FAUSONE VS. FAUSONE (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

By the Court, Badt, J. On the wife's appeal, the court affirmed the divorce and reversed the denial of alimony. The husband was granted a divorce on the ground of three years' separation without cohabitation (NRS 125.010(9)). The court held the doctrine of comparative rectitude (NRS 125.120) did not require awarding the divorce to the wife even had she shown the husband most at fault; following Kohlsaat v. Kohlsaat, 62 Nev. 485, 155 P.2d 474 (1945), and George v. George, 56 Nev. 12, 41 P.2d 1059 (1935), confining the three-year ground to the least-at-fault spouse would render the statute an idle gesture, and the failure to make findings on the other pleaded grounds was not reversible error. On alimony, however, the court held the trial court abused its discretion: given the 56-year-old wife's poor health (severe degenerative arthritis), lack of employment prospects, eighth-grade education, and indebtedness, and the husband's earning capacity after a marriage of roughly 15 to 19 years, her necessity and his ability to pay were established, and it was error to condition alimony on the wife's being burdened with children or having become ill or disabled during the marriage. Unable to fix the amount itself, the court remanded with instructions to amend the judgment to provide reasonable support; costs to the wife.

In plain language

The wife appealed from a judgment that gave the husband a divorce and refused to award her any alimony. The husband had sued for divorce on two grounds - that the couple had lived apart for three years, and extreme cruelty. The wife denied his claims and counterclaimed, seeking a divorce based on his cruelty and desertion and asking for $150 a month in alimony. The trial court granted the husband a divorce based only on the three-year separation, made no findings about who was cruel or who deserted whom, and denied the wife alimony - reasoning essentially that a man should not have to support a woman unless she was burdened with children or had become ill or disabled during the marriage. The wife raised two arguments. First, she said the court should have awarded the divorce to her (or found her less at fault). The Nevada Supreme Court rejected this. Nevada allows a divorce simply because the couple lived apart three years, and the doctrine of "comparative rectitude" (comparing who was more at fault) does not force the court to give the divorce to the least-at-fault spouse in a three-year-separation case. If it did, the three-year separation ground would be pointless. The court also held it was not error to skip findings on the other grounds. The trial judge was actually dissatisfied with the wife's testimony and felt her own conduct had driven the husband away. Second, the wife argued the court wrongly denied her alimony, and here the Supreme Court agreed. The wife was 56, in poor health with severe arthritis, had only an eighth-grade education, no job prospects, was in debt, and had no income except help from friends and relatives; the husband, 48, had earned a good living as a radio announcer and salesman and expected to return to that work, after a marriage of roughly 15 to 19 years. Her need and his ability to pay were clear, and it was wrong to condition alimony on her having children or having become ill during the marriage. Because an appellate court cannot set the amount itself, the court affirmed the divorce but reversed the denial of alimony and sent the case back with instructions to award the wife a reasonable amount of support.