ALLEN VS. ALLEN (DIVORCE)

Key holdings

Practitioner summary

Plaintiff appealed from a judgment denying her publication-service divorce action for nonsupport and from denial of new trial; the defendant defaulted and counsel appeared below as amici curiae to test the case. The amici contended (1) no individual named Wilfred P. Allen existed - Dr. Harrison G. Dyar or another impersonated him at the September 5, 1906 marriage - and (2) alternatively the plaintiff's long adulterous conduct with Dyar defeated her claim. Of approximately 250 assignments, the bulk failed because objections noted at depositions were not urged at trial and no rulings were obtained; an objection to six depositions as a whole was properly overruled since each tended to prove the impersonation or the adultery. Applying Dixon v. Miller, 43 Nev. 280, the court held conflicting evidence supported the findings: the concealed Grand Canyon rendezvous, the never-seen husband with a general-delivery address, the Dyar-funded $1,800 Philadelphia bank account opened in Allen's name without his participation, the fabricated letters drafted by plaintiff and Dyar for Allen to copy and sign, the trilobite nickname traceable to the entomologist, and the joint relocation to Reno with simultaneous divorce filings. The trial court's conclusions that plaintiff and Dyar had been living in adultery and that Wilfred P. Allen was a product of their minds were not merely supported - the court stated no other judgment could properly have been rendered. Judgment affirmed; rehearing denied, the court reiterating that deposition objections must be renewed at trial (McLeod v. Miller & Lux, 40 Nev. 447) and that the cumulative chain of circumstances sustained the result.

In plain language

Wellesca Pollock Allen sued in Washoe County for a divorce from Wilfred P. Allen on the ground of nonsupport, serving him only by publication. He never appeared, and the circumstances looked suspicious enough that the trial court asked attorneys to participate as friends of the court. After a trial generating a thousand pages of evidence, the court denied the divorce, concluding either that no such person as Wilfred P. Allen existed at all - that Dr. Harrison G. Dyar, a government entomologist with whom the plaintiff had been intimately connected for years, or someone else had impersonated the groom at the 1906 Richmond, Virginia ceremony - or that the plaintiff had been living in adultery with Dr. Dyar for years before the claimed nonsupport. No relative or friend of the plaintiff had ever seen the supposed husband; Dr. Dyar had financed her home, her bank-account fiction in Allen's name, and the births of her three children, and had followed her to Reno where both simultaneously filed divorce suits. The Nevada Supreme Court affirmed. Most of the roughly 250 claimed errors failed because objections made during depositions were never renewed at trial. On the merits, the evidence was conflicting, and under settled Nevada law a trial court's judgment supported by substantial evidence will not be disturbed. Reviewing the long chain of circumstances, the court concluded not only that substantial evidence supported the judgment but that no other judgment could properly have been rendered. A rehearing was denied.