MOORE VS. MOORE (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

By the Court, Badt, J. On the appeal of Paul and Mary Moore from a summary judgment for Benda (Paul's second wife) that set aside a prior order vacating the Paul-Mary divorce decree and restored the decree, the court modified and, as modified, affirmed. Paul divorced Mary in 1955 and immediately married Benda; in 1957, on Paul and Mary's stipulation and Paul's affidavit recanting his residence testimony, the district court vacated the divorce decree without notice to Benda, thereby nullifying her marriage. The court held the divorce decree was not void on its face: Paul had pleaded and testified to residence and residential intent, and where the proof has a legal tendency to show jurisdiction the decree is at most voidable, not void (New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U.S. 656 (1875); Covington v. Second Judicial District Court, 56 Nev. 313, 50 P.2d 517 (1935)). A voidable decree may be set aside, whether by motion in the cause or independent action, only on notice to all affected parties (Zeig v. Zeig, 65 Nev. 464, 198 P.2d 724 (1948)); remarriage does not itself deprive the court of power to vacate (Smith v. Smith, 68 Nev. 10, 226 P.2d 279 (1951)), but the second spouse is entitled to notice, and an order vacating the decree entered without it will be set aside (Bowman v. Bowman, 97 Cal.App. 613, 275 P. 1023 (1929)). Because Benda received no notice, the order vacating the decree was ineffectual. The court struck the $7,000 attorney-fee award to Benda as unauthorized by statute or decision, and as so modified affirmed.

In plain language

Paul obtained a divorce from Mary in Washoe County in October 1955 and married Benda the very next day. In 1957, Mary's new lawyer pointed out to the court that Paul's residency testimony in the divorce looked questionable, and Paul and Mary jointly asked the court to undo the divorce - Paul even signing a statement that his earlier residency testimony was false. The court vacated (canceled) the divorce decree in June 1957 without giving any notice to Benda, even though Paul and Benda were still living together as husband and wife. Canceling the divorce had the effect of wiping out Benda's marriage to Paul. When Benda found out, she sued Paul and Mary, alleging fraud and asking the court to undo the order that had canceled the divorce. The trial court agreed with Benda, set aside that cancellation order, and restored the original divorce decree. Paul and Mary appealed, arguing that Paul had never really been a Nevada resident, so the original divorce decree was void from the start. The Nevada Supreme Court rejected that. Paul had claimed and testified to Nevada residency and intent to live there; his absences from the state raised factual questions for the trial court to resolve, but where the evidence at least tends to show jurisdiction, the decree is not void - it is only "voidable" (subject to being set aside in a proper proceeding). A voidable divorce decree can only be set aside with notice to everyone whose rights would be affected. A person's remarriage does not by itself prevent a court from canceling a divorce, but the new spouse is entitled to notice, and an order canceling the decree without that notice will itself be set aside. Because Benda got no notice - and was actually living with Paul while he and Mary maneuvered to restore their marriage and nullify his marriage to Benda - the order canceling the divorce was ineffective and was properly set aside. The court did strike one part of the judgment: the $7,000 in attorney fees awarded to Benda, because no Nevada statute or decision authorized it. With that change, the judgment was affirmed.