions the requested ent the formalize their relations marriage by ceremony, a and on at one least occasion told the that he had no voice in a matter involv- ing one of the children since she not married to him. This, argued, it is respondent shows plainly that the at no time considered her relations with the appellant as illicit; other than that while held respondent this view of their she relations could not have contracted a com- marriage mon-law with the appellant, as that would have required acknowledgment her consent to and of their marital status. quarrel appellant’s no
We have
with the
view of
years appellant
the law that if for all of the
respond
together
ent lived
held the belief that
illicit,
her
relations with
were
she could
given
necessary
together
not have
consent to live
required
man and wife which
is
all cases of common-
marriage.
hand,
appellant’s
On the
law
other
propo
is not aided
sition
presumption
relations
begun illicitly
presumed
shown to have
will be
to remain
proof.
so in the absence of clear and compelling
That
presumption
indulged
jurisdic
such a
has been
in other
disputed,
long
tions is not
but it has
been the rule in
parties
when
this state that
the relations of the
in the
presumption that
beginning
illicit,
no
there is
are
so,
is
burden of proof
upon
to be
but the
same continues
marriage
asserting
prove the same.
a valid
the party
a
any
is
favor of
valid
it
If
presumption,
there
on
marriage,
presumption
be
con-
based
and this
Bernardi, 40 Nev.
Parker v. De
cohabitation.
tinuous
361,
Then
indicating
weight
testimony
if his
more
not
contra
illicit had
been
their relations as
considered
prov
testimony.
our
It is not
respondent’s
dicted
credibility
It is the
of witnesses.
ince
to determine
sitting
court,
a
province
without
of the trial
exclusive
conflicting
jury,
evidence and
on
to determine
facts
finding
it is
not
disturbed unless
clear that
its
will
be
*7
Murray
Osborne,
wrong
33
reached.
v.
conclusion was
Riper
267,
31;
al.,
P.
v.
et
33
111
Botsford
Van
Nev.
McNee,
90,
705;
Nev.
v.
49
110 P.
McNee
Nev.
534;
v.
Orr Ditch &
Co.
State
237 P.
Water
Silver
Lodge,
58
We do not find testimony respondent on that sev diction of a parties desire that the enter expressed eral occasions marriage. does not into a ceremonial That prove, however, considered their relations as expressed Nor does it because she immoral. follow that a desire that she did not enter into common-law such a marriage. Marriage, C.J.S., page sec. 914. 55 presumption marriage,
The is in favor of a valid arises when continuous cohabitation is shown. supra. Bernardi, In Parker v. De the instant case not years only many cohabitation, we do have evidence proof in but addition reputed community
were to be man and wife in the they resided, where and had been so considered for separation. many years prior require to their It would convincing cogent proof the most to overcome such evidence it presumption raises. We are satis-
281 conclusion. reached proper fied that the trial court argues that if common-law appellant next marriage the trial did in fact exist between parties, awarding of divorce to in a decree court erred showing cruelty. respondent upon her of extreme ground considering cruelty as a of divorce “In extreme negative, given cautiously than it rather courts have difficulty giving in an affirmative definitions. cruelty from the fact that affirmative definition arises term; frequently depends upon a relative its existence and the the character refinement of the parties, depend upon reached in each case conclusion to be must savages particular ‘We do its own facts. not divorce they other,’ because are such to each and barbarians Supreme Pennsylvania v. said the Court Richards no Richards. ‘We can exercise sound such (divorce cases) studying cases without the acts com- of in connection with the character of plained the parties, jury and for we the common this want sense of the legal [225], Kelly 37 228.” rather than fixed rules.’ Pa. Kelly, 49, 55, 194, 195, v. 18 Nev. P. 732. Am.Rep. authority
That case is also
for two rules relative
ground
divorce; namely,
may
cruelty
to that
for
be
there
working
personal
cruelty
without
violence and such
on
health,
any
the mind
affect the
but that
event
danger
life,
the conduct
of must result in
complained
apprehension
or
limb
health or in the reasonable
of such
danger.
departed
This court has not since that case
enlarged upon
from or
those rules.
v. District
Kapp
*8
Court,
444,
235;
Nielsen,
31 Nev.
103 P.
Nielsen v.
55
663;
Miller,
425,
44,
Nev.
38 P.2d
Miller v.
3
Nev.
