GARDNER VS. GARDNER (DIVORCE)

Key holdings

Practitioner summary

Appeal by defendant husband from a decree of divorce for extreme cruelty (with custody of the minor child to plaintiff wife) and from denial of his new-trial motion, on assigned errors of law at trial and insufficiency of the evidence. Bonnifield, J., affirmed. The court declined to decide whether misjoinder/failure to separately state causes under the closing paragraph of Gen. Stats. sec. 3086 is demurrable, because all objections to a complaint except jurisdiction and failure to state facts sufficient to constitute a cause of action are waived by answering and raising issues of fact (Lonkey v. Wells, 16 Nev. 271; Hammersmith v. Avery, 18 Nev. 225; Bliss, Code Pleading sec. 417). The complaint - alleging threats on the wife's life and near-daily false charges of infidelity from March 3 to April 17, 1894, combined with drunkenness and gambling, impairing her health and forcing separation - stated a cause of action for extreme cruelty. On the evidentiary point, admission of testimony about post-filing conduct was not reversible: the findings rested on pre-filing conduct, and admission of incompetent evidence is not reversible where the finding was not based on it (McDonald v. Jacobs, 85 Ala. 64; Mitchell v. Bromberger, 2 Nev. 345, through State v. Lewis, 20 Nev. 333). Affirmatively, specific acts of cruelty within the period alleged, though not specifically pleaded, and facts occurring before or after suit brought, are admissible as explanatory of and giving weight and color to the acts averred (2 Bishop, Marriage, Divorce and Separation secs. 1442, 1443, 1451; Doughaday v. Crowell, 3 Stockton (N.J.) 210). Assignments not argued were not considered (Allison v. Hagen, 12 Nev. 38); the conflicting evidence tended to prove the cruelty found, and the judgment and order denying a new trial were affirmed.

In plain language

A wife sued her husband for divorce, and the trial court granted her a divorce on the ground of extreme cruelty and awarded her custody of their minor child. The husband appealed, arguing that the complaint improperly jumbled together two grounds for divorce (failure to provide and extreme cruelty), that the court wrongly admitted evidence of his conduct after the suit was filed, and that the evidence was too weak to support the decision. The Nevada Supreme Court affirmed. It held that once the husband answered the complaint and went to trial on the facts, he waived his technical objections to how the complaint was drafted - the only objections that survive answering are lack of jurisdiction and failure to state any cause of action at all. The complaint here was sufficient: it alleged threats against the wife's life, and that beginning about March 3, 1894 at Wellington, Lyon County, the husband falsely and almost daily accused her of improper conduct with other men, which along with his drunkenness and gambling caused her great bodily pain and mental anguish, impaired her health, and forced her to stop living with him on April 17, 1894. The court also held that while conduct occurring after a divorce suit is filed cannot itself be a ground for divorce, evidence of such conduct is admissible to give character and color to the acts of cruelty that are alleged and proved. Although the evidence was conflicting and not a very strong case, it tended to prove the cruelty found, and the court would not disturb the findings.