Nevada family-law case summaries

Lloyd Aspinwall sued his wife, Elizabeth Roosa Aspinwall, for divorce in Washoe County on grounds of extreme cruelty and adultery. His complaint alleged that the WIFE was a bona fide resident of Washoe County and could be found there, but as to himself said only 'that plaintiff is now in said county' - he never claimed to reside in Nevada at all. The wife demurred, arguing the district court had no jurisdiction, and the court agreed. When the husband refused to amend his complaint, the case was dismissed, and he appealed. The Nevada Supreme Court affirmed. Under the common law a wife's domicile follows her husband's, though a wronged wife may establish a separate domicile of her own when the marriage unity has broken down. Here the fixed matrimonial domicile was the husband's, in another state; alleging that the wife was living in Washoe County, without alleging facts showing she had a separate domicile, added nothing. A husband cannot travel to a state foreign to the matrimonial domicile and, without even asserting his own residence there, ask its courts to dissolve his marriage. The court distinguished Tiedemann v. Tiedemann, where the plaintiff wife had alleged her own Nevada residence together with grounds justifying a separate domicile. A petition for rehearing was denied per curiam.

A wife filed for divorce in Washoe County, alleging she had resided there for the six months the statute required. Her husband denied it, and a jury made special findings: she had actually been in Washoe County for six months before filing, but she came to Nevada for the sole purpose of getting a divorce and intended to return to Nebraska as soon as she got it. The trial court concluded it had no jurisdiction and entered judgment against her, and she appealed. The Nevada Supreme Court affirmed, rejecting the argument that a 1911 statute defining legal residence as actual physical presence had eliminated intent from the residence requirement. Reading the statutes together, the court held the 1911 act ADDED a requirement of physical, corporeal presence for the statutory period; it did not repeal the long-standing rule that residence is made up of fact plus intention - a fixed abode with the intent of remaining. Someone who is bodily present for six months but never intends to make Nevada home is not a resident for divorce purposes. Language in Whise v. Whise about parties being free to leave after judgment was explained as meaning only that a litigant may go where she pleases once the case ends, not that intent is irrelevant to residence.

A husband sued his wife for absolute divorce in Esmeralda County, swearing in his complaint that he had been a resident of the county for the six months required by law. His wife answered, the case was tried in March 1914, and the court entered judgment for the wife. Having lost, the husband then made a remarkable about-face: he asked the court to set aside the judgment and dismiss the whole case without prejudice, arguing the court never had jurisdiction because his own trial testimony showed he had not really lived in Esmeralda County for six months. The trial court refused, and he appealed. The Nevada Supreme Court affirmed. The trial court had jurisdiction over the subject matter of divorce and had found, based on the plaintiff's own sworn complaint and evidence, that he met the residence requirement. A plaintiff who invokes a court's power, declares under oath that the court has jurisdiction, and lets the case go to final judgment cannot challenge that jurisdiction only after losing. If the judgment had gone his way he would certainly have enforced it; he is estopped from attacking the court's power now.

A husband sued for divorce on the ground of extreme cruelty. His complaint alleged a long, daily course of conduct by his wife: persistent gross uncleanliness in her person and household duties, berating him when he objected, immodest exposure of her person to neighbors and servants over his protest, and constant profane, vulgar and obscene language and stories in front of the children - to the point that he removed his daughter from her mother's influence. He alleged the conduct ran through the whole marriage, was unprovoked, grew worse, destroyed his happiness and home life, shattered his nerves and impaired his health, and caused him to stop cohabiting with her around December 15, 1906. The trial court dismissed the case, holding the complaint insufficient, and he appealed. The Nevada Supreme Court reversed. Consistent with its earlier decisions and the modern trend of authority recognizing that cruelty can consist of a course of conduct inflicting mental suffering and injuring health, the court held it could not be said as a matter of law that such a complaint fails to state a cause of action for divorce on the ground of extreme cruelty. The case was sent back for further proceedings.