1069, rehearing granted,
44,
1117,
P.2d
54 Nev.
6 P.2d
44, 465,
juris
affirmed 54 Nev.
v. broadening pres- however, stated, already that the legislative v. Niel- action. Nielsen ent rule must await sen, supra. saying that understood as
We do not wish to be respondent’s of this. The evidence case fails because many years prior to the separation that for shows manifested an indifferent atti- the appellant the parties respondent’s respondent. tude This despite toward affairs; forwarding their business unstinted efforts respondent performed tasks on the ranch and in fact the assigned usually to men hired to do ranch work. This during years, many that time did for respondent During children. the one or two occasions bore seven ill, during respondent’s pregnancies, was her she only appellant’s impatience. condition served to arouse domi- testified that the respondent neering years and critical toward her. When in the later respondent was not rewarded parties prospered, light comforts, but, by by work and increased aspect indifference and hardness toward her. This up by the case was summed the trial court in the aptly many years’ experience judge remark that as a trial acquainted person he had not become with a case where given had so much and received so little. years prior separation
For some to the had resented what she felt were attentions improper another woman. think We the events related justified feeling, by her such but efforts to obtain from explanation only failure, some met not with arousing anger but resulted in his and the remark on occasion, it, get one “that if she didn’t like could she off the ranch.” related events respondent, which led
eventually separation, discussed isolated occur- impress forcibly. considered, rences do not When how- ever, indifferent, as manifestations of an harsh and sometimes hostile attitude toward the being, imprint. her well these events make considerable
288 appellant’s attitude toward We think of the birth on the occasion displayed his behavior raising question of the After their child. seventh child, drop con- matter paternity he let the of this respondent. with the tinued to live home common July left their
In she left At the time another residence. and moved to in,” “all that that she was to the appellant she stated haying, “irrigating, with the and helping had been she garden keep house, and all trying to keep was, “just ready work,” to break about and she down.” bearing directly testimony only
This is
upon
had
upon
treatment
the effect appellant’s
enough
not
that it is
insists
respondent.
health,
life,
danger
limb or
establish
and does not
We think it does.
thereof.
the reasonable apprehension
party
always expect
divorce action
that a
in a
We cannot
explicitly.
In such a matter as this
will
himself
express
judge’s
great
rely on the trial
extent
we must
to a
witnesses, and
He
and hears the
sees
impressions.
way
a witness
acquaints
in which
himself with
expresses
observe
position
himself. He is
a better
whether
the witness and
demeanor of
the conduct and
his testi
overstate or understate
the witness tends to
Wittenberg,
Wittenberg
55 P.2d
mony.
56 Nev.
v.
evidence
trial court had substantial
619. In this case the
finding,
inclined to disturb it.
we are not
make a
Mining
Co.,
93 P.2d
Tempa
59 Nev.
& Mill
v.
Porter
Spring,
Nor are we making perusal A in an award. its discretion such any neglect instance of or the record fails disclose by respondent. of the children has Respondent abuse always been solicitous of the wel apparently properly seemed, fact, fare of children and more interested her advantages them with such as could be providing afforded, appellant. record than The shows that dur ing submitting the time the evidence of wrong doing respondent, ques the trial court also tioned the witnesses. Thereafter cate gorically denied such acts and the court was apparently hearing respond after all the evidence satisfied disqualified ent was not to act as custodian. Under the abused above, say the court we cannot announced rule the facts. or misconstrued its discretion been said in view of what has think that We do not concerning been that there has the last born child above her any made for support in the allowance error parties respon- remain to this action maintenance. and maintenance. for her support sible exception order to the court’s has taken thirty-five each directing pay dollars him to the sum support of each child and maintenance month for living respondent, and to the award of property with the respondent. made to the too, complains
He is defective pre- sustained. In order to properly form and cannot be *11 necessary ascertain the it will be sent these issues the time of the and extent of the at property character give history separation parties, of and to a brief of this of their relations. aspect marriage appellant
The stated at the time 4,300 approximately owner of head in 1930 he was the 150 head of cattle and had in a commercial of sheep, thousand, eight some sixteen hundred dollars. account engaged appellant chiefly in At that time the was specu- lation, is, buying selling in the and of sheep. speculate years
The continued to until the appellant greater occupied 1936 and and of was portion beginning business, though with 1933 his time with that 1,000 operated sheep he also a band of of and between 1,200 purpose sheep head for the of wool and producing for sale. acquired approxi-
