GREY VS. GREY (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Per Curiam. The court reversed the denial of a change of venue in a divorce action, holding the tardy filing resulted solely from the district court clerk's procedures. A change of venue as of right under NRS 13.040 requires a timely demand under NRS 13.050(1) - filed 'before the time for answering expires,' i.e., within 20 days of service (NRCP 12(a)); see Kenning Car Rental v. Desert Rent-A-Car, 105 Nev. 118, 771 P.2d 150 (1989); Hood v. Kirby, 99 Nev. 386, 663 P.2d 348 (1983). The parties agreed service occurred July 7, 1994, making the demand due July 27, 1994; the clerk did not stamp the venue documents filed until August 1, 1994. The record - a notarized affidavit of mailing, a July 22 transmittal letter, and a July 27 return receipt to the opposing party - supported an inference that the clerk's office received the documents before the deadline, and clerk personnel testified they do not usually date-stamp documents on receipt and had no recollection of the receipt date. Finding the receipt date ambiguous, the court resolved the ambiguity in the filer's favor under Huebner v. State, 107 Nev. 328, 810 P.2d 1209 (1991), and admonished the clerk that continued disregard of the Huebner directive to date-stamp documents on receipt would result in sanctions. The order was vacated and remanded to determine Roxanne's county of residence at the commencement of the action; if she resided in Carson City, she is entitled to a change of venue as of right (see Damus v. Avis Rent A Car, 108 Nev. 46, 824 P.2d 283 (1992); Halama v. Halama, 97 Nev. 628, 637 P.2d 1221 (1981)).

In plain language

Louis Grey filed for divorce (and sought custody of the couple's children) in the Eighth Judicial District Court in Clark County. His wife, Roxanne Grey, wanted the case moved to Carson City (the First Judicial District), where she said she lived, and mailed in her change-of-venue papers. The papers were not stamped 'Filed' by the district court clerk until August 1, 1994 - three days after the deadline for a venue change as of right. The district court denied the venue change as untimely. Roxanne appealed, and the Supreme Court reversed. A change of venue as of right must be requested before the time to answer expires (here, by July 27, 1994). Roxanne's evidence - a notarized affidavit that she mailed the papers on July 22, a transmittal letter dated July 22, and a signed return receipt showing Louis received his copy on July 27 - supported an inference that the clerk's office received her papers before the deadline. The clerk's staff admitted they do not usually date-stamp documents when received and had no memory of when these arrived, so the date of receipt was, at best, ambiguous. Following its earlier decision in Huebner v. State, the Court resolved that ambiguity in the filer's favor, finding the late filing was caused solely by the clerk's office procedures, not by any delay on Roxanne's part. The Court admonished the Eighth Judicial District Court clerk that continued failure to date-stamp documents on receipt - contrary to the Huebner directive - would result in sanctions. It vacated the order and remanded, directing the district court to determine Roxanne's county of residence when the action began; if she lived in Carson City as alleged, she is entitled to a change of venue as of right.