MITCHELL VS. MITCHELL (CHILD CUSTODY)

Key holdings

Practitioner summary

Appeal by the defendant husband from an amended judgment entered February 8 (on the plaintiff wife's noticed motion to reform and modify a default divorce decree for mistake, inadvertence, surprise, excusable neglect, and fraud) awarding the wife custody of the children, $50 per month from the husband for their and her support, and occupancy of the husband's separate dwelling in Hawthorne while she remained custodian. The underlying default decree, entered on a complaint alleging extreme cruelty, no community property, no separate property of the wife, and the husband's ability to maintain the children, had granted the divorce and awarded custody to the husband in accordance with the prayer of the complaint. Belknap, C.J. (Fitzgerald, J., concurring), applied sec. 3245 of Cutting's Compiled Laws: where there is no answer, the relief granted cannot exceed that demanded in the complaint; the general prayer for other and further relief cannot warrant a judgment inconsistent with the complaint's theory and allegations. The amended judgment exceeded the court's power. Talbot, J., concurring, added that the plaintiff's motion under sec. 68 of the practice act (relief from judgments taken through mistake, inadvertence, or excusable neglect) authorized setting aside, not selectively modifying, the judgment; the husband, lulled into default by a complaint demanding custody for him and no property or alimony, would otherwise lose both the children and his opportunity to defend, so relief, if any, required vacating the whole judgment. Amended judgment reversed and cause remanded.

In plain language

A wife sued for divorce on the ground of extreme cruelty, and her complaint asked the court to grant the divorce and to give custody of the children to the HUSBAND; the complaint also alleged there was no community property and no separate property of the wife, and that the husband could support the children. The husband did not answer, and a default divorce decree was entered granting exactly what the complaint asked: divorce to the wife, custody to the husband. Months later, on the wife's motion claiming mistake, surprise, excusable neglect, and fraud, the court amended the decree to award HER the children's custody, ordered the husband to pay $50 per month for her and the children's support, and let her stay in the husband's separately owned house in Hawthorne while she kept the children. The husband appealed the amended judgment. The Nevada Supreme Court reversed. By statute, when a defendant defaults, the relief granted to the plaintiff cannot exceed what the complaint demanded. The wife's own complaint demanded custody for the husband and asked nothing about property or support; a boilerplate request for 'such other and further relief as may seem just and equitable' cannot support a judgment inconsistent with the complaint's theory and allegations. Justice Talbot concurred separately, emphasizing that the wife had kept the favorable part of the default decree while reversing the parts favorable to the husband, who had defaulted in reliance on the complaint; if she was to be relieved from the judgment, the whole decree should have been vacated so the husband could defend.