BOZELLI VS. BOZELLI (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Ray obtained a divorce on the ground of one year's separation without cohabitation under NRS 125.010(9), effective July 1, 1967. The action was commenced March 30, 1967, before the amendment reducing the required separation period from three years to one year; the parties had been separated about nine months when suit began and more than two years by the August 1968 trial. The district court allowed Ray to amend his complaint to allege one year's separation and granted the divorce on that ground, which Hazel assigned as prejudicial error because the ground did not exist when suit was commenced. The court held the record showed the separation resulted from the voluntary act of at least one of the parties (Ray). Caye v. Caye, 66 Nev. 78, 87, 203 P.2d 1013 (1949); Issarescu v. Issarescu, 82 Nev. 239, 415 P.2d 67 (1966). The pendency of litigation between the parties does not interrupt or destroy their separation. Benson v. Benson, 66 Nev. 94, 101, 204 P.2d 316 (1949). The court acknowledged that a new cause for divorce not in existence when suit was started should be introduced by supplemental pleading under NRCP 15(d), rather than by amendment, since an amended pleading relates back under NRCP 15(c) and asserts facts existing at the original filing. Las Vegas Network v. Shawcross, 80 Nev. 405, 395 P.2d 520 (1964). But because no useful purpose would be served by reversing on that distinction (the case would simply be retried with the same result), the court treated the amended complaint as a supplemental complaint. Cf. Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969). The court also rejected the contention that Ray failed to prove Nevada residence, the record showing otherwise.

In plain language

Ray was granted a divorce from Hazel on the ground that the couple had lived apart for one year without cohabitation. There was a timing wrinkle: when Ray filed suit in March 1967, Nevada law required a three-year separation, but effective July 1, 1967, the statute was amended to require only one year. By the time of trial in August 1968, the parties had been separated more than two years. The trial court let Ray amend his complaint to allege one year of separation and granted the divorce on that ground. Hazel argued this was error because the one-year separation ground did not exist when the suit was started. The Nevada Supreme Court affirmed. It found the separation resulted from the voluntary act of at least one party (here Ray), which satisfies the separation ground, and that the pending litigation between them did not interrupt or destroy their separation. The court agreed that, technically, because the one-year ground arose after the suit began, it should have been introduced by a 'supplemental' pleading rather than an 'amended' one (an amended pleading relates back to the original filing date and asserts facts that existed then). But it concluded no useful purpose would be served by reversing on that technical distinction, because the case would simply be retried with the same result. The court therefore treated the amended complaint as a supplemental complaint. It also rejected Hazel's contention that Ray failed to prove Nevada residence, finding the record showed otherwise.