MERRITT VS. MERRITT (DIVORCE)

Key holdings

Practitioner summary

Appeal by the plaintiff wife from a Second Judicial District Court judgment decreeing the court 'without jurisdiction in said cause' and that plaintiff take nothing, and from denial of a new trial. McCarran, J. (original opinion), construed the 1915 divorce statute (Stats. 1915, p. 26, amending Stats. 1861, c. 33) as fixing five alternative jurisdictional conditions: cause accrued in the county; defendant resides in the county; defendant found in the county; plaintiff resides in the county where the parties last cohabited; or plaintiff's six-month residence in the county. Time of residence is essential only to the fifth. Plaintiff alleged her Reno residence and that defendant was within the jurisdiction; the sheriff's return showed personal service on defendant in Washoe County - the third condition, governed by Tiedemann v. Tiedemann, 36 Nev. 501, 137 Pac. 824, which the court declined to disturb. The judgment declaring want of jurisdiction was reversed; questions of fraud or collusion were expressly left open for the trial court. On rehearing (granted on petition of amici curiae for the district court, citing Tiedemann, Presson v. Presson, 38 Nev. 203, 147 Pac. 1081, and Aspinwall v. Aspinwall, 40 Nev. 55, 160 Pac. 253), the court reviewed the record on bona fides: testimony showed continuous residence at the Riverside Hotel from January 16, 1916, no other claimed home, no Nevada property, and income from mortgages and bonds. Held, nothing militated against bona fide residence; hotel living raises no adverse presumption. Judgment reversed with instructions to enter the decree of divorce as prayed for.

In plain language

Evelyn Woods Merritt sued Frederick Charles Merritt for divorce in Washoe County. Her complaint alleged that she resided in Reno and that her husband was within the court's jurisdiction and could be served there; the sheriff personally served him in Washoe County. The district court nonetheless entered a decree declaring itself 'without jurisdiction' and that the plaintiff take nothing, and she appealed. The Nevada Supreme Court reversed. Under the 1915 divorce statute, any one of five conditions confers jurisdiction, including that the defendant 'be found' in the county; a time period of residence is required only when the plaintiff relies on her own six-month residence. Since the wife alleged her Reno residence and the husband was found and personally served in Washoe County, the court had jurisdiction under the rule of Tiedemann v. Tiedemann. On rehearing - granted on a petition filed by friends of the court on behalf of the district court - the Supreme Court examined the evidence of the wife's residence: she lived at the Riverside Hotel from January 16, 1916 through trial, owned no Nevada property, and lived on income from mortgages and bonds. The court held none of that undermined a bona fide residence ('the time was when hotels and inns were not regarded as permanent places of abode, but in this modern day and age no such intimation or presumption is justified'), adhered to its reversal, and directed the trial court to enter the divorce decree as prayed.