ASPINWALL VS. ASPINWALL (DIVORCE)

Key holdings

Practitioner summary

Appeal by the plaintiff husband from an order dismissing his divorce action after a demurrer for want of jurisdiction was sustained and he declined to amend. McCarran, J., construing the 1915 divorce venue statute (Stats. 1915, p. 26: suit in the county where the cause accrued, where defendant resides or is found, or where plaintiff resides under the last-cohabitation or six-month clauses), held that domicile of one party within the state is essential to jurisdiction over the marital status, and the complaint must allege it in addition to satisfying the statutory venue conditions. The complaint alleged only the defendant wife's Washoe County residence and the plaintiff's bare presence; absent averments showing the wife had acquired a domicile separate from her husband's (the exception recognized in Cheever v. Wilson, 9 Wall. 108, and modern authority), her matrimonial domicile is presumed to be his, which was not alleged to be in Nevada. Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824, distinguished: there the plaintiff wife alleged her own residence in the forum plus grounds warranting a separate domicile, with the defendant found and served in the county. Haddock v. Haddock, 201 U.S. 562, invoked for the rule that a husband cannot invest a foreign forum with jurisdiction over the status without asserting residence or domicile there. Order of dismissal affirmed; rehearing denied per curiam.

In plain language

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.