HERRICK VS. HERRICK (DIVORCE)

Key holdings

Practitioner summary

The court construed Stats. 1931, c. 111, sec. 1, which added living apart for five consecutive years without cohabitation as a ground for divorce, granting the court discretion to decree divorce "at the suit of either party." The court held the statute does not require the plaintiff to be without fault and that no such limitation may be inferred. Reading in a fault bar would render the words "at its discretion" meaningless, violating the rule that every part of a statute be given effect; the discretion conferred is a legal discretion exercised in light of all the facts. The court surveyed analogous separation statutes and decisions permitting suit irrespective of fault: Guillot v. Guillot, 42 R. I. 230, 106 A. 801; North v. North, 164 La. 293, 113 So. 852; Best v. Best, 218 Ky. 648, 291 S. W. 1032; Cook v. Cook, 164 N. C. 272, 80 S. E. 178. It distinguished the recrimination bar of Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9, noting the 1931 amendment (Stats. 1931, c. 110) already modified that rule. The phrase "subject to the same procedure and requirements" was held to refer to matters such as child custody, property, and alimony, not to defenses to the cause of action. On the constitutional point, the court held that dissolution of the marriage extinguishes the subject matter of a separate-maintenance proceeding, so the divorce did not impair the obligation of the California maintenance decree (Bushnell v. Cooper, 289 Ill. 260, 124 N. E. 521). Finding no abuse of discretion, and the wife having offered no testimony, the court affirmed.

In plain language

A husband sued his wife for divorce in Nevada, relying on a then-new Nevada law that let a court grant a divorce when a married couple had lived apart for five straight years without living together as spouses. This couple had separated in June 1923. Before the Nevada case, they had fought through three lawsuits in California: the wife won a separate-maintenance order (support of $200 a month), and two divorce suits the husband filed there were dismissed. The Nevada trial court granted the husband his divorce. The wife appealed. She argued the California rulings had already found the husband at fault for the breakup, and that a person at fault should not be allowed to use the five-year-separation law to get a divorce. She also argued that ending the marriage wrongly wiped out the California support order. The Nevada Supreme Court disagreed on every point. It held that the five-year-separation statute does not require the person asking for the divorce to be free of fault - either spouse can bring the case no matter who caused the separation. The law gives the trial judge discretion, and the fault of a spouse is just one circumstance the judge may weigh, not an automatic bar. The court also held that once a marriage is dissolved, there is nothing left for a separate-maintenance order to operate on, so the divorce did not improperly impair the California support decree. Because the wife put on no evidence of her own, the court found no abuse of discretion and affirmed the divorce.