HOWE VS. HOWE (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Appeal from a divorce decree of the Fourth District Court; though taken from the entire decree, the only objections presented were to the portions awarding the whole common property to respondent and barring appellant of all homestead claim. Whitman, J. (Johnson, J., not participating). The court assumed the power existed in a proper case (Miller v. Miller, 33 Cal. 353; Gimmy v. Gimmy, 22 Cal. 633; Gimmy v. Doane, 22 Cal. 635), but held no such issue was presented: the pleadings said nothing upon the question of property, and the appellant might well have believed from the complaint that no such question was made. The liberal rule of Gimmy v. Gimmy and Gimmy v. Doane (partially overruling Dye v. Dye, 11 Cal. 163) - that general, imprecise property averments not demurred to are saved, the objection being deemed waived under Practice Act sec. 45 - fails to reach a case where there is no averment at all. The decree, so far as it purported to make disposition of or direction concerning property, was reversed and the cause remanded with leave to both parties to amend their pleadings.

In plain language

This was an appeal from a divorce decree entered in the Fourth District Court. Although the appeal was from the entire decree, the appellant challenged only the property portions: the district court had awarded the whole of the common property to the respondent and barred the appellant from any homestead claim. The Nevada Supreme Court reversed the property portion of the decree. It acknowledged that in a proper case a divorce court would have the power to award all the common property to one spouse and cut off a homestead claim. But here the pleadings said nothing at all about property - no property issue was presented, and the appellant might well have believed from the complaint that no such question was in the case. Even the liberal California rule that saves vague, general property averments from attack after judgment could not help, because in this case there was no averment whatsoever. The court therefore reversed the decree so far as it disposed of or gave directions concerning property, and sent the case back with leave for both parties to amend their pleadings.