JEFFERS VS. JEFFERS (DIVORCE)

Key holdings

Practitioner summary

Following Herrick v. Herrick, 55 Nev. 59, 25 P. (2d) 378, the court held that under the five-years'-separation statute (Stats. 1931, c. 111, sec. 1) the complaint need not negative the plaintiff's fault in causing the separation, so the demurrer to the complaint was properly overruled. However, the court held it was error to sustain the plaintiff's demurrers to the wife's affirmative defenses. Although the matters pleaded were not alleged to have caused the separation (as in Herrick), they were recriminatory in character and might reasonably be expected to influence the discretion the statute confers on the court; a defendant is therefore entitled to prove such matter if pleaded. As a condition precedent, and in fairness to the plaintiff, the defendant must allege the recriminatory misconduct so the plaintiff has notice and an opportunity to meet it; such matter, though it may not amount to an affirmative defense in the ordinary sense, becomes a complete defense if sufficient to persuade the court to exercise its discretion against the party seeking the divorce. The court invoked Guillot v. Guillot, 42 R. I. 230, 106 A. 801, for the proposition that recriminatory testimony does not bind or control the court but may be considered in aid of the statutory discretion. The court noted the trial court had ruled before Herrick was decided.

In plain language

This is the main appeal in the same divorce case (the earlier decision had only dealt with the wife's appeal-money request). The husband sued for divorce on the ground that the couple had lived apart for more than five years without living together as spouses. The wife challenged the complaint, and she also raised five defenses accusing the husband of misconduct: desertion, adultery, bigamy, failure to provide, and extreme cruelty. The trial court threw out all five defenses and granted the husband his divorce. The wife appealed. The Nevada Supreme Court first held, following its Herrick decision, that a five-year-separation complaint does not have to say the plaintiff was blameless, so the wife's challenge to the complaint failed. But the court held it was error to knock out the wife's defenses. Even though those accusations did not cause the separation, they were the kind of recriminatory misconduct that could reasonably influence the discretion the statute gives the judge - and a divorce is discretionary under this ground. So the wife was entitled to plead and prove them. The court explained that a spouse who wants to rely on such misconduct must actually allege it, to give fair notice and a chance to respond; if proven and serious enough to persuade the judge to withhold the divorce, it becomes a complete defense. Because the trial court had wrongly cut off these defenses, the Supreme Court reversed and sent the case back.