DILLON VS. DILLON (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

On an appeal on the judgment roll alone, the wife challenged a decree granting the husband a divorce for extreme cruelty and denying her alimony and separate-maintenance relief. She first argued the findings must be disregarded because the record contained no proof they were served five days before signing per sec. 8784, N.C.L. The court held that although no proof of service appeared, it did not affirmatively appear that service was not made; the court will not presume irregularity in the trial court's proceedings (Schwartz v. Stock, 26 Nev. 128). She next contended the denial of alimony was unsupported because the court made no finding, under sec. 9463, N.C.L. Supp. 1943-1949, as to the condition in which the parties would be left by the divorce. No factual issue on that point had been raised in the pleadings. Applying the rule that, on all facts properly pleaded, the appellate court will imply a finding in favor of the judgment in the absence of express findings (Dutertre v. Shallenberger, 21 Nev. 507; Moore v. Rochester W. M. Co., 42 Nev. 164), the court held that a fortiori it would presume the trial court gave proper regard to a matter addressed to it solely by statute and not raised by the parties. The judgment was affirmed.

In plain language

A husband sued his wife for divorce on the ground of extreme cruelty, and the wife answered and asked for separate maintenance. The court granted the husband a divorce and denied the wife both her requested relief and any alimony. She appealed, but only on the 'judgment roll' - a limited record that does not include the trial testimony. She first argued that the court's written findings were invalid because the record did not show they were served on her five days before the judge signed them, as a statute required. The Nevada Supreme Court answered that while the record did not show service was made, it also did not show service was NOT made. Because a court will not presume that the trial court did something irregular, the missing proof did not help her. She next argued that the denial of alimony was not supported by any finding about 'the condition in which the parties would be left' by the divorce, as the alimony statute mentions. But the court noted she had not raised any factual issue about this in her pleadings. Under settled Nevada law, when a judgment is entered, the appellate court will imply the findings needed to support it. So the court presumed the trial judge properly considered the parties' condition - especially since it was a matter raised only by statute and not by the parties - and affirmed the denial of alimony.