BLOUIN VS. BLOUIN (DIVORCE)

Key holdings

Practitioner summary

The sole question was whether a divorce complaint's residence allegation must state that the plaintiff was 'actually, physically and corporeally present' in the state for the statutory period. The amended complaint alleged the plaintiff 'has been and now is an actual and bona fide resident of the County of Churchill, State of Nevada, and said county has been plaintiff's domicile during all of said time.' Appellant contended physical and corporeal presence is a necessary ultimate fact that must be pleaded. Section 6405, N.C.L. 1929 defines legal residence as the place where one 'shall have been actually, physically and corporeally present ... during all of the period for which residence is claimed.' Reviewing Presson, Lewis, Fleming, Tiedemann, and Lamb, the court held that this court has consistently used 'actual,' 'physical,' 'corporeal,' and 'bodily' as synonymous terms; the allegation of an 'actual and bona fide resident' domiciled in the county for the statutory period sufficiently pleaded the required presence. Because prior orders had struck numerous documents not embodied in a settled bill of exceptions (66 Nev. 137, 206 P.2d 608), the appeal was before the court on the judgment roll alone and the merits could not be reached. The court also declined to consider an assignment of error raised for the first time in the closing brief, sec. 9385.93, N.C.L. requiring points to be stated in the opening brief. Finding no error in any matter properly presented, the court affirmed with costs.

In plain language

This appeal raised a single, narrow question about how a divorce complaint must describe the plaintiff's Nevada residence. Nevada law defines legal residence as being 'actually, physically and corporeally present' in the state for the required time. The plaintiff's complaint alleged she 'has been and now is an actual and bona fide resident' of Churchill County and that the county 'has been plaintiff's domicile during all of said time.' The appellant argued that the specific words 'physically and corporeally present' had to be pleaded as an essential fact. The Nevada Supreme Court rejected that argument. Reviewing its earlier decisions, it concluded that the words 'actual,' 'physical,' 'corporeal,' and 'bodily' all mean the same thing when describing residence for divorce jurisdiction. Alleging an 'actual and bona fide resident' therefore was enough - counsel for the other side even joked that the statute might as well have said a person must be 'bodily, bodily and bodily present.' Because earlier orders had struck most of the record, the appeal came up on the judgment roll alone, so the court could not reach the merits of the case. It also declined to consider a new claim of error that the appellant raised for the first time in the closing brief, since the rules require points to be stated in the opening brief. Finding no error in anything properly presented, the court affirmed.