MORRIS VS. MORRIS (DIVORCE)

Key holdings

Practitioner summary

The sole question was whether the district court permissibly concluded that the defendant wife's failure to appear in time was due to excusable neglect under NRCP 60(b)(1), where the motion to set aside the default divorce decree was promptly made, accompanied by an answer with a meritorious defense and a counterclaim raising property and support issues. The court did not hesitate to affirm. The error arose when a secretary at the retained firm, following the firm's usual calendaring procedure, computed the answer deadline from the date the power of attorney was executed (January 9) rather than the date of service of summons (January 3), noting January 29 as the last day; defense counsel learned on January 28 that a decree had been entered four days earlier and moved to set it aside the next day. Emphasizing the policy of encouraging trial upon the merits, the court relied on its default jurisprudence collected in Hotel Last Frontier v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963); see also Blakeney v. Fremont Hotel, 77 Nev. 191, 360 P.2d 1039 (1961); Adams v. Lawson, 84 Nev. 687, 448 P.2d 695 (1968). The court held that the intraoffice practice of delegating calendaring to a trusted secretary is not per se neglect, that her fault was understandable, and that her conduct fell short of 'inexcusable neglect,' words carrying the implication of offensive action. No third-party rights had intervened, and nothing in the record warranted overturning the trial court.

In plain language

This case concerns a default divorce decree that was set aside. The wife was served with the divorce papers in Belgium on January 3, 1969. Her copy of the summons and a power of attorney (signed January 9, 1969) were sent to a Nevada law firm hired to represent her. Following the firm's usual practice, a secretary noted the deadline to answer on the office calendar, but she mistakenly used the date the power of attorney was signed rather than the date of service to calculate the deadline, and wrote down January 29, 1969. On January 28, the wife's attorney phoned the husband's attorney to say he would be filing an answer, only to learn the case had already been heard and a divorce decree entered four days earlier. The next day, the attorney moved to set aside the default judgment, attaching an answer with a meritorious defense and a counterclaim raising property and support issues. The district court granted the motion and set aside the default. The husband appealed. The Nevada Supreme Court affirmed. It reiterated the strong policy favoring trial on the merits and held that the failure to appear on time was due to the excusable neglect of the wife's attorney's office. Delegating the calendaring of cases to a trusted secretary is not neglect in itself, and the secretary's calculation error in this instance was understandable and fell short of inexcusable neglect. No third-party rights had intervened, and nothing in the record justified overturning the trial court's decision to allow a trial on the merits.