CIPOLLA VS. CIPOLLA (DIVORCE)

Key holdings

Practitioner summary

Augustine Cipolla appealed from an order denying his NRCP 60(b) motion to set aside a default divorce judgment. The plaintiff had filed for divorce in July 1966 and obtained a restraining order causing the defendant to leave the home, but a week later asked him to return, and the parties lived together continuously until March 1, 1968. On that morning, without notice to the defendant, the plaintiff obtained a default and an immediate divorce, the decree permanently enjoining the defendant from the premises where the parties had continued to live together for over 19 months. Five days later the defendant moved to set aside the default, asserting surprise and supporting the motion with an affidavit alleging a meritorious defense existing when the complaint was filed and the fact of continuous cohabitation. Hotel Last Frontier v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963). The plaintiff filed no counteraffidavit. The court held that on the record presented the motion should have been granted: it was timely, the defendant had every reason to be surprised, and he showed a meritorious defense. Smith v. Smith, 82 Nev. 384, 419 P.2d 295 (1966). The court declared that to condone the manner in which the plaintiff obtained her default judgment would reduce the judicial process to a mockery.

In plain language

Mabel Cipolla sued Augustine Cipolla for divorce in July 1966 and, when she filed, obtained a restraining order that caused Augustine to move out of the family home. About a week later, however, Mabel asked him to come back, and the couple lived together continuously for the next 19 months, until March 1, 1968. On the morning of that day, without any notice to Augustine, Mabel went to the courthouse with her attorney, took a default against Augustine, and obtained an immediate divorce. She then returned home and handed Augustine a copy of the decree, which permanently barred him from the home where they had been living together the whole time. Five days later, Augustine moved to set aside the default judgment, asserting surprise (among other grounds) and supporting the motion with his affidavit showing a meritorious defense and the fact that the couple had lived together continuously since the complaint was filed. Mabel filed no opposing affidavit. The Nevada Supreme Court reversed the denial of Augustine's motion. On this record, the motion to set aside the default should have been granted: it was timely filed, Augustine had every reason to be surprised (and was), and he had shown a meritorious defense. The court stated bluntly that to condone the manner in which Mabel obtained her default judgment would reduce the judicial process to a mockery.