Gertrude Eleanor Tiedemann filed for divorce in Ormsby County on August 16, 1912, alleging that she was a resident of Carson City and that her husband was then within Ormsby County and could be found there; he was personally served the same day. After an earlier round in which the Supreme Court reinstated the service (35 Nev. 259), the husband demurred, arguing the court had no jurisdiction because neither party had resided in the county for six months. The trial court sustained the demurrer and dismissed the case, and the wife appealed. The Nevada Supreme Court reversed. The 1861 divorce statute lists five alternative places where a divorce suit may be brought, including the county in which the defendant shall 'be found.' The six-month residence requirement applies only when the plaintiff relies solely on her own residence. Because the wife alleged her own Nevada residence AND that the defendant could be found - and he was actually served - in Ormsby County, the court had jurisdiction. 'Found' means what it means in service-of-process statutes: the county where the defendant can be personally served. The court noted there was no claim of collusion, and that a 1913 amendment adding a one-year state residence requirement in some cases did not apply to this earlier-filed suit. Chief Justice Talbot concurred at length; Justice McCarran dissented.

R. M. Fleming filed for divorce from his wife Mary C. Fleming, a New York City resident, in Washoe County on January 15, 1912, and asked the court to order service of the summons on her by publication since she lived out of state. The judge refused, finding that Fleming's own complaint and affidavit showed the court lacked jurisdiction: Fleming had arrived in Reno on July 11, 1911, taken rooms on South Virginia Street, but then left on August 12, 1911 to work with a federal surveying party in Churchill County, living in tents in the field until he returned to Reno on November 14, 1911. He appealed the refusal. The Nevada Supreme Court affirmed. The divorce statute required the plaintiff to have 'resided' in the county for six months before suit, and a 1911 law defined legal residence as the place where a person has been 'actually, physically and corporeally present' during the whole period claimed. The court held this means actual residence - real physical presence - not just a claimed legal home; keeping a room, a Reno mailing address, and an intention to return is not enough. The statute's exception for absences applies only to someone who leaves intending to return 'without delay,' and Fleming's three-month, open-ended absence did not qualify. Since he had not actually resided in Washoe County for six months, the court had no jurisdiction and properly refused the publication order.

Melchoir Whise sued Esther Whise for divorce in Washoe County and won: the court granted him a divorce for extreme cruelty on June 20, 1911. Within the time the court allowed, the wife filed a notice of intention to move for a new trial on three grounds. Months later, after the deadline had passed, she asked leave to amend that notice to add a fourth ground - newly discovered evidence - claiming that Whise had moved back to Chicago and resumed the practice of his profession right after the decree, which she said proved his trial testimony about intending to live permanently in Reno was false. On April 1, 1912 the trial court let her amend, and the husband appealed that order. The Nevada Supreme Court reversed. The statute allowing relief from missed deadlines requires a showing of mistake, inadvertence, surprise, or excusable neglect, plus diligence - and the wife showed none of those. More fundamentally, the 'new evidence' was worthless for a new trial: a party's move to another state after the litigation ends does not retroactively disprove residence, since residence is a matter of intention and either party may go where they please once the case is over. At most the evidence would impeach Whise's testimony by inference, and newly discovered evidence that serves only to impeach will not support a new trial. Allowing the amendment was an abuse of discretion.

