LAKE VS. BENDER (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Plaintiff wife's appeal from the order denying her motion for new trial limited to the property issues and from the portions of the divorce decree affecting alimony and property rights, after the district court granted her a divorce for cruelty (jury issues) but adjudged the disputed property to be defendant's separate estate (court-tried reserved issues), with allowances of $150 per month for her and $50 for the child secured by lien and jurisdiction reserved to modify. Leonard, J., affirmed. Procedurally, the court held a new trial may be had of separable issues alone: the property division is an incident of and dependent on the divorce, error in the property trial could not have affected the divorce verdict, and the motion confined to those issues was proper (De Godey v. Godey, 39 Cal. 157; California practice under an analogous statute). On the merits, construing the Act of March 7, 1865 and the statute in force (Comp. Laws 151) against the constitutional provision protecting the wife's separate property, the court held Nevada's omission of the California clause deeming 'the rents and profits of the separate property of either husband or wife' common property was deliberate, so rents, issues, and profits of separate estate remain separate (George v. Ransom, 15 Cal. 323, discussed; Williams v. McGrade, 13 Minn. 51). Property acquired during coverture presumptively belongs to the community, and the burden rests on the spouse asserting separate character to overcome the presumption by clear and satisfactory proof (Davis v. Zimmerman, 40 Mich. 27, approved); property acquired by the husband's efforts alone is community even without any contribution by the wife, but profits coming mainly from the ordinary use of separate property rather than from the spouses' labor - here the toll road and bridge, the Lake House, and the Lake ranch - belong to the separate estate. The Meadow Lake hotel venture yielded no profits on this record. The court declined to decide whether, on a cruelty divorce, courts may divest the husband's title to separate estate; the statutory division of property rests in the trial court's legal discretion, not disturbed absent abuse. M. C. Lake having died pending appeal, C. T. Bender, administrator, was substituted as defendant and respondent, and the judgment and order were affirmed.

In plain language

Jane Lake sued M. C. Lake for divorce on the ground of cruelty and asked for an equal division of a large amount of property she claimed belonged to the marital community; he answered that it was all his separate property. By agreement, a jury tried the divorce issues and the court reserved the property issues. The jury's verdict won Jane the divorce, and the court awarded her $150 per month for herself and $50 per month for the child, secured as a lien on real property, while finding that all the disputed property was M. C. Lake's separate estate. Jane moved for a new trial of the property issues only, was denied, and appealed from that order and from the property and alimony portions of the decree. The Nevada Supreme Court affirmed. It first held that a new trial can be granted on a severable branch of a case - here the property issues - without retrying the divorce itself. On the merits, it held that Nevada, unlike California, deliberately left out of its statute the clause making the rents and profits of separate property common property, so the rents, issues, and profits of a spouse's separate estate remain separate. Property acquired during the marriage is presumed to be community property, and the spouse claiming otherwise must overcome that presumption with clear and satisfactory proof, but profits that come mainly from separate capital - such as the rents and profits of the toll road and bridge, the Lake House, and the Lake ranch - belong to the owning spouse. Finding no error in the property findings and no abuse of discretion in the allowances, the court affirmed. M. C. Lake died while the appeal was pending, and C. T. Bender, the administrator of his estate, was substituted as respondent - which is why this chapter of the Lake divorce litigation is reported as Lake v. Bender.