In 1933 the at a cost of appellant $3,500 mately a three-fourths in what interest was known, and will be hereafter referred to as the Kallen- bach Ranch. was a This ranch of approximately Fallon, Nevada, prior acres near her death had respondent’s been the of mother. The three- property appellant acquired represented fourths interest the one- respondent’s fourth of interest each of two sisters and the interest of one brother as heirs of Mrs. Kallenbach. interest, retained her one-fourth and at
2$6 of an undivided separation the owner was
the time of the A Ranch. Kallenbach in and to interest one-fourth acquiring ranch the this years after few fourteen some and expended improved doing. in so thousand dollars appel nature of During years 1937 the 1936 and until changed, from then operations lant’s parties separated speculating ceased herd sheep a small began operating of bands several sheep, and wool. cattle production of cattle for the began acquiring a group that time the appellant At about acquired years ranches, five to six and within the next ranches, are situate in all of which a number of small County. was estab The Kallenbach property Churchill group headquarters operating of this as the lished holdings ranches, separate became inte and thus grated operating- of the sepa unit. At the time into one using ranches from which these ration the sheep, separate operate approxi bands of four 1,000 each, cattle of mately approxi and a herd of head mately 400 head. unnecessary ranching prop- find to describe
We it only they detail, and need note here that erties improved 2,000 area, and have been exceeded acres integrating equipped all one for the purpose ranching carry operating properties unit. These rights. customary range and water ranches, and stock was equipment value of the *12 $150,000 $170,000. We be between and estimated to exactness, way learning record, have no from the with gross operation income from the what was the annual properties, fairly but a close check is furnished these deposits commercial account made to appellant’s Fallon, year deposits in a bank at Nevada. For totalling $38,150 made; year sum of were for the $31,113; 1939, $24,899; 1940, $40,300; 1938, in in in 1941, $30,121; $69,483; 1943, $78,469; 1942, in in in 1944, $63,141; $50,720; 1945, $56,514; 1946, in in 1947, $53,790. in foregoing
In description estimate of value we property have not included items of established by mortgage value. These include a note secured a in dollars, obligation the amount of twelve thousand and an by promissory evidenced a note in the amount of fifteen dollars, hundred family nor have we included a auto- mobile.
There was in addition to all the above-described prop- savings erties certain accounts, appellant admitted having his control and possession or there- abouts, approximately eighty dollars, thousand which represented sum from sales made in receipts savings withdrawals from various From accounts. this sum deducted, however, also should be twelve thou- dollars, sand which is accounted for the note and mortgage noted above. shows, too, record only on two did occasions necessary find it money. to borrow In
shortly purchasing after property, Kallenbach- he borrowed five gave thousand security dollars and as 3,400 approximately sheep, during year head of repaid 1947 he a loan approximately fourteen thou- sand dollars. have, furnish,
We do not and the record will not appellant’s money clear transactions, picture was unable or reluctant to account for separation. funds on hand at the time of Nor can we any average arrive at income, definite as to annual net as the only furnished income tax returns for years, two rough and could not do more than make a guess expenses at years. his for the other The with- drawals from his commercial account are not a reliable admittedly index since from time to time sums were withdrawn, deposited savings to be later accounts. that,
The trial court found community “There is both property belonging and separate respec- to each of the parties.” tive of in disposed following manner. The respondent was awarded the Ranch, together Kallenbach equipment with sufficient *13 given or, appellant it, the was operate in lieu thereof to thirty dol- thousand option the ranch for purchase an to provided if thirty days judgment, after within lars option take such the the should thirty dollars a small with the thousand to purchase children who lived benefit of and ranch for the herself pay to directed that the appellant with her. court immediately of ten thousand the sum the respondent dollars, seventy of thou- in addition thereto the sum and dollars, equal, installments. in annual seventeen sand award, payment court of latter the To assure the the seventy was to be that the thousand dollars declared upon property paid. until lien all of the of the making the court After this award to following appellant: award “That made of of awarded all the remainder the prop- defendant be and testified to the action and known erties described Canyon, Boyer’s Ranch, Valley, Cherry Artesian as War Springs, Springs Well, Clan Cold and Alpine, Shoshone upon specifically described and assessment Alpine, County. assessor of Churchill rolls may sheep cattle, all and “Defendant be awarded machinery, and feed racks used him equipment business, operation sheep and cattle and wher- may provided be situated that the ever same plain- machinery have in the action such farm and tiff upon equipment now the Kallenbach property operation farming used in with the connection including horse, ranch, one said saddle two head of stock horses, equivalent thereof, head milk six cows or fifty yearling sheep head of one buck.” respect
