JOHNSON VS. JOHNSON (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

By the Court, Pike, J. On the husband's appeal from a decree granting the wife a divorce for extreme cruelty and dividing community property, the court affirmed. Although the acts of violence occurred on a single occasion, their character and circumstances could reasonably cause apprehension of repetition and suffice to establish extreme cruelty (Kapp v. District Court, 31 Nev. 444, 103 P. 235 (1909); Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804 (1922)). Because the court's failure to find on the pleaded adultery ground was construed as a failure of proof (State ex rel. Dep't of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960)), the decree rested on cruelty, an issue tried by consent and thus treated as though raised in the pleadings (NRCP 15(b)). On property, the court upheld the order requiring the husband to pay the wife $5,000 for her interest in the community coffee shop and one-half of a community debt secured by her separate residence, holding this a division of community property under NRS 125.150 rather than an impermissible reach into separate property; dividing the going concern in kind was impracticable and the parties' relationship discounted joint operation. Thorne v. Thorne, 74 Nev. 211, 326 P.2d 729 (1958), was distinguished as involving no community property and no support issue (Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950); Leland v. Leland, 71 Nev. 346, 291 P.2d 905 (1955)).

In plain language

The wife was granted a divorce and the husband appealed. The wife's complaint alleged that on May 25, 1958 the husband struck her, causing a fractured rib and bruises, and also alleged adultery. The husband denied both and counterclaimed for cruelty. Trying the case without a jury, the court found for the wife on extreme cruelty and made no finding on adultery (which the court treated as a failure to prove that ground). The husband argued that the cruelty finding was not supported and that a single act of violence could not support a divorce. The Nevada Supreme Court disagreed. The evidence showed more than one act, even though all occurred on one occasion, and a single occasion of violence can amount to extreme cruelty if its character and circumstances could reasonably make the victim fear it would happen again. The trial judge, who saw both parties, was in the best position to evaluate this. Although the wife's complaint may not have perfectly pleaded cruelty, the issue was tried with both sides' consent, so it was treated as if it had been pleaded. On property, the couple had acquired a coffee shop and other community assets during the marriage. The wife also owned a house (her separate property) that had about $4,000 of debt when they married; during the marriage they borrowed $5,700 secured by the house, using about $4,000 to pay off the old debt and about $1,500 on the coffee shop. The decree ordered the husband to pay the wife $5,000 for her interest in the coffee shop and half of the roughly $4,000 remaining loan balance. The husband argued the court had no power to order these payments because they would come from his separate funds. The court rejected that. This was really a division of community property: the husband kept the community coffee shop (which was impractical to split, especially given the parties' relationship) and had to pay the wife for her share. The $5,700 loan was a community debt, so ordering the husband to pay his half was also part of dividing the community property under NRS 125.150. The case the husband relied on (Thorne v. Thorne) was different because there had been no community property and no support issue there. Affirmed.