LATTERNER VS. LATTERNER (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a decree of divorce granted to the plaintiff husband, challenging only the bona fides of his alleged three-month Douglas County residence pleaded under Rev. Laws 5838 as amended by Stats. 1927, c. 96 (reducing the residence period from six months to three). Ducker, C.J., held the trial court misapplied the law: the bill of exceptions showed the court found only actual corporeal presence for three months and expressly declined to find good-faith residence. The residence required by section 5838 had been definitively construed under the six-month clause to require physical presence coupled with intent to make the place a home (Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Presson v. Presson, 38 Nev. 203, 147 P. 1081; Walker v. Walker, 45 Nev. 105, 198 P. 433), and the 1927 amendment, changing only the number of months, is presumed to carry that judicial construction forward. Applying a wrong principle of law to a party's prejudice requires reversal (Long Valley Land & Development Co. v. Hunt, 51 Nev. 5, 266 P. 917), and, having failed to find plaintiff a bona fide resident, the court was without jurisdiction to grant the decree. Judgment reversed; rehearing denied per curiam May 16, 1929.

In plain language

A husband sued for divorce in Douglas County, Nevada, alleging he had lived there continuously for more than three months before filing, and the trial court granted him a divorce. The wife appealed on a single ground: the evidence did not establish that the husband's Nevada residence was genuine (in good faith). The trial judge had candidly stated that he did not find the husband's residence was in good faith, only that he had been physically present in Douglas County for three months, and asked whether more was required, adding that if more was required the plaintiff should not have his decree. The Nevada Supreme Court held that more is indeed required. In 1927 the legislature shortened the divorce residence period from six months to three, but it kept the same word, 'resided,' which the court had already interpreted to mean physical presence plus a present intention to make the county one's home, at least for an indefinite period. When a legislature reuses words the courts have already construed, it is presumed to adopt that construction. Because the trial court applied the wrong legal standard and never found the husband to be a bona fide resident, it had no jurisdiction to grant him a divorce. The judgment was reversed. A petition for rehearing was denied on May 16, 1929.