First all the has insisted judgments that two separate distinct were entered the trial court. court, shortly
The trial after the matter had been sub- mitted, signed and filed a “Decision” in which it was marriage, determined that there was a seven children marriage, born the issue that there was both com- munity separate belonging each of the *14 guilty of appellant had been respective that the parties, respond- cruelty and that extreme toward the care, custody and control of awarded the ent should be right children, visitation younger with the of the four appellant, three children were in the and since the other age years, allowed over of fourteen each would be all right live, reserving he would to choose with whom that to the other The court then stated visit. party thirty days for it would reserve for consideration children, support question of the of and maintenance separate division of the or an award from the property, and unless within property respondent, parties agreed matters, thirty days the had to these proceed court would to determine the same. The court necessary then ordered that have her costs together disbursements, with certain other costs which we will discuss hereafter. period days
Within a few after allowed court, “Opinion the court made and filed an and Deci- by repeating in which sion” all issues were disposed date, adding the decision of an earlier thereto the respondent, money awards made to both of support for her and for the maintenance and support children, making a division of the property. argues disposed that the court of the mat- ter when the first decision was filed and that there can judgment only be one final in the case. authority argument
As
for his
cites numerous cases for the rule
that
this state the oral
pronouncement
judgment
or written decision is the final
subsequent
judgment
and the
formal
is evidence of it
merely. 8794,
1929;
N.C.L.
Central Trust Co. of Califor
Mining Co.,
437,
390;
nia v. Holmes
30 Nev.
97 P.
Kondas
County Bank,
181,
1080;
v. Washoe
50 Nev.
254 P.
Hil
Hymers,
391,
ton v.
57 Nev.
290 rights parties
“the final of the determination action or It would follow an proceeding.” rights order which not determine all the does parties, or, question a future which reserves for con- determination, judgment. is not a final sideration and in a v. This court so held number of cases. State has 513; Logan, 509, King, 215; 1 Lake 16 Nev. Nev. v. Co., 405; 10 Nev. Perkins v. Sierra Nevada Silver Min. Magee al., 202, 201, et al. Whitacre et 96 P.2d v. Nev. 751; Elsman, 106 P.2d v. 54 Nev. Elsman P.2d nothing gen- 10 P.2d 963. We have to add this rule, disposes eral that a is final that nothing case, for presented issues leaves future *15 court, point except consideration out in of the to that statutory judgment of the in view definition of a this that court of all state when the does not the dispose presented case, any by pre- issues the and issue reserves by consideration, the in sented case for future it is fact entering interlocutory interlocutory an order and not an judgment. an confused Nor should such order be with judgment may require carry final a which an order to the it into effect or those instances in which court right judgment. modify reserves the to the The so-called days “Decision” few after the matter had been made a therefore, order, was, interlocutory an submitted and judgment opinion later the the and decision became of court. the judgment by form the trial of the used court respect attacked
also the in award by the to made court the of the Kallenbach following language: Ranch. The used the “The court hereby plaintiff and in the action is awarded decreed to to have the full title in and the Kallenbach Ranch together so-called, necessary the farm equipment with premises upon in machinery and used and now said the farming premises, or in of said lieu and operation days hereof, thereof, thirty and the within defendant thirty may pay the of plaintiff in the action to sum money ($30,000.00) in of dollars lawful thousand plain- America, with said sum and United States purchase a small ranch for required tiff will be children. and minor herself her benefit of remainder all defendant awarded “That the be action, described and testified properties of the Boyer’s Canyon, Cherry Valley, War and known Alpine, Wells, Clan Ranch, Springs, Artesian Shoshone upon specifically described Springs and Alpine, Cold County. rolls of the Assessor Churchill the assessment cattle, sheep, may machin- be all “Defendant awarded ery, used him operations and feed racks equipment business, sheep the same cattle and wherever of the situated, plaintiff may provided in the action be equipment machinery now as is farm have such upon in connection with Kallenbach Ranch and used ranch, including farming one said operation horses, horse, of milk head six head saddle two of stock thereof, yearling equivalent fifty cows head of or the sheep fore- one buck.” The avers that the alternative, going judgment is uncertain and is a void. therefore judgment it
The vice of such a
seems to be
rights
seem,
parties.
does not fix the
It would
however,
that unless
is defective for that
judg
reason it
be allowed
This form of
should
to stand.
involving
ment has been used and
in actions
approved
right
possession
personal
and modern
property,
*16
practice permits the use of a similar
form in other
judgment
where the
is definite
49
actions
and certain.
