LA POTIN VS. LA POTIN (DIVORCE)

Key holdings

Practitioner summary

Per Curiam. On the wife's appeal from a judgment for the husband in her independent action to set aside a 1949 divorce decree he had obtained, the court reversed and remanded. The sole issue was whether the record established that the divorce court lacked jurisdiction for want of service of process. The divorce court had proceeded on an affidavit reciting personal service on the wife in New York; the present action alleged that affidavit was false. The only evidence - the depositions of the wife and the process server, taken on written interrogatories with no cross-interrogatories - positively established that the process server, through misinformation, served the wrong person and that the wife was never served. The husband, who filed no answering brief, offered nothing to impeach this uncontradicted and unimpeached testimony, which the court accepted as established. It followed that the divorce court lacked jurisdiction and the decree was void (Perry v. Seventh Judicial District Court, 42 Nev. 284, 174 P. 1058 (1918)), a defect properly raised by independent action to set the decree aside (NRCP 60(b); Moore v. Moore, 75 Nev. 189, 336 P.2d 1073 (1959); Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140 P.2d 953 (1943)).

In plain language

The wife brought a lawsuit to set aside a divorce decree that the husband had obtained against her in Clark County in 1949. She argued the decree was void because the court that granted it never had power (jurisdiction) over her: the court had acted based on a sworn statement saying she had been personally served with court papers in New York, but she claimed that statement was false and that she was never actually served. The trial court ruled for the husband, and the wife appealed. The only question was whether the record clearly showed that the divorce court lacked jurisdiction because she was never served. The husband did not even file a brief on appeal. The only evidence on the point was two depositions - the wife's and the process server's - given in answer to written questions, with no cross-questions from the other side. Both depositions clearly stated that the process server, acting on wrong information, mistakenly served the wrong person, and that the wife herself was never served. The husband offered nothing to contradict or undermine this testimony, so the court had to accept it as true. Because the wife was never served, the divorce court had no jurisdiction and its 1949 decree was void. A void decree like this can properly be attacked in a separate lawsuit to set it aside. The Nevada Supreme Court reversed and sent the case back with instructions to enter judgment for the wife, vacating the 1949 divorce decree.