KELSO VS. KELSO (DIVORCE)

Key holdings

Practitioner summary

On appeal from an order setting aside a default and divorce decree, the court reaffirmed the long-settled rule that a motion for relief from default is fatally defective unless accompanied by a showing of the nature of the defense the movant expects to interpose, so the court can assess its merit (Blakeney v. Fremont Hotel, Inc., 77 Nev. 191, 360 P.2d 1039; Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d 839; Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979; Esden v. May, 36 Nev. 611, 135 P. 1185; Howe v. Coldren, 4 Nev. 171). The court accepted that the showing of excusable neglect may have been sufficient, but held that without any showing of a defense or its nature, setting aside the default was error. It rejected the wife's contention that counsel's signature on the motion under NRCP 11 (certifying good ground to support the pleading) itself established a meritorious defense; even applying Rule 11 to motions, there would still be no showing of the nature of the defense as required by Lukey (citing Guardia v. Guardia, 48 Nev. 230, 229 P. 386). The court declined to overrule the settled cases requiring a showing of a meritorious defense and reversed the order.

In plain language

A husband obtained a default divorce after his wife, served in San Francisco, failed to answer the complaint within the required 20 days. About a week after the divorce was entered, the wife moved to set aside the default, arguing mistake, inadvertence, surprise, and excusable neglect, and suggesting the husband's counsel had not clearly warned her lawyer that a default would be taken. The trial court granted her motion and set aside the default and divorce. The husband appealed. The Nevada Supreme Court reversed. It reaffirmed a long-standing Nevada rule: a party asking to be relieved of a default must show not only a good excuse for the default but also the nature of the defense they would raise if allowed to answer, so the court can judge whether that defense has merit. Here the wife's papers said nothing about any defense to the divorce. The court rejected her argument that her attorney's signature on the motion (under the rule certifying good grounds) was enough to establish a meritorious defense. Because there was no showing of any defense, the trial court had no proper basis to set aside the default, and its order was reversed.