Judgments,
192;
C.J.S.,
73, page
sec.
Parish v. McCon
kie,
1001;
Overson,
35
84 Utah
Peterson
52
P.2d
v.
Ariz.
“The judgment and effect of a must be ascertained a construction and interpretation question of it. This a presents of law for the court. Judgments whole, give must be construed as a so as every effect to word judgment and The part. entire may roll purpose be looked to interpretation. for the of Necessary legal implications although are included not terms, adjudication not extend does but
expressed language fairly beyond used warrants. what the language governs. legal effect, used than the mere rather may doubt, ambiguity entire record In or cases Judgments a to have and considered. are be examined judgment is suscepti- intendment. Where reasonable interpretations, adopted be which two that one will ble of conclusive, reasonable, effective and it the more renders judgment facts harmonize with the and which makes the ought case, and be such to have been and law of Court, 57 Nev. Aseltine v. District rendered.” 701, 702. P.2d instance considers the this (1) respects. it is uncertain in least two That be at payment thirty upon the thousand
not clear whether Ranch, is to have the Kallenbach dollars together necessary equipment and for its with the stock operation, or, Kallenbach Ranch without the stock. (2) Ranch That it is clear whether the Kallenbach not in trust for the support awarded her. and the minor children who reside with herself position
If considers uncertain under his original judgment, complain he cannot about portion judgment. That concerned with the formal — ordered, property reads Kallenbach “It is further adjudged have, plaintiff and decreed that should and hereby given granted, and she is awarded title, right, ownership of, full decreed the and interest in and to the undivided three-fourths of that interest County Churchill, ranch in the certain located State Nevada, commonly known as and called the Kallen- Ranch, described, bach hereinafter more particularly together necessary equipment with the farm and machin- ery upon now said and used in the premises operation farming being thereof, including, limited but without to, horse, horses, two one saddle head of stock six head thereof, equivalent fifty of milk cows or the head of yearling buck, and one for and the sheep trust her her, minor children hereunder awarded to who
293 custody, her as and for elect to come within hereafter support, minor maintenance of the and said plaintiff the children, right, title, any or claim interest without defendant; or, by the in therein or on behalf of lieu hereof, thereof, days thirty and within from date may plaintiff premises to for defendant said pay immediately personal property, and said hereinbefore described, dollars, thirty of the sum thousand lawful money America, of the United in which event States plaintiff shall transfer said ranch said 'perso.nal further, to the defendant. And in which event therefrom, any property the monies so received or which acquired monies, thereafter be as a result said be likewise set aside in as aforesaid.” trust rights appellant’s
If we concede that
under
original
uncertain,
decision are
we find no such
judgment
rights
defect
the final
trial
His
court.
judgment
are
that
made explicit. Unless the result
obligations
is that
increased
have been
or his
imposed
rights
impaired by
judg
under the decision
the formal
ment,
appellant’s exception
judgment
we
think
should be overruled. We reach that conclusion despite
any
original judgment
the rule that
conflict between the
judgment
and the
adopting
formal
must be resolved
original.
Court,
the terms of the
Silva v.
District
out,
lars the Kallenbach Ranch. His *18 certain, by and the fixed and
obligation event is in that equally rights certain. judgment become his of the terms error; on this to lose who stands It is the any stock claim to the judgment eliminates the formal plain It is also purchase. elects to in the event appellant option, the exercise his appellant does not if the under the and certain rights parties are fixed is to judgment. event the original In that “together equipment, the and real property have the stock.” with the enumerated Finally, should be think the defendant we do not uncertainty any may find in complain he toas heard to Kallenbach original the as to whether the thirty stock, or, equipment the Ranch, sum and respondent as her was awarded to thousand dollars for benefit of as a trustee separate or property, will not minor The appellant and the children. herself individually. gain any event Whatever the nor lose do, rights are now fixed choose to his Ranch, give up must the Kallenbach certain. He and or, thirty stock, pay respondent equipment thou conveyed to him the Kallenbach dollars and have sand Ranch, stock. equipment plain. obligation under such circumstances is
Our
complained
is
affirm unless the error
substan
We must
done,
justice is
substantial
technical
tial. Whenever
error,
injury, will not
which has worked no
warrant
8622,
1929.
v.
