HALAMA VS. HALAMA (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

This appeal challenged the denial of a change of venue in a divorce action, and the court reversed. The appellant moved under NRS 13.040 - which provides that an action "shall be tried in the county in which the defendants, or any one of them, may reside at the commencement of the action" - and the district court denied the motion on the grounds that (1) it had discretion to do so, (2) it had previously entered a temporary order, and (3) the appellant had submitted to jurisdiction by filing an answer. The court held that a motion for change of venue under NRS 13.040 based on the defendant's residence does not permit an exercise of discretion by the district court. Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947); Williams v. Keller, 6 Nev. 141 (1870). The "previously entered" order was a temporary support order entered the same day the venue motion was filed, at a hearing at which neither the appellant nor his counsel appeared, and no authority permitted reliance on such an order to deny the motion. Finally, the record showed no answer had been filed, and in any event the filing of an answer does not interfere with a defendant's right to demand a change of venue. Byers v. Graton, 82 Nev. 92, 411 P.2d 480 (1966). Although the respondent asserted the district court had made a factual determination of the appellant's residence, the order made no such finding. The court reversed and remanded for a determination of the appellant's residence and further proceedings.

In plain language

In this divorce action, the appellant asked the district court to move the case to a different county, based on a Nevada venue statute (NRS 13.040) that says an action should be tried in the county where the defendant resides when the action begins. The district court denied the request for change of venue on three grounds: that it had discretion to deny the motion; that it had already entered a temporary order in the case; and that the appellant had submitted to the court's jurisdiction by filing an answer. The Nevada Supreme Court reversed, rejecting all three grounds. First, the court held that a change-of-venue motion based on the defendant's residence under NRS 13.040 does not allow the district court to exercise discretion - if the statute applies, venue must change. Second, the "previously entered" order the district court relied on was just a temporary support order entered the same day the venue motion was filed, at a hearing where neither the appellant nor his counsel appeared. The court knew of no authority allowing reliance on such an order to deny a change of venue. Third, the record showed the appellant had not actually filed an answer - and, in any event, filing an answer does not waive a defendant's right to demand a change of venue. The court also noted that, although the respondent suggested the district court had found the appellant's residence to be in the current county, the district court's order made no such factual determination. The court reversed and sent the case back for a determination of the appellant's residence and further proceedings.