FAGIN VS. FAGIN (DIVORCE)

Key holdings

Practitioner summary

The court reviewed an order setting aside a defective default divorce decree under NRCP 60(b). Regardless of whether the defendant should be regarded as personally served, it was within the district court's discretion to set aside the default under NRCP 60(b). The discretion to set aside a default is broad and will not be disturbed absent a clear abuse; because the underlying policy is to decide each case on its merits, an appellate court is more likely to affirm an order setting aside a default than a refusal to do so, and such an order will be reversed only in extreme cases. Hotel Last Frontier Corp. v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963). The defendant's severe rheumatoid arthritis, her distress over the distant proceeding, her inexperience in litigation, and her reliance on mistaken legal advice supported the district court's exercise of discretion; although the court condemned her deceitful avoidance of personal service, it found no abuse of discretion warranting reversal. Remaining issues of attorney fees, support, maintenance, and costs were left to the trial court.

In plain language

Harold Fagin moved from New York to Las Vegas in January 1973 and, six weeks later, filed for divorce from Ruth, his wife of 36 years. On the advice of a New York attorney that Nevada courts would lack power over her if she avoided being served, Ruth twice thwarted a deputy sheriff's attempts to personally serve her, once even denying her own identity and claiming to be her own sister. Unable to serve Ruth personally, Harold served her by publication and mailed the papers, which she refused. A default divorce decree was entered, but it was defective because it was entered one day too early. Harold then remarried. Within six months, Ruth moved under the civil rules to vacate the default and decree and to file an answer, arguing the judgment was void for defective service and that she should be relieved on grounds of mistake, inadvertence, or excusable neglect. The district court granted her motion. Harold appealed, arguing Ruth should be estopped by her deceitful evasion of service. The Nevada Supreme Court affirmed. It did not need to decide whether Ruth had effectively been served, because in either event it was within the district court's broad discretion to set aside the default under the rules. The court stressed the policy of deciding cases on their merits and that appellate courts are more likely to affirm an order setting aside a default than one refusing to do so. Given Ruth's severe arthritis, her distress, her inexperience with litigation, and her reliance on her attorney's (mistaken) advice, the district court did not abuse its discretion, even though the court expressly condemned her deceitful avoidance of service. Issues of fees and support were left to the trial court.