KOHLSAAT VS. KOHLSAAT (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a divorce decree granted the husband on the ground of three years' separation. Held: (1) under N.C.L. sec. 8782, failure to demand a jury within five days after written notice of the trial setting waived jury trial (waiver requiring both the failure and the court's assent, both present here); setting aside the waiver rested in the trial court's sound discretion, and no abuse appeared (O'Banion v. Simpson, 44 Nev. 188). (2) In an action under the three-year-separation statute (sec. 9467.06), the court may, absent abuse of discretion, grant a divorce to the spouse more at fault over an innocent spouse; recriminatory proof does not compel denial (George v. George, 56 Nev. 12; Herrick v. Herrick; Jeffers v. Jeffers). (3) Refusal to adopt proposed findings on recriminatory or subordinate matters was not reversible error where the findings made support the judgment and the omitted findings would not countervail them. (4) Denial of a one-day continuance for out-of-state counsel was not prejudicial, given able resident counsel and the visiting attorney's later participation. Affirmed.

In plain language

A husband was granted a divorce on the ground of three years' separation. The wife appealed, complaining that the trial court wrongly refused to undo her accidental waiver of a jury trial (she demanded a jury two days late), refused a one-day continuance so her Chicago attorney could arrive, and granted the husband a divorce despite her proof that he had been cruel and adulterous and had deserted her. The Nevada Supreme Court affirmed. Failing to demand a jury within five days after notice of the trial setting waived the jury, and whether to set aside that waiver rested in the trial court's discretion, which was not abused. In a three-years'-separation case, the court may grant a divorce to the spouse more at fault; comparative fault is not controlling. Refusing to adopt the wife's proposed findings on subordinate matters was not error because the findings the court did make supported the judgment. And no prejudice resulted from denying the one-day continuance, since able local counsel represented the wife and the Chicago attorney participated after the first day.