GUARDIA VS. GUARDIA (DIVORCE)

Key holdings

Practitioner summary

Appeal from a default divorce decree and from the order denying the defendant wife's motion under the surprise/inadvertence/excusable-neglect statute to vacate it. The nonresident defendant was personally served in California in lieu of publication; default and decree (custody to defendant, $30 per month child support until further order) were entered October 13, 1923; her motion to vacate, filed October 15, was denied November 3, 1923. Sanders, J., acknowledged that the statute empowering courts to set aside default judgments is remedial and liberally construed (Bowman v. Bowman, 47 Nev. 207, 217 P. 1102), especially in divorce actions (Blundin v. Blundin, 38 Nev. 212, 147 P. 1083), but held: counsel's miscalculation of the time to appear is not sufficient ground; the retained attorneys' admitted failure to file the client's affidavit for suit money and counsel fees was inexcusable, pure negligence; and while attorney negligence is generally imputed to the client (23 Cyc. 939; Harper v. Mallory, 4 Nev. 447), with an indulgent exception for excusable neglect where the party is not at fault, relief was properly denied here because no meritorious defense appeared - both parties sought a divorce for desertion, no property was involved, the tendered cross-complaint sought $60 per month support while the decree already secured custody and $30 per month (payment arranged through the husband's mother), and a prior Los Angeles separate-maintenance order of November 14, 1921 ($40 per month) had been substantially complied with. No abuse of discretion; order affirmed.

In plain language

Harry Guardia sued his wife Myra for divorce in Washoe County on August 16, 1923, on the ground of desertion. Because she lived in California, he had her personally served there (in place of publication) on September 1, 1923. She never formally appeared, and on October 13, 1923 her default was entered and the husband was granted a divorce that same day; the decree gave the wife custody of their infant child and ordered the husband to pay $30 per month for the child's maintenance and education. Two days later the wife moved to set aside the judgment, blaming surprise, inadvertence, and excusable neglect: her Reno attorneys had miscalculated the deadline and had failed to file an affidavit she sent them for a motion for suit money. The trial court refused, and she appealed. The Nevada Supreme Court affirmed. Although statutes allowing courts to set aside defaults are remedial and liberally construed, especially in divorce cases, an attorney's mere miscalculation of the time to appear is not enough - otherwise virtually no default would stand - and the attorneys' failure to file the affidavit was plain negligence, which is generally imputed to the client. The court also saw little real harm: both parties apparently wanted a divorce on desertion grounds; there was no community or separate property involved; the wife already had custody and $30 per month for the child (with the husband's mother arranged to guarantee payment); and reopening the case could affect only her incidental claim to alimony. On those facts the trial judge did not abuse his discretion in letting the default judgment stand.