Nellie G. McCormick, one of the six children of Theodore and Margaret Winters, sued her siblings over the Winters ranch in Washoe Valley. Her mother Margaret died intestate on May 30, 1898 holding record title to ranch lands - 640 acres her husband had deeded to her in 1896 'as her separate property,' plus parcels deeded directly to her back in 1864. In January 1904, at their father's request and without payment, all six children signed a deed conveying their interests in their mother's property to him so he could deal with a pressing debt to the Washoe County Bank; Nellie was told the property 'would come back to her.' Instead, on September 3, 1904, Theodore deeded the ranch to the other children, expressly cutting Nellie out. The deed was recorded only after his death. Nellie sued, and the trial court decreed her the equitable owner of a one-sixth interest; the siblings appealed. The Nevada Supreme Court affirmed the core ruling: the children's 1904 deed made the father a trustee of Nellie's inherited interest, and his later deed cutting her off was a fraud on her rights that equity would not allow. The property was Margaret's separate estate, not community property - the 1896 deed said so expressly, and the 1864 parcels, acquired before Nevada's constitution and community property statutes, were governed by common law rules and never became community property. But the trial court gave Nellie too much: because Margaret died intestate survived by a husband and six children, the husband took one-third and the children shared two-thirds, so Nellie's interest was one-ninth, not one-sixth. The judgment was modified to one-ninth and otherwise affirmed, and a rehearing was denied.

While a divorce case was pending in the district court in Esmeralda County, the court raised the temporary alimony (alimony pendente lite - support paid while the case is ongoing) from $100 per month to $200 per month. The defendant appealed that order, and the plaintiff moved to throw the appeal out on the ground that no appeal is allowed from such an order. The Nevada Supreme Court dismissed the appeal. The right to appeal exists only where a statute grants it, and Nevada's civil practice act, which lists the judgments and orders that can be appealed, does not include orders for temporary alimony. The court had already so held in Lake v. King, and it declined to follow the California case of Sharon v. Sharon, which treated an alimony order as an appealable final judgment. Only a clear abuse of discretion by the trial court could call for relief, by other means; the appeal itself was void and gave the Supreme Court no jurisdiction.

The Crawfords married on May 6, 1883 and had five children. In late 1896, after the wife left with the children and started divorce proceedings for alleged cruelty, the couple negotiated a reconciliation: she would drop the divorce suit and the family would reunite, past differences would be forgotten, and the husband would deed property to her for the family's benefit and support. On November 4, 1896 he signed the deed, which covered all the community property and part of his separate property in Washoe County. The reconciliation failed - by his account she behaved provokingly and deserted him again on September 1, 1897, helped instigate a criminal prosecution against him, and filed a new divorce suit days later. He then sued to cancel the deed, claiming she never intended to keep her promises and that the deed was the product of fraud and undue influence between spouses. The trial court ruled for the wife, and he appealed. The Nevada Supreme Court affirmed. On actual fraud, the wife's testimony contradicted the husband's on nearly every material point, and an appellate court does not reweigh substantially conflicting evidence. On 'constructive fraud' - the presumption against transactions benefiting the dominant party in a confidential relationship - Nevada's statute lets spouses contract with each other subject to the rules governing confidential relations, but the record showed two determined adults dealing coolly and deliberately, each protecting their own interests, with the deed made to secure support for the wife and children if the husband broke his promises. As the trial judge put it, the only misplaced confidence was the couple's shared belief that they could forgive and forget. The judgment and the order denying a new trial were affirmed.

A wife sued her husband for divorce, and the trial court granted her a divorce on the ground of extreme cruelty and awarded her custody of their minor child. The husband appealed, arguing that the complaint improperly jumbled together two grounds for divorce (failure to provide and extreme cruelty), that the court wrongly admitted evidence of his conduct after the suit was filed, and that the evidence was too weak to support the decision. The Nevada Supreme Court affirmed. It held that once the husband answered the complaint and went to trial on the facts, he waived his technical objections to how the complaint was drafted - the only objections that survive answering are lack of jurisdiction and failure to state any cause of action at all. The complaint here was sufficient: it alleged threats against the wife's life, and that beginning about March 3, 1894 at Wellington, Lyon County, the husband falsely and almost daily accused her of improper conduct with other men, which along with his drunkenness and gambling caused her great bodily pain and mental anguish, impaired her health, and forced her to stop living with him on April 17, 1894. The court also held that while conduct occurring after a divorce suit is filed cannot itself be a ground for divorce, evidence of such conduct is admissible to give character and color to the acts of cruelty that are alleged and proved. Although the evidence was conflicting and not a very strong case, it tended to prove the cruelty found, and the court would not disturb the findings.

