GEORGE VS. GEORGE (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Appeal by the wife (defendant) from a judgment granting the husband (respondent) a divorce on the ground that the parties had lived apart continuously without cohabitation for more than five years (a discretionary ground under Stats. 1931, c. 111, p. 180), and from the order denying a new trial. The wife argued the husband adduced insufficient evidence for the court to exercise its statutory discretion, and that granting the divorce was an abuse of discretion given evidence (from an Ohio separate-maintenance proceeding) that the husband had been adjudged guilty of extreme cruelty and she found without fault. The court affirmed. Clarifying Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378, it held that the court exercises its discretion upon the facts shown in evidence, not upon facts not testified to, and that sufficient evidence was before the trial court. On the merits of the discretion, the court held the statute does not require the petitioning party to be without fault, and that the discretion turns not on the comparative rectitude of the spouses' conduct but on the probability of their being able to live together in a manner serving their best interests and those of society (Herrick; Smith v. Smith (R.I.), 172 A. 323; Guillot v. Guillot, 42 R.I. 230, 106 A. 801). Finding ample evidence to sustain the trial court's conclusion, the court held there was no abuse of discretion and affirmed.

In plain language

A husband sued for divorce under a Nevada statute allowing a divorce, in the court's discretion, when the spouses have lived apart continuously for more than five years without living together. He won, and the wife appealed. She argued that the husband had not put on enough evidence for the court to properly exercise its discretion, and that granting him the divorce was an abuse of that discretion - pointing out that in an earlier Ohio separate-maintenance case the husband had been found guilty of extreme cruelty and she had been found without fault. The Nevada Supreme Court affirmed. It first clarified that a trial court exercising this discretion considers the facts that are actually in evidence, not facts that were never testified to; and here there was sufficient evidence. More importantly, the court held that under this separation statute a divorce does not depend on which spouse behaved better. The statute does not require the person seeking the divorce to be free of fault. The real question is whether there is a probability the parties can live together in a way that serves their best interests and the interests of society; where long separation shows they cannot, a divorce serves those interests. Because there was ample evidence to support the trial court's conclusion, there was no abuse of discretion.