CICERCHIA VS. CICERCHIA (DIVORCE)

Key holdings

Practitioner summary

On the husband's appeal from an order setting aside a default and divorce decree, the court reviewed relief under NRCP 60(b) and NRCP 55(c). It held such relief is addressed largely to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion (Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050; Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979), and that the rule is very liberally applied in divorce proceedings (Blundin v. Blundin, 38 Nev. 212, 147 P. 1083). The uncontroverted affidavits of the wife and her out-of-state attorney established excusable neglect: her nervous breakdown and confinement, her out-of-state counsel's mistaken belief about the time to answer, and prompt action upon learning of the default. The court addressed the imputation rule of Guardia v. Guardia, 48 Nev. 230, 229 P. 386, noting that although an attorney's inexcusable neglect is imputed to the client, the court is indulgent in setting aside defaults for an attorney's excusable neglect provided the party was not directly at fault. The wife was not directly at fault, presented a verified answer and counterclaims stating a defense on the merits, and the appellate court is not inclined to disturb an order setting aside a default where excusable neglect is supported by evidence showing a defense on the merits (Esden v. May, 36 Nev. 611, 135 P. 1185). Finding no abuse of discretion, the court affirmed.

In plain language

A husband obtained a default divorce after his wife, served in Rhode Island, failed to appear within the time allowed. Within a month, the wife moved to set aside the default and divorce, claiming mistake, inadvertence, surprise, and excusable neglect, and asked to file an answer and counterclaims for separate maintenance. She supported the motion with sworn statements: she said she had suffered a nervous breakdown from the husband's conduct, had hired a Massachusetts attorney to arrange a Nevada defense, was told a hearing would not happen for 60 to 90 days, and became bedridden until she learned a divorce had already been entered; her Massachusetts attorney confirmed he mistakenly believed there was more time to answer and that the delay was not her fault. The trial court set aside the default and divorce, and the husband appealed. The Nevada Supreme Court affirmed. It explained that granting relief from a default is largely within the trial court's sound discretion and will be reversed only for an abuse of that discretion, and that Nevada applies this relief especially liberally in divorce cases. The wife was not personally at fault, her illness was relevant, she acted immediately upon learning of the default, and she presented a defense on the merits (denying cruelty and alleging desertion). While an attorney's inexcusable neglect can be imputed to a client, the court is indulgent where the client is not personally at fault. Finding no abuse of discretion, the court upheld the order setting aside the default.