Section
N.C.L.
Paterson
Con
reversal.
283; Ray
Robertson,
dos, 55 Nev.
30 P.2d
v.
76;
397, 36 P.2d
Santino v. Great American Insur
Nev.
Co.,
1000;
Mining
54 Nev.
9 P.2d
Hartford
ance
Co.,
61 Nev.
v. Home Lumber & Coal
107 P.2d
Co.
128,
resulted It his contention that is all of the property. prop- parties erty separa- at the date of possessed separate property, and had tion was his its source in the owned, by marriage, him the date of at save course, in the Kal- the one-fourth interest except, of lenbach Ranch owned respondent. court, said, trial we have reached the community separate there was both
conclusion that property belonging to each of the respective parties, opinion indicated in its it the Kallen considered community property. bach Ranch The court concluded regardless it also that character the property, properly party por could award least fault a at tion Whether of the other’s or not this property. con justified if clusion the trial court’s proper conclusion is *19 any findings theory, on and sustained is the evi dence, duty Goldsworthy it is the of this court affirm. Johnson, 355, v. 45 204 P. Nev. 505. We have in mind rule part also the that the the opinion trial court is no judgment, only of the and can be used to the court aid proper appeal. a the determination of Hunter Sut v. ton, 430, finding is, 45 P. Nev. 785. The we have above, stated and we have also set it out above almost udgment word, j the Although word for the trial court. practice, it is better perhaps the safer course actions, special findings divorce make as the basis of decree, Davis, the 1109; Davis v. 54 Nev. 13 P.2d Phelps Phelps, v. 2 Wash.2d 97 P.2d the has not complained that and cannot do now so, and so we now ques concern ourselves with these Condos, supra. tions. Paterson v. Has the con proper reached, clusion been supported is that conclusion findings by the and the evidence?
We have heretofore related some detail the facts concerning acquisition property the of the possessed by operated raising aas stock parties, venture at separation. the date of the The property Kallenbach acquired by was the first parties, but the appellant insists that it cannot be dealt with as item separate headquarters integral part it became and an of a system of perhaps ranches. This is true to a certain extent, determining but that not does forbid whether it community separate property. or is contended, we see how nor do has not ranch could, interest in the
he that the one-fourth community property. was inherited hand, three- concluded that On other we have acquired by was his sep- the appellant fourths interest testimony appellant was arate property. sheep, head of one at least four thousand that he owned $16,800 fifty time of of cattle and at hundred head Against marriage. this have his admission we purchase Ranch shortly Kallenbach after the mortgage necessary for him to his it was consummated sheep. taken into consideration Other than this we have testimony to the effect from the date of the his marriage purchase date of this conditions were extremely business, speculator and as a he in his bad profits expenses. no If there were often did not make purchase during years, price to be made these any have come from other source could not property marriage. prior appellant’s to his than accumulations probably some time true that for It also profits con 1933 the from after business say, But, as we had appar tinued to be small. resources, except ently separate the limit reached of his years stock, in later it is that when for his obvious ranching began acquiring he was additional he *20 money ready can and credit. We of some possessed conclusion than that the appellant’s capi no other reach industry operator tal, an or either a specu skill and as materially contributed to the in the stock business lator gain. eventually capital to Had this profits and the original solely from the assets resulted capital increase money and made it appellant, of stock investment separate property, the appellant’s have remained would engaged during admittedly all the the but marriage speculation opera the years in either or of this raising time stock for sale. His and skill contri tion of therefore, gains made, buted, and to the this contribu intermingled separate that from his so with became tion
297 of a of the character as to make determination estate many gains impossible. years finally the realized For earnings recognized of either a hus- it that the has been community property; a are it is also band or wife party, of either or that if the skill and efforts accepted both, gained opera- from the are essential profits management separate property, then in at tion or of community property. part profits least a the are Lake 361, 711, Lake, 74. v. 18 4 P. 7 P. There can be Nev. respondent’s no and appellant’s doubt that the efforts profits materially and skill contributed the gained. by him to attempt no was made Apparently keep separate community property segregated, the impossible it now makes to determine is that what community separate what is rule property. intermingled that under such circumstances is such prop- community properties, are considered and we erties that of this rule to be the apprehend properties the basis intermingled have mixed and that it no become so is longer possible It to determine their source. the is duty husband, manager community of as property, keep community and separate property Franke, 170, 435, segregated. v. 46 Nev. 208 P. Barrett p. Community Property, 1, Vol. deFuniak Principles 144, 61, p. 200, 77; at In re sec. also sec. Gulstine’s Estate, P.2d 628. Wash. finding supports the the evidence that
