LEMP VS. LEMP (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from a divorce decree (three-years' separation) and from an order striking her affirmative defenses and money cross-complaints; the plaintiff husband died pending appeal, and his former counsel, as officers of the court, moved to dismiss. Held: (1) a divorce appeal abates on a party's death as to marital status but not as to property interests. (2) The money cross-complaints (for arrears under a prior Missouri separate-maintenance decree and for a loan of securities and money) were not proper subjects of cross-complaint or counterclaim in a Nevada divorce, where a defendant's affirmative relief is limited to that available under English ecclesiastical practice absent statute (Wuest v. Wuest, 17 Nev. 217). (3) Striking the affirmative defenses was error, as their allegations might influence the court's discretion in a three-year-separation case (Jeffers v. Jeffers), but no property rights were actually involved: debts are not the debtor's property, the right to alimony is personal (Foy v. Smith's Estate, 58 Nev. 371), and the husband brought no property before the court. (4) With no property rights involved and the status question moot on the husband's death, the appeal is dismissed; costs are awarded to appellant, who had good ground to appeal.

In plain language

A husband sued for divorce on the ground of three years' separation. The wife's answer included money cross-claims - for unpaid arrears under a Missouri separate-maintenance decree, and for repayment of bonds, stock, and money she said she had lent him - plus affirmative defenses. The trial court struck those cross-claims and defenses and granted the husband a divorce, saying nothing about property or alimony. The wife appealed. Then the husband died, and his former attorneys moved to dismiss the appeal, arguing the divorce action died with him and no property rights were involved. The Nevada Supreme Court dismissed the appeal. A divorce appeal abates on a party's death as to the marital status, but survives as to property rights. Here, however, no property rights were actually involved: money debts are not the "property" of the debtor husband, the right to alimony is personal rather than a property right, and the husband brought no property before the court. The wife's money cross-complaints were not proper in a Nevada divorce. Striking her affirmative defenses was error, but harmless. With the status question moot on the husband's death and no property rights at stake, the appeal was dismissed, with costs to the wife.