BARBER VS. BARBER (DIVORCE)

Key holdings

Practitioner summary

Action for divorce for extreme cruelty in which the wife prevailed; the husband appealed from the order denying his motion for a new trial, having pleaded in bar a prior decree of the Supreme Court of the District of Columbia (May 9, 1922) granting him a divorce a mensa et thoro for the wife's desertion and cruelty. Ducker, C.J., held: (1) admission of the wife's rebuttal evidence that the attorney who appeared for her in the D.C. proceeding lacked authority was error - the recital of appearance in the decree creates a presumption of due authorization not open to evidence aliunde, and on collateral attack an attorney's authority to appear is conclusively presumed (Deegan v. Deegan, 22 Nev. 185, 37 P. 360; distinguishing direct from collateral attack per Van Fleet and E. Martin & Co. v. Kirby, 34 Nev. 205, 215); the D.C. decree, rendered with complete jurisdiction, must be accorded the res judicata effect of a state-court judgment (Embry v. Palmer, 107 U.S. 3); (2) without deciding whether the cruelty issues were actually litigated, the decree's legal effect estopped the wife from acquiring a separate Nevada domicile: a wife may acquire a separate domicile only where necessary or proper, as where the husband has given cause for divorce (Cheever v. Wilson, 9 Wall. 108; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810), and the D.C. adjudication in the husband's favor negatived such justification; and (3) domicile of one of the parties being essential to jurisdiction to dissolve the marital status (Aspinwall), the district court was without jurisdiction to try the action. Judgment reversed; rehearing denied per curiam.

In plain language

A wife who had left her husband in Washington, D.C. and moved to Reno obtained a Nevada divorce for extreme cruelty. The husband had pleaded, as a bar to her suit, a decree he had already won in the Supreme Court of the District of Columbia on May 9, 1922: a legal separation 'from bed and board' based on the wife's desertion and cruelty. At trial the wife tried to undermine that decree with testimony that the attorney who appeared for her in Washington had acted without her authority. The trial court found the husband's prior-decree defense unproven, granted the wife a divorce, and denied his motion for a new trial. He appealed. The Nevada Supreme Court reversed. First, the wife's attempt to attack the D.C. decree in this proceeding was a collateral attack, and against a collateral attack an attorney's authority to appear for a client is conclusively presumed; admitting her contrary testimony was error, and the D.C. court had complete jurisdiction. Second, and decisively: a wife may acquire a domicile separate from her husband only when it is necessary or proper - for instance, when the husband has given cause for divorce. Here the D.C. court had adjudicated the marital wrongs in the husband's favor, and the legal effect of its separation decree was to prevent the wife from acquiring her own Nevada domicile for divorce purposes. Because domicile of a party is essential to a Nevada court's power to dissolve a marriage, the district court lacked jurisdiction, and the judgment was reversed. A petition for rehearing was denied.