Thus community separate property, there both theory while the statute trial court’s that supporting may party at a least fault portion court award repealed, 1939, p. other’s has been Stats. property 9463, N.C.L.Supp. in view of sec. we do not believe 1931-1941, 45, p. 54, amended, chap. Stats. authority to such an court was without make award separate support of the for the property children; provides minor statute and the apart granting also set a divorce court such support for the portion wife’s husband’s *21 deemed as shall be support their children of and the studying Nor, all the cir- just equitable. after and do we cumstances, of the property and extent nature any or in this award trial court erred think respondent. other made to the advantage gained by acknowledge not to be We dividing would not that a division and the property, ranching integrated destroy only effectiveness as an its against that, operation, well. But as its value as but weighed probably need the respondent’s court property income-producing for herself some residing her, her desire to live upon with children and that of her had been her home which family. price is think the is asked to pay
We do not by excessive, purchase fixed price fact upon value the ranch. placed court was the not, therefore, by arrived at the court is The solution unfair, prop- worthy and we deem it of mention that this erty, by respondent, proceeds if from retained or the this property, support appel- devoted to the is to be respondent. children as well as the lant’s glance eighty at first the award of thousand While community as her dollars share respondent, proportion, seem out of other considera- property, compel the com- tions us that division of approve munity property. It was estimated the appellant net value that the entire was between properties $150,000 $170,000. From we this must deduct the representing thirty sum of thousand dollars as the value leaving Kanch, $120,000 of the Kallenbach a balance of $140,000. eighty Thus the sum thousand dollars community seems be more than a fair share of the On the other hand the property. accounted twenty-five savings, for some thousand dollars in in addition a twelve thousand dollar note secured mortgage, obligation and an of some fifteen hundred problem dollars. Another of this aspect that despite estimate of the value of the real and
299 ranching operations, property the personal used in the gross 1937 the to was able show that since dollars, twenty income was never under thousand fact, averaged years In of that later double that. view first, period in a of not additional that and these facts — acquire years, ten the was able to appellant more than secondly, his despite for sizeable pay properties, operating properties that cost of the was assertion the savings income, equal he admitted to almost amounting twenty-five to thousand can see dollars —we community property. no error the division of the directing pay respond In to the seventy dollars, aforesaid, ent the sum of thousand payment that the of same be the court further ordered upon a lien property appel secured all paid. The insists lant until the court authority We to make such an order. cannot without jurisdic agree, deny the would in effect court since this necessary make make such as are to effec tion to orders considering judgment of the court all tive the to the case. This also seems be circumstances of accepted generally rule that where the accord with the specified spouse, one and a court awards to property other, may money property be sum of to sub jected a lien the amount awarded. Harner to to secure Harner, 515, 264; Kellogg 238 v. v. 255 Mich. N.W. 639, 385; Bailey Bailey, Kellogg, P. 142 123 263 v. Or. 121, amended, Wash., 359, opinion 255 P. 253 P. Wash. 420; 132; 458, Parker, 203 P. Parker v. 55 Cal.App. 987; Bailey v. Bailey, Austin v. 53 N.D. N.W. Austin, 46. 143 Ark. 220 S.W. trial failed to consider insists the court judgment consequences as a whole would
what the
impoverish
be;
will
that
so
he declares
to
an extent that the
reduce his
such
operations
him and
the children
be that the benefits intended for
result will
necessarily be curtailed. More
must
and the
situation,
the actual
it is
particularly and in relation to
operate
property
lien
all
will
that
on
his
asserted
obtaining
prevent
require from
the credit he
to
his
time,
respondent,
time to
to
payments
together
support
the chil-
with the maintenance and
dren,
reduce
income that he will be unable
will so
his
asserts,
costs,
finally,
pay
and he
he is
operating
obliged
impossible
being
in the
situation
placed
buy
pay
for the Kallenbach Ranch in order to keep
ranching
yet
intact
has no
operation,
necessary
security for a loan of the
offer as
sum.
discussing
35.
