BAKER VS. BAKER (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

In the husband's divorce action (extreme cruelty and two-year insanity), the incompetent wife was served in an Illinois sanitarium and the district court appointed a guardian ad litem associated with plaintiff's counsel. The wife's brother, her Illinois conservator, unsuccessfully moved to remove the guardian ad litem and be substituted, but was permitted to appear and conducted the defense (demurrer, answer, bill of particulars, motion to modify findings, motion for new trial, and the appeal). The husband moved to dismiss the appeal on the grounds that the foreign conservator was a stranger to the action, had not qualified as a Nevada guardian, and was not a party aggrieved. The court held that "general guardian" in Section 8549 N.C.L. 1929 means a Nevada-appointed guardian (see In re Nickals, 21 Nev. 462, 34 P. 250), but that the conservator's lack of Nevada appointment was not a fatal jurisdictional defect. Matilda Baker, not the conservator, was the appellant and the party aggrieved. The guardianship statutes (Sections 8549, 8550 N.C.L. 1929) are a shield to protect incompetents, not a sword for their injury (Carlton v. Miller). On principles of comity, the court recognized the conservator - the wife's brother, who had actively protected her rights, apparently at his own expense, and had been treated by the district court as a guardian ad litem in fact - as the proper person to prosecute the appeal. On the motion for allowances, the court reiterated that the rule requiring a husband to fund a wife's divorce appeal rests on necessity (Effinger v. Effinger, 48 Nev. 205), that his poverty is no defense where she is destitute (Jeffers v. Jeffers, 55 Nev. 69) but is considered in fixing the amount (Herrick v. Herrick, 54 Nev. 323; Black v. Black, 47 Nev. 346), and that a relative's ability to assist may be weighed. It ordered aggregate allowances of $195.

In plain language

A husband sued his wife for divorce in Reno, claiming extreme cruelty and insanity. The wife was an incompetent person confined to a sanitarium in Chicago and was served with the papers there. The Nevada court appointed a local attorney as her guardian ad litem (someone to defend her interests), but that attorney was closely associated with the husband's lawyer. The wife's brother, who had been appointed her conservator in Illinois, asked the Nevada court to remove that guardian and appoint him instead. The court refused to remove the guardian but let the brother appear and file a defense. The brother did most of the actual defending, lost, and then appealed for his sister. The decree of divorce went to the husband. The husband asked the Supreme Court to throw out the appeal, arguing the Illinois conservator had no standing in Nevada and was not a person harmed by the judgment. The court refused to dismiss. It agreed that a guardian appointed in another state is generally not recognized in Nevada, but it stressed that the real appellant was the wife herself - a person aggrieved with a clear right to appeal - not the brother. The guardianship statutes exist to protect incompetent people, and cannot be used as a weapon against them. As a matter of comity (courtesy between states) and to protect the wife, the court accepted the brother as the proper person to prosecute her appeal. It then addressed her request for money to fund the appeal, and ordered the husband to pay $195 total ($30 for reporter's notes, $65 for the transcript, and $100 attorney's fee).