Jane Lake sued M. C. Lake for divorce on the ground of cruelty and asked for an equal division of a large amount of property she claimed belonged to the marital community; he answered that it was all his separate property. By agreement, a jury tried the divorce issues and the court reserved the property issues. The jury's verdict won Jane the divorce, and the court awarded her $150 per month for herself and $50 per month for the child, secured as a lien on real property, while finding that all the disputed property was M. C. Lake's separate estate. Jane moved for a new trial of the property issues only, was denied, and appealed from that order and from the property and alimony portions of the decree. The Nevada Supreme Court affirmed. It first held that a new trial can be granted on a severable branch of a case - here the property issues - without retrying the divorce itself. On the merits, it held that Nevada, unlike California, deliberately left out of its statute the clause making the rents and profits of separate property common property, so the rents, issues, and profits of a spouse's separate estate remain separate. Property acquired during the marriage is presumed to be community property, and the spouse claiming otherwise must overcome that presumption with clear and satisfactory proof, but profits that come mainly from separate capital - such as the rents and profits of the toll road and bridge, the Lake House, and the Lake ranch - belong to the owning spouse. Finding no error in the property findings and no abuse of discretion in the allowances, the court affirmed. M. C. Lake died while the appeal was pending, and C. T. Bender, the administrator of his estate, was substituted as respondent - which is why this chapter of the Lake divorce litigation is reported as Lake v. Bender.

A husband won a divorce from his wife on the ground of extreme cruelty, and the wife appealed. She brought up only the judgment roll - no findings and no record of the evidence - so the main question was whether the husband's complaint could support a divorce at all. The complaint alleged that beginning July 6, 1881 in San Francisco the wife falsely charged him with adultery, repeatedly accused him of infidelity and of living with other women, circulated those charges among their mutual friends, habitually vilified and abused him with opprobrious epithets, and threatened to abandon him, making his life so miserable he was forced to stop living with her. The Nevada Supreme Court affirmed. Drawing on Lord Stowell's Evans v. Evans and American authorities, the court explained that while mere rudeness, petulance, or occasional sallies of passion are not legal cruelty, there can be extreme cruelty without any physical violence: systematic abuse and humiliating insults can destroy health as effectively as blows. The statute expressly allows a husband to be the complaining party, and although the husband is usually the physically stronger, cases can exist in which a wife's conduct causes him serious mental and physical suffering. Since a case of extreme cruelty could have been proven under these allegations, and since on an appeal from the judgment roll alone everything necessary to support the judgment is presumed proven, the judgment stood. The court also rejected a technical objection to the complaint's verification.

Jane Lake had sued for divorce and for division of property she claimed was community property. The district court granted her the divorce and $150 per month alimony, but held the disputed property was her husband's separate property. She appealed from the property portion of the judgment and from the denial of her motion for a new trial on the property issues, and - swearing she was absolutely without means or credit - asked the Nevada Supreme Court to order her husband to pay her counsel fees for the appeal, up to $5,000. The husband's counsel agreed to cover the court costs and printing, but objected that the supreme court had no jurisdiction to order attorney fees, arguing there was no valid appeal and that such an order would be an exercise of original rather than appellate jurisdiction. The supreme court overruled the objections. It held that a party may appeal from a specific part of a final judgment - Jane could appeal the property ruling against her without disturbing the divorce and custody rulings in her favor - so the appeal was valid. It further held that although no statute authorizes counsel-fee allowances in the supreme court, the power is implied as incidental and necessary to the complete exercise of the court's appellate jurisdiction in divorce cases: without counsel a destitute wife could not comply with the statutes and court rules, and the court would be deprived of a necessary means of exercising its jurisdiction. The court also rejected the argument that only the district court could make such an order after appeal, disapproving the California decision in Reilly v. Reilly on that point.