In
the various awards and division
*23
already
upon
points.
we have
touched
these
necessary
already
think it
to
what we have
amplify
We
by pointing
said
out that
the trial court was
apparently
opinion
are
that
affairs
not as he
them, and we think there is evidence to sup-
described
port
already
pointed
a
such
conclusion.
It has
been
out
that the fact that
to
was able
accumulate valu-
comparatively
period,
able
a
units over
short
and at the
acquire savings
neighborhood
twenty-
in
same time
dollars,
five thousand
he
indicates that
cannot be devot-
ing
operations,
his entire income to
even
his
if appellant
operating
considers
an
expansion
cost. Further
than
this,
that, taking
point
we
out
into account all sources of
funds,
get
was able in 1947
to
under his
eighty
dollars,
control
the sum of
thousand
which is
exactly
respondent;
what was awarded to the
he
for,
given
opportunity
has asked
and been
to keep
system
by himself;
his
of ranches intact at a cost fixed
appellant enjoys annually
average gross
an
neighborhood
forty
dollars,
income in the
thousand
conceding
that half of this is net income to the
ample
it
pay
leaves him
appellant,
the cost of main-
taining
respondent’s
his children and
award. We fail
agree
that the trial court has
impoverished
and enriched
nor do
respondent,
we think the court has
productive
growing
sacrificed a
business to accom-
plish
division of the
Cunningham
property.
v. Cun-
ningham,
93,
61 Nev.
We made reference above to costs in the district court. The order made gave by the court her costs disbursements action, provided expended in further that said costs and disbursements were to include the cost of an County, abstract of the assessment rolls Churchill evidence, procuring in submitted and the cost of an abstract of the bank account of the defendant from his bank, request. at the court’s Magee al.,
In et al. v. et 60 Nev. Whitaker 201, 202, 96 P.2d 106 P.2d court “This this said: equity, clearly an action and is one in which the costs, court is vested with discretion in the assessment of under Section N.C.L. The intent of this [1929].” sitting equity rule is that when the court is a court of fixing it is not bound statute costs as other cases, may, but exercise its discretion. The court course, allowing costs, abuse such discretion in do but we allowing not think the court did so in this case *24 cost of evidence to be offered in of preparing support respondent’s case, nor in in the award of costs pre requested by evidence paring the court. appellant
The point has also made some of the costs, fact in relation to that the first cost bill was filed filed, after the “Decision” was other cost bill was filed after the court had made and entered its “Opinion and Decision.” In view of what we have said above, concerning the time within which a final, becomes allowing there is no error in timely filing “Opinion of a cost bill after the and Decision” had been entered. appellant assigned has also as error a number of
rulings by respect made the court in to the admission of evidence. We have examined each of these find no error which would affect the in appellant a substantial materially. prejudice
right, or,
him
to
which would tend
14,
respondent an
1949, we allowed
On March
against appellant’s
$1,000
attorney
of
to defend
fee
pay
accrued
respondent’s
to
appellant
ordered
appeal,
$465.41, and further ordered
hotel bill in the sum of
pay
per
for the
of
month
to
sum
$250
in her
support
the minor children
6,
custody.
614. On June
1949 we
66 Nev.
203 P.2d
respondent’s
for allowance of additional
motion
denied
monthly pay
attorney
and terminated the
fees
$250
In
66 Nev.
Subject such and the denying new trial are order motion for hereby particular affirmed. Under circumstances proper party we is that each of this case also feel that it respective appeal, and his and her own costs on this pay it is so ordered. stay
The district court of execution on the ordered filing $20,000 supersedeas stay of a bond. Such order hereby vacated.
Horsey, Badt, J., C. J., concur. Eather, J., being illness, absent because of the Gov- Taylor designated Wines, Judge ernor Hon. H. District, place. Fourth Judicial to sit in his Rehearing On Petition for July 25, 1950.
Per Curiam:
Rehearing denied.