GABLER VS. GABLER (DIVORCE)

Key holdings

Practitioner summary

The husband appealed from a decree granting the wife a divorce and child custody, the dispositive issue being whether, under the rule of comparative rectitude, the record supported awarding the divorce to the wife as the party less at fault. Sec. 9467.01, N.C.L. 1931-1941 Supp., provides that when both spouses have been guilty of wrongs constituting grounds for divorce, the court shall not for that reason deny a divorce but may, in its discretion, grant it to the party least in fault. The wife charged mental cruelty; the husband charged adultery. The proof on both charges was confined to the wife's undisputed testimony; she admitted a course of adultery with a married man beginning about a year before suit, giving rise to an unrebutted implication of a deliberate course of conduct. The court observed that adultery is not, per se, a graver matrimonial delict than cruelty; the degree of fault must be determined on the facts of each case. Reviewing the wife's brief testimony about the husband's conduct - principally his refusal to discuss the matters troubling her - the court concluded it need not decide whether the proof sufficed to establish grounds for divorce, because such casual and scanty proof wholly failed to support any determination that the husband was the party greater in matrimonial fault. The court reversed and remanded with instructions that judgment be entered for the defendant husband in accordance with the prayer of his answer.

In plain language

In a divorce case, the wife charged the husband with mental cruelty, and the husband charged the wife with adultery and asked that the divorce be denied. The trial court granted the divorce to the wife as the party less at fault, under Nevada's 'comparative rectitude' statute, which lets a court grant a divorce to the party least in fault when both spouses have grounds. The husband appealed. The wife admitted on cross-examination that, beginning about a year before suit, she had engaged in acts of adultery with a married man. Her testimony about the husband's cruelty was brief: essentially that he refused to discuss her concerns about the marriage, laughed off her worries, seemed more interested in his business, kept a large, frightening dog over her objection, belittled her interest in religion, and was absent (apparently out drinking) the night their daughter was born - all of which she said left her frustrated and affected her health. The Nevada Supreme Court reversed. It did not decide whether the wife's proof was even enough to establish grounds for divorce. Instead, it held that this 'casual and scanty' proof of the husband's conduct wholly failed to support the trial court's determination that the husband was the party greater in matrimonial fault, especially against the wife's admitted, apparently deliberate course of adultery. The court noted that adultery is not automatically a graver fault than cruelty; the degree of fault must be judged on the facts of each case. It reversed and remanded with instructions to enter judgment for the husband.