LAMB VS. LAMB (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Appeal by the wife (defendant) from a judgment granting the husband (plaintiff) a divorce on the ground of extreme cruelty following a jury trial (First Judicial District Court, Ormsby County), and from the order denying a new trial. The wife challenged the bona fides of the husband's Nevada residence (alleging a fraud on her and the court that defeated jurisdiction) and two jury instructions. The jury returned a verdict for the husband and made special findings that he was a resident of Ormsby County and had resided in Nevada six weeks before filing. The court affirmed. On jurisdiction, it reiterated that residence sufficient to confer divorce jurisdiction requires the plaintiff's physical presence for the whole statutory period (Section 9460 Comp. Laws) accompanied by intent to make Nevada his home permanently or for an indefinite time. Facing a substantial conflict in the evidence, the court would reverse only if convinced the verdict and findings were clearly wrong; despite some doubt as to the husband's good faith, it was not so convinced (noting, among other things, that the wife's own verified answer had denied his residence only on information and belief, and her opening statement had not stressed the issue). On the instructions: the instruction permitting a decree to the party least in fault where both are guilty of conduct constituting grounds (Section 9467.01 Comp. Laws) was a correct statement of the statute and, given the pleadings and the wife's opening statement that she was not seeking a divorce, could not have misled the jury; and the instruction on the six-week physical-presence requirement (which need not be continuous) was proper because the element of bona fide intent was covered by another instruction. Finding no error, the court affirmed.

In plain language

A husband obtained a divorce from a jury on the ground of extreme cruelty in a Nevada trial. His wife appealed, making two main arguments: first, that the husband's Nevada residence was not genuine but was set up only to get a divorce, which (she said) was a fraud on her and on the court and left the court without jurisdiction; and second, that two of the jury instructions were wrong. The Nevada Supreme Court affirmed. On residence, it explained that to give a Nevada court jurisdiction in a divorce, the plaintiff must be physically present in the state for the required time and must intend to make Nevada his home permanently or indefinitely. The evidence about the husband's intent was sharply conflicting, and although the court had some doubt about his good faith, it was not convinced the jury was clearly wrong, so it would not overturn the verdict. On the instructions, the court held that an instruction allowing a divorce to the party 'least in fault' when both spouses were at fault was a correct statement of a Nevada statute and could not have misled the jury into thinking the wife was also seeking a divorce, and that an instruction about the six-week physical-presence requirement was proper because the separate element of good-faith intent was covered by another instruction.