BOISEN VS. BOISEN (DIVORCE)

Key holdings

Practitioner summary

The husband appealed from a decree granting the wife a divorce for extreme cruelty (over his adultery counterclaim), awarding her custody of the parties' 18-month-old child and $50 per month child support. He first argued the district court lacked jurisdiction because the wife did not testify she intended to remain a Nevada resident for at least an indefinite period when she arrived. See Aldabe v. Aldabe, 84 Nev. 392, 441 P.2d 691 (1968). The court held that residence and intent are factual matters for the trial court's determination like any other facts. Moore v. Moore, 75 Nev. 189, 192, 336 P.2d 1073, 1074 (1959). The wife testified she left Wisconsin to obtain a divorce, intended at the time of trial to stay in Nevada indefinitely, and was physically present at her Nevada residence for roughly six months before trial; this was sufficiently substantial evidence to support the finding of bona fide residence. Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581 (1959); Wilson v. Wilson, 66 Nev. 405, 212 P.2d 1066 (1949). Her omission of the customary self-serving statement that she intended to make Nevada her permanent home upon arrival was not necessarily fatal given the physical facts evidencing that intention. The court further held the husband was estopped from raising jurisdiction for the first time on appeal: he never contested residence at trial, did not object to a lay witness's opinion that the wife was a bona fide resident, and counterclaimed for divorce assuming the court's jurisdiction. Grant v. Grant, 38 Nev. 185, 147 P. 451 (1915). Finally, the findings that the wife had not committed adultery and that custody should be awarded to the mother were supported by substantial evidence and would not be disturbed.

In plain language

A husband appealed after his wife was granted a divorce on the ground of extreme cruelty, even though he had counterclaimed accusing her of adultery. The couple married in Wisconsin in 1966 and had an 18-month-old child. They lived crowded in with the husband's large family, and the wife repeatedly demanded a place of their own, warning she would leave; the husband insisted they stay to save money. In June 1967 the wife left, driving across the country with a married man and his daughter, and ended up in Lovelock, Nevada, where she and the man lived in separate nearby apartments. The trial court found the husband's refusal to move the family threatened the wife's health (enough to establish extreme cruelty), found she had not committed adultery, and awarded custody of the child to her with $50 per month support. The Nevada Supreme Court affirmed. On the husband's argument that the Nevada court lacked jurisdiction because the wife never testified she intended to remain a Nevada resident indefinitely when she arrived, the court held that residence and intent are factual questions for the trial court, like any other facts. The wife testified she came to Nevada to get a divorce, intended to stay indefinitely, and had been physically present for about six months before trial; that was substantial evidence supporting bona fide residence, and her failure to give the customary 'self-serving' statement of intent on arrival was not fatal given the physical facts showing that intent. The court also noted the husband had never contested jurisdiction at trial, had counterclaimed for divorce assuming the court's jurisdiction, and was therefore estopped from raising the issue for the first time on appeal. Finally, the findings that the wife had not committed adultery and that custody should go to the mother were supported by substantial evidence and would not be disturbed.