FLEMING VS. FLEMING (DIVORCE)

Key holdings

Practitioner summary

Appeal by the plaintiff husband from an order of the Second Judicial District Court, Washoe County, denying his application for an order for publication of summons against his nonresident wife, the judge concluding from the complaint and supporting affidavit that jurisdictional facts were lacking. McCarran, J., construed Rev. Laws sec. 5838 (six months' residence in the county where plaintiff relies on his own residence) with the act of 1911 (Stats. 1911, c. 158), which defines legal residence for any right dependent on residence as actual, physical, corporeal presence during all of the claimed period, with a proviso preserving residence for one who absents himself 'with the intention in good faith to return without delay.' Held: (1) the residence required is actual residence - physical, corporeal presence - as distinguished from domicile or constructive residence; 'resided' imports permanency and continuity of actual abode in the county; (2) the proviso covers only absences under urgent necessity or with intent to return without delay, and plaintiff's indefinite absence from August 12 to November 14, 1911 with a government surveying party in Churchill County (mail forwarded from Reno, belongings left in his rooms, claimed intent to remain a Reno resident) did not satisfy it; (3) 'shall' in the 1911 act is mandatory, not permissive; (4) parties invoking the divorce jurisdiction must bring themselves clearly and affirmatively within it (Maynard v. Hill, 125 U.S. 190; Haddock v. Haddock, 201 U.S. 562). Constitutionality of the 1911 act not reached. Order affirmed.

In plain language

R. M. Fleming filed for divorce from his wife Mary C. Fleming, a New York City resident, in Washoe County on January 15, 1912, and asked the court to order service of the summons on her by publication since she lived out of state. The judge refused, finding that Fleming's own complaint and affidavit showed the court lacked jurisdiction: Fleming had arrived in Reno on July 11, 1911, taken rooms on South Virginia Street, but then left on August 12, 1911 to work with a federal surveying party in Churchill County, living in tents in the field until he returned to Reno on November 14, 1911. He appealed the refusal. The Nevada Supreme Court affirmed. The divorce statute required the plaintiff to have 'resided' in the county for six months before suit, and a 1911 law defined legal residence as the place where a person has been 'actually, physically and corporeally present' during the whole period claimed. The court held this means actual residence - real physical presence - not just a claimed legal home; keeping a room, a Reno mailing address, and an intention to return is not enough. The statute's exception for absences applies only to someone who leaves intending to return 'without delay,' and Fleming's three-month, open-ended absence did not qualify. Since he had not actually resided in Washoe County for six months, the court had no jurisdiction and properly refused the publication order.