HUNNEWELL VS. HUNNEWELL (DIVORCE)

Key holdings

Practitioner summary

The dispositive issue was the trial court's dismissal of the wife's cross-complaint for lack of proof of the plaintiff-husband's Nevada residence, a jurisdictional fact. The plaintiff conceded that the evidence proved his physical presence in the state for the statutory six weeks but contended it did not prove the intent to make Nevada his home, the animus that must accompany physical presence to establish bona fide residence. The court held the wife's evidence - the hotel clerk's testimony, deputy assessor's testimony of a resident (non-visitor) automobile license and payment of personal property and poll taxes, statements of intent to reside, the husband's prior testimony, and his verified complaint alleging residence - was competent for the purpose offered (22 C. J. 975) and, given the husband's unknown whereabouts, the best evidence obtainable, admitted without objection. Nonetheless, the court declined the wife's request to reverse and direct entry of a divorce on her cross-complaint: the sufficiency and weight of the residence evidence were addressed to the discretion and judgment of the trial court, whose action binds the appellate court, particularly in a divorce case in which the court represents the interest of the state. The court further reasoned that the husband's misconduct furnished the trial court a reason to attach less weight to the residence allegation in his verified complaint, rather than greater probative force to the wife's proof.

In plain language

A husband filed for divorce in Nevada in March 1932, claiming he had been a Nevada resident for the required six weeks. His wife, who lived in Illinois, answered and eventually asked for her own divorce on the ground of adultery, plus a division of property. Early in the case the court ordered the husband to pay her travel money, temporary support, and attorney fees; he paid nothing and left the state, and his whereabouts were unknown by the time of trial. At trial the husband did not appear. His own lawyer then asked the court to dismiss the wife's claim, arguing she had not proven the husband was really a Nevada resident (a fact the court needed in order to have power over the case). The trial judge dismissed the case on that ground. The wife appealed, saying the evidence proved the husband's residence. The Nevada Supreme Court explained that the husband's physical presence in Reno for six weeks was not disputed; the real question was whether he intended to make Nevada his home. The wife's proof - hotel testimony, his Nevada car license and tax payments, statements that he meant to live in Reno, and his own verified complaint - was proper and was the best evidence she could get given that he had vanished. But the court held that whether that evidence was strong enough to grant the wife a divorce was a matter left to the trial judge's judgment and discretion, and the appellate court would not override it, especially in a divorce case where the court represents the state's interest. Although it condemned the husband's conduct as reprehensible, the court affirmed the dismissal.