A husband filed a divorce suit, but the district court ended up granting the divorce to the wife - the defendant - on the ground of the husband's extreme cruelty, awarding her all of the husband's property, requiring him to pay $20 per month to support the couple's infant child, and ordering him to pay $300 in fees to the wife's attorneys. The husband appealed, arguing first that a defendant in a divorce suit cannot get affirmative relief at all, and second that because the divorce was granted for cruelty rather than adultery or a felony conviction, the court could at most set aside a portion of his property for the wife's use during her life, not transfer it to her outright. The Nevada Supreme Court largely affirmed. Because Nevada's statute is silent on the point, the practice of the English ecclesiastical courts - under which a defendant who proved a marital wrong could obtain a decree in his or her own favor - applies as part of the adopted common law, so a divorce defendant may have affirmative relief. Reading section 27 of the divorce act together with sections 23 and 25, the court held the legislature intended to give courts power to make an equitable division of the property, including passing a guilty husband's property absolutely to the wife; the words 'for her support' state the purpose of the division, not a limit to a life interest. On this record - the answer valued the property at $1,500 and the husband's offense appeared aggravated - the court could not say awarding all the property to the wife was an abuse of discretion. But because the husband was a harness maker with a very moderate income, the $300 counsel-fee award should not have been made, and the case was sent back with instructions to strike it.

In the Lake divorce suit, the district court granted the wife a divorce and custody of the couple's child, but decided that a large estate she claimed as community property was the husband's separate property. Wanting to pursue that property fight further but having no money, she obtained a district court order requiring the husband to pay her attorney a $600 fee for the further proceedings. The husband appealed from that order, and the wife asked the supreme court for an additional $200 counsel fee - conceded to be reasonable - for defending the appeal. The Nevada Supreme Court affirmed the $600 order and granted the wife's motion. It held that the notice of the fee application should have been served on the husband's attorney rather than on the husband personally, but the error was harmless because the notice accomplished its purpose - the husband appeared through counsel and said he was ready to proceed. It held that courts may make successive counsel-fee allowances as the changing circumstances of a case demand: the statute lets the court at any time after the complaint require the husband to pay sums necessary to enable the wife to carry on or defend the suit, and a destitute wife remains entitled to proper allowances as long as the case is pending, even after a decree and even to pursue a branch of the case she has so far lost. Finally, although no statute authorizes fee allowances in the supreme court itself, the power to make them is implied as incidental to divorce jurisdiction and indispensable to guarding the rights of wives.

A young wife brought a divorce action seeking to undo her marriage. By consent, the case was referred to a referee to take the testimony, and the referee filed findings concluding she was entitled to a decree. The same day, the district court set the report aside and directed judgment for the defendant husband, and the wife appealed. The Nevada Supreme Court affirmed. Under the 1867 marriage statute, males of eighteen and females of sixteen may marry, with a proviso requiring males under twenty-one and females under eighteen to first obtain the consent of a father, mother, or guardian. The referee found that the wife was born in April 1853 and married in September 1869 - so she was over sixteen at her marriage - and that the marriage was not procured by force or fraud but entered into with her full and free consent. The court held that eighteen and sixteen are the lawful ages of consent to marry, and that a marriage by parties of those ages without parental consent is nonetheless valid and binding: like courts construing similar statutes elsewhere, it read the parental-consent proviso as not making the marriage void. The second proviso protecting the legitimacy of children applies only to marriages of persons under the statutory ages and did not change that result. Because the wife made a valid, binding marriage contract and showed no legal ground to avoid it, the judgment for the husband stood.

This was an appeal from a divorce decree entered in the Fourth District Court. Although the appeal was from the entire decree, the appellant challenged only the property portions: the district court had awarded the whole of the common property to the respondent and barred the appellant from any homestead claim. The Nevada Supreme Court reversed the property portion of the decree. It acknowledged that in a proper case a divorce court would have the power to award all the common property to one spouse and cut off a homestead claim. But here the pleadings said nothing at all about property - no property issue was presented, and the appellant might well have believed from the complaint that no such question was in the case. Even the liberal California rule that saves vague, general property averments from attack after judgment could not help, because in this case there was no averment whatsoever. The court therefore reversed the decree so far as it disposed of or gave directions concerning property, and sent the case back with leave for both parties to amend their pleadings.

