BAKER VS. BAKER (DIVORCE)

Key holdings

Practitioner summary

On the wife's appeal from a divorce granted to the husband on the three-year separation ground, the court addressed domicil, discretion to grant the divorce, and alimony/property. On residence, it reaffirmed that jurisdiction requires physical presence for the whole statutory period accompanied by intent to make Nevada a permanent or indefinite home (Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872). Physical presence was uncontradicted; the bona fides of intent was conflicting, but the court could not say the finding of valid Nevada residence was clearly wrong, as substantial evidence supported it. On granting the divorce, the court applied the settled rule that discretion under the separation ground turns not on comparative rectitude but on the probability of the parties living together for their best interest and that of society (George v. George, 56 Nev. 12, 41 P.2d 1059; Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581; Fausone v. Fausone, 75 Nev. 222, 338 P.2d 68). Given the husband's testimony that reconciliation was impossible, the court did not abuse its discretion in granting the divorce despite the wife's willingness to reconcile and the lack of proven fault on her part; the supporting finding would be presumed from the evidence (Dillon v. Dillon, 68 Nev. 151, 227 P.2d 783). On alimony and separate property, the court held that both an award of alimony and the setting aside of any portion of the husband's separate property (his partnership interest) were matters within the trial court's discretion; on the record - where the husband continued substantial support during separation, was ordered to pay $350 per month in child support, and was ordered to convey his interest in the jointly owned home to the wife - the refusals were not so clearly erroneous as to constitute an abuse of discretion.

In plain language

The husband sued for divorce on the ground that the parties had lived separate and apart, without cohabitation, for more than three consecutive years. The wife answered and counterclaimed for separate maintenance. The trial court granted the husband a divorce, gave the wife custody of the three minor children, ordered $350 a month in child support, and ordered the husband to convey his interest in the jointly owned family home to the wife. The wife appealed, challenging the court's handling of the husband's Nevada residence, the granting of the divorce despite her willingness to reconcile, and the refusal to award her alimony or to set aside part of the husband's separate property for support. The Nevada Supreme Court affirmed. On residence (domicil), it explained that jurisdiction for divorce requires physical presence for the statutory period plus intent to make Nevada a permanent or indefinite home. Although the evidence about the husband's intent was conflicting, the court could not say the trial court's finding of valid Nevada residence was clearly wrong; it was supported by substantial evidence. On granting the divorce, the court reaffirmed that with a three-year separation the key issue is the probability of the parties living together for their best interest and society's, not comparative fault. Because the husband testified reconciliation was impossible, the trial court did not abuse its discretion in granting the divorce, even though the wife was willing to reconcile and was not shown to be at fault; the necessary finding would be presumed from the evidence. On alimony and separate property, the court held both an alimony award and setting aside part of the husband's separate property were matters within the trial court's discretion, and on this record (where the husband continued substantial support and conveyed his home interest to the wife) the refusals were not clearly erroneous.