DAVIS VS. DAVIS (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a judgment of divorce entered on a jury's general verdict for the plaintiff husband (desertion and extreme cruelty pleaded) and from the order denying a new trial. Held: (1) the contention that the statutory 'three months' residence period means calendar months was rejected without reaching the merits - the divorce statutes have been construed to the contrary for nearly seventy years and stare decisis controls (State v. Glenn, 18 Nev. 34; Worthington v. Second Jud. Dist. Ct., 37 Nev. 212; Smith v. S.P. Co., 50 Nev. 377); (2) conflicting evidence of bona fide residence presented a jury question supported by substantial evidence (Thompson v. Thompson, 49 Nev. 375); (3) though not decided, the better and safer practice in divorce suits is for the court to make special findings as a basis for the decree, divorce partaking of the nature of an equitable proceeding; (4) admission of the Silva deposition taken in an alleged California suit was error - Nevada courts cannot take judicial notice of the existence of a California superior court, and the deposition was not shown to be part of any record certifiable under the act of Congress (28 U.S.C.A. sec. 687); (5) permitting the question whether a witness observed that the husband 'was or was not of a quarrelsome disposition' was error - character traits are proved by general reputation, not specific acts (State v. Pearce, 15 Nev. 188); (6) instructions 13 and 14, advising that a wife's refusal to live in a suitable home provided by the husband constitutes desertion, lacked any evidentiary basis because there was no testimony the husband provided a home. Reversed and new trial ordered; rehearing denied December 21, 1932.

In plain language

A husband sued his wife for divorce in Washoe County, claiming desertion and extreme cruelty. The wife denied everything, argued he was not a real Nevada resident, and asked for separate maintenance instead of a divorce. A jury returned a general verdict for the husband and the court granted him a divorce without making its own findings of fact. The wife appealed. The Nevada Supreme Court first rejected her argument that the divorce statute's 'three months' residence requirement means three full calendar months - Nevada courts had construed the statute otherwise for nearly seventy years, and unsettling that construction would upset property rights and the legitimacy of many marriages and children. It also held there was substantial evidence supporting the jury's finding that the husband was a bona fide resident. But the court reversed anyway because of trial errors: the trial court wrongly admitted a deposition taken in a California case (Nevada courts cannot take judicial notice that a California superior court even exists, and the deposition was never shown to be part of any court record), wrongly allowed a witness to be asked about a specific observation of the husband's 'quarrelsome disposition' (character traits can only be proved by general reputation), and gave two jury instructions about a wife's duty to live in a home provided by the husband when there was no evidence he ever provided one. The case was sent back for a new trial. A rehearing was denied in December 1932.