KELLY VS. KELLY (DIVORCE)

Key holdings

Practitioner summary

Wife's appeal, on the judgment roll alone, from a judgment of divorce granted to the husband on the ground of extreme cruelty. Belknap, J., affirmed. The court gave extreme cruelty a negative rather than affirmative definition, adopting the principle of Evans v. Evans, 1 Hagg. Cons. 35, that danger to life, limb, or health, or reasonable apprehension of it, constitutes legal cruelty, while conduct merely wounding mental feelings without actual or menaced bodily injury ordinarily does not; but it held the required injury to health may be accomplished without physical violence, through systematic abuse, humiliating insults, and annoyances (citing Butler v. Butler, 1 Pars. (Pa.) Sel. Cas. 344; Bishop, Marriage and Divorce sec. 733; Richards v. Richards, 37 Penn. 228). The statute contemplates the husband as complaining party and affords him the same relief as a complaining wife; allegations of false charges of adultery, repeated accusations of infidelity circulated among mutual friends, habitual vilification and opprobrious epithets, and threats of abandonment rendering the plaintiff's life unendurable could support proof of extreme cruelty. Because the appeal was on the judgment roll alone, with neither findings nor evidence in the record, the court applied the presumption that whatever proof was necessary to support the judgment was made, absent an affirmative contrary showing. The objection to the verification failed: where every allegation is made positively, a verification following the statutory form but omitting the information-and-belief clause is sufficient (Kinkaid v. Kipp, 1 Duer 692). Judgment affirmed.

In plain language

A husband won a divorce from his wife on the ground of extreme cruelty, and the wife appealed. She brought up only the judgment roll - no findings and no record of the evidence - so the main question was whether the husband's complaint could support a divorce at all. The complaint alleged that beginning July 6, 1881 in San Francisco the wife falsely charged him with adultery, repeatedly accused him of infidelity and of living with other women, circulated those charges among their mutual friends, habitually vilified and abused him with opprobrious epithets, and threatened to abandon him, making his life so miserable he was forced to stop living with her. The Nevada Supreme Court affirmed. Drawing on Lord Stowell's Evans v. Evans and American authorities, the court explained that while mere rudeness, petulance, or occasional sallies of passion are not legal cruelty, there can be extreme cruelty without any physical violence: systematic abuse and humiliating insults can destroy health as effectively as blows. The statute expressly allows a husband to be the complaining party, and although the husband is usually the physically stronger, cases can exist in which a wife's conduct causes him serious mental and physical suffering. Since a case of extreme cruelty could have been proven under these allegations, and since on an appeal from the judgment roll alone everything necessary to support the judgment is presumed proven, the judgment stood. The court also rejected a technical objection to the complaint's verification.