LOWRANCE VS. LOWRANCE (DIVORCE)

Key holdings

Practitioner summary

After the husband served summons and a divorce complaint, he received the wife back into the marital home, had marital relations with her, then obtained a default decree awarding him all community property and custody of the three minor children, and thereafter ordered her from the home. The wife - shown to be legally unsophisticated and without funds to employ counsel - moved roughly three months later, through counsel retained without a retainer, to set aside the decree on grounds of surprise and excusable neglect. The district court denied the motion in its entirety. The court held the record established meritorious grounds to set aside the decree under NRCP 60(b). Cipolla v. Cipolla, 85 Nev. 43, 449 P.2d 258 (1969). At oral argument respondent's counsel conceded the facts, which the court characterized as excusable neglect and, indeed, fraud on the lower court. As to delay, the court held that finding laches, estoppel, or waiver a bar in these circumstances would 'reduce the judicial process to a mockery.' As to the wife's remarriage while the motion was pending, the court held it was no bar because she had accepted no benefits from those portions of the decree that deprived her of her parental and property rights. The court reversed the denial insofar as it concerned the parties' property and custody rights, and remanded with instructions to determine the wife's application for preliminary attorney's fees and to decide, as matters of first impression, the distribution of property and the custody of the children.

In plain language

After the husband served his wife with a divorce complaint, he took her back into the marital home and resumed living with her. When she asked what he intended to do about the divorce action, he answered only, 'You will find out in time.' They had marital relations on the night of November 17, 1969. The next day, November 18, without her knowledge, the husband obtained a default divorce decree that awarded him all of the couple's community property and custody of their three young children (ages 9, 7, and 3). He came home early on November 19, again had marital relations with his wife, and only then told her, 'The divorce decree is now final,' and ordered her out of the home along with her three other children from a prior marriage. The wife, who was not legally sophisticated and had no money to hire a lawyer, did not consult an attorney for about three months. When she finally found counsel (who took the case without a retainer), she moved to set aside the default decree on grounds of surprise and excusable neglect. The trial court denied her motion entirely. The Nevada Supreme Court reversed in part. It found the record clearly established meritorious grounds to set aside the decree under the rule allowing relief from judgments (NRCP 60(b)) - indeed, at oral argument the husband's own counsel effectively conceded the facts amounted to fraud on the lower court. The court held that her roughly three-month delay was no bar; to treat it as 'laches,' 'estoppel,' or 'waiver' in these circumstances would 'reduce the judicial process to a mockery.' Her remarriage while the motion was pending was also no bar, because she had accepted no benefits from the parts of the decree that stripped her of her parental and property rights. The court reversed the denial of relief as to the property and custody portions of the decree and sent the case back with instructions to decide her request for preliminary attorney fees and to determine, as matters of first impression, how to divide the property and who should have custody of the children.