ISSARESCU VS. ISSARESCU (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Thompson, J. The husband appealed a decree granting the wife a divorce on the ground of three years' separation without cohabitation, contending there was no explicit evidence that the separation was voluntary and with intent to discontinue the marital relationship. The court affirmed. A claim under NRS 125.010(9) contemplates a voluntary separation without cohabitation for three years, with intent by at least one spouse to discontinue the marital relationship (Pearson v. Pearson, 77 Nev. 76, 359 P.2d 386 (1961); Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581 (1959); Caye v. Caye, 66 Nev. 83, 211 P.2d 252 (1949)). The court held that the trial court may permissibly infer a voluntary separation with intent to disrupt the marriage from the fact of separation without cohabitation for three years (NRS 52.020): such proof establishes a prima facie case, shifting the burden of going forward to the contesting defendant to offer credible evidence that the separation was involuntary and without intent to end the marriage; the plaintiff may then rebut, and the court resolves any conflict; absent such defense evidence, the court may in its discretion draw reasonable inferences. Consistent with prior decisions, the court will imply a finding that the separation was voluntary (Caye) and that reconciliation is impossible (Baker v. Baker, 76 Nev. 127, 350 P.2d 140 (1960)) to support the judgment. On the residence/domicile assignment, the court declined to decide whether letters from the plaintiff's New York counsel (written before she came to Nevada and suggesting a divorce-only purpose) should have been received, but noted they were admitted and considered; the trial court was not bound to prefer them over the plaintiff's trial testimony, which amply supported the finding of bona fide residence. Affirmed.

In plain language

The district court granted Ileana Issarescu a divorce on the ground that she and her husband had lived apart for three years without living together. The husband, who contested the divorce and was present throughout the trial, argued the divorce should be reversed because there was no direct testimony or document proving that the separation was voluntary and that at least one spouse intended to end the marriage - neither spouse actually testified about that point. The Nevada Supreme Court affirmed. It explained that a divorce for three years' separation (under NRS 125.010(9)) requires a voluntary separation, without living together, for three years, with at least one spouse intending to end the marriage. The key question was whether a trial court may infer that the separation was voluntary and intended to end the marriage simply from the fact of a three-year separation. The court held that this inference is permissible. Proof of a three-year separation without cohabitation makes out a 'prima facie' case; the burden then shifts to the contesting spouse to offer credible evidence that the separation was involuntary or without intent to end the marriage. If he offers none, the court may draw reasonable inferences in the other spouse's favor. The court will also imply the findings needed to support the judgment (that the separation was voluntary and that reconciliation is impossible). The court also rejected the husband's complaint about the wife's Nevada residence, holding the trial court was entitled to believe her trial testimony over earlier letters from her New York lawyer that hinted she came to Nevada only to get a divorce.