KOCH VS. KOCH (DIVORCE)

Key holdings

Practitioner summary

Appeal on the judgment roll alone from a divorce decree for extreme cruelty; the wife pleaded a prior Massachusetts separate-maintenance decree (finding the husband deserted her) as res judicata. Held: (1) a reporter's transcript tendered months after the appeal, without a timely application for extension, could not be considered; the appeal stood on the judgment roll only (McGill v. Lewis, 61 Nev. 28; Clack v. Jones, 62 Nev. 72). (2) With no bill of exceptions and no request to modify findings, the wife could not attack the sufficiency or bona fides of the husband's Nevada residence, which was pleaded and expressly found. (3) Assuming arguendo the Massachusetts decree was res judicata as to grounds arising before its date, it was not res judicata as to extreme cruelty occurring afterward, which the trial court found and which, absent a bill of exceptions, must be accepted. (4) A spouse may be guilty of extreme cruelty toward the other while the parties are separated and living apart (Palmanteer v. Palmanteer, 11 Cal. 2d 570, 81 P.2d 910). Affirmed.

In plain language

A husband obtained a Nevada divorce on the ground of extreme cruelty. The wife had earlier won a Massachusetts separate-maintenance decree, which found that the husband had deserted her, and she argued that this decree was binding (res judicata) and barred his divorce, and that a Nevada court could not grant a divorce to the "guilty" spouse over the "innocent" one. The appeal reached the court on the judgment roll only, without a trial transcript. The Nevada Supreme Court affirmed. A trial transcript filed far too late could not be considered, so the court reviewed only the judgment roll. Without a bill of exceptions, the wife could not challenge the husband's Nevada residence for the first time on appeal, and the trial court's findings had to be accepted. Even assuming the Massachusetts decree was binding as to conduct before its date, it did not bar a divorce for extreme cruelty occurring after that decree, which the trial court found. Finally, a spouse can be guilty of extreme cruelty even while the parties are separated and living apart.