LESLEY VS. LESLEY (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

The court reversed the denial of an NRCP 60(b)(1) motion to set aside a default divorce decree. Under NRCP 60(b), the district court has wide discretion, but that discretion cannot be sustained absent competent evidence to justify the court's action. Stoecklein v. Johnson Electric, Inc., 109 Nev. 268, 271, 849 P.2d 305, 307 (1993). The court applied the five Bauwens factors: whether the movant (1) promptly applied to remove the judgment, (2) lacked intent to delay, (3) demonstrated good faith, (4) lacked knowledge of procedural requirements, and (5) tendered a meritorious defense. Bauwens v. Evans, 109 Nev. 537, 539, 853 P.2d 121, 122 (1993). The court held each factor favored Deborah. Her motion, filed roughly five weeks after she received the written decree and well within the six-month limit, was timely. Petersen v. Petersen, 105 Nev. 133, 135, 771 P.2d 159, 161 (1989). The record showed no intent to delay - she had actively pursued relief in California - and demonstrated good faith and an absence of any 'serious disregard of the judicial process.' Yochum v. Davis, 98 Nev. 484, 487, 653 P.2d 1215, 1217 (1982). Given her reliance on California counsel and favorable California orders, she adequately showed lack of knowledge of Nevada procedural requirements. On meritorious defense, the court held that in a child custody matter the factor is satisfied by showing the district court did not consider the children's best interests before the custody determination, see NRS 125.480; because the default decree awarded custody without a best-interest hearing - despite evidence Eldon may have committed domestic violence - Deborah tendered a meritorious defense. The court emphasized Nevada's policy favoring decisions on the merits, heightened in domestic relations matters, Price v. Dunn, 106 Nev. 100, 105, 787 P.2d 785, 788 (1990), and that a court may not use custody as a sword to punish parental misconduct, Sims v. Sims, 109 Nev. 1146, 1149, 865 P.2d 328, 330 (1993). (The meritorious-defense requirement applied here was later overruled in Epstein v. Epstein, 113 Nev. 1401, 950 P.2d 771 (1997).)

In plain language

Deborah and Eldon Lesley married in 1992 and lived near Winnemucca, Nevada, with their three young children. Deborah alleged that in January 1996 Eldon hit her in front of the children and threatened worse. On the advice of her parents and a crisis line, she left Nevada with the children for her parents' home near Fresno, California. There she consulted a paralegal, obtained a temporary protective order, and filed for legal separation - believing she could resolve everything in California. Eldon then filed for divorce in Nevada in March 1996. When Deborah did not respond, the Nevada court entered a default divorce decree in April 1996 that gave Eldon sole legal and physical custody of the children, ordered Deborah to pay child support, and awarded Eldon essentially all the property. Deborah, once she learned she was actually divorced and consulted a Nevada attorney, moved to set aside the default. The district court denied her motion, emphasizing its displeasure that she had tried to litigate in California rather than Nevada. Deborah appealed. The Nevada Supreme Court reversed. Applying the factors for setting aside a default under NRCP 60(b), the court concluded Deborah had satisfied them: she filed her motion promptly (well within the six-month limit), showed no intent to delay, acted in good faith, and reasonably lacked knowledge of Nevada procedure because California attorneys and courts had led her to believe she could proceed there. On the 'meritorious defense' factor, the court explained that in a child custody matter, that factor is met by showing the district court did not consider the children's best interests - and here the default decree awarded custody without any best-interest hearing, despite evidence Eldon may have committed domestic violence. The court stressed that Nevada policy favors deciding cases on the merits, especially in domestic relations, and that a court may not use a custody award to punish a parent's conduct. It reversed and remanded for further proceedings.