A wife asked for a divorce on allegations of ill-treatment and extreme cruelty. After a full hearing of the evidence on both sides, the district judge refused the divorce, and she appealed, arguing that the findings were not supported by the evidence and that the facts as found entitled her to a decree. The Nevada Supreme Court affirmed. On the evidence, her testimony standing alone might have supported findings in her favor, but the husband contradicted and explained away its material parts, and where the testimony is conflicting and rather equally balanced, findings will not be set aside. On the law, the court took a notably broad view of what 'extreme cruelty' means: it criticized the older rule (from Morris v. Morris, 14 Cal. 76) that focused only on bodily harm, holding that there can be extreme cruelty without the slightest violence - the effect and probable consequence of the misconduct should control, and if one spouse's conduct renders the other's life miserable, a separation may be decreed even with no physical danger. But the court also held that a divorce is never granted where the complaining party willfully provoked the violence complained of, unless the violence was extremely out of proportion to the provocation. Here the findings were that the wife provoked both incidents of violence - the first when she forcibly and persistently interfered while the husband was moderately correcting their child, and the second, in which she was severely injured, when she 'needlessly and with force' provoked him while he was neither abusing nor threatening her. Those findings defeated her claim.

A wife filed for divorce in Lyon County. Her husband moved to change the venue to Douglas County: the wife herself declared her witnesses lived in Douglas County, the husband swore all of his did too, and he denied that the wife was a Lyon County resident while averring that he lived in Douglas County. The district judge conceded that the convenience of witnesses favored the change but refused it, reasoning that the husband had waived the right by answering on the merits and not objecting until after the case was set for trial. The Nevada Supreme Court reversed. Merely filing an answer to the merits does not waive a change of venue sought for the convenience of witnesses - that ground does not need to appear in the pleadings at all, and Section 21 of the Practice Act lets the court change the place of trial when the convenience of witnesses and the ends of justice will be promoted. The court also noted that the divorce venue statute confines such actions to the county where the cause occurred, where the defendant resides or is found, or where the plaintiff resides if that is where the parties last cohabited or where the plaintiff has resided for six months - and the husband's answer put the Lyon County residence basis directly in issue. On timing, there was no serious delay: the answer was filed within the statutory time and the motion was made about two months after issue was joined, at the first term of court thereafter, and the mere fact that the case had been set for trial should not by itself defeat the motion. The court ordered the case transferred to Douglas County and said the judge who tries the case could reconsider the alimony allowance.

A wife filed a divorce bill against her husband in April; he answered in early May, and on May 30 the case was set for trial on June 8. On June 4 her attorney gave notice that on June 8 - the trial date itself - he would move for an allowance out of the husband's estate as alimony pendente lite and to enable her to prosecute the suit. The husband objected that he had not received five days' notice, and the court took the motion under advisement while the trial went forward. The trial ended in a judgment for the husband. Afterward, the court ordered the husband, Jonathan L. Wilde, to pay $193.75 into court, and he appealed from that order. The Nevada Supreme Court reversed. It held that the 'due notice' the alimony statute requires means the five days' written notice prescribed for motions generally by the General Practice Act, so the court could not properly have heard the motion on only four days' notice without the husband's consent - the motion was properly laid over. But once the trial ended in a judgment for the husband, the court could no longer grant the motion at all: temporary alimony exists to give a wife who has made a prima facie case the means to establish it at trial, and after the court has determined the action was groundless, it is error to order the husband to pay the past costs and expenses of the failed suit. The court noted that where a new trial motion or an appeal is pending the district court may in its discretion still allow alimony to prosecute the case to final hearing - but here the controversy was entirely ended. It also confirmed its own jurisdiction: the supreme court hears all chancery cases regardless of amount, and the order, made after judgment, was appealable.