NIELSEN VS. NIELSEN (DIVORCE)

Key holdings

Practitioner summary

The dispositive assignment was the sufficiency of the complaint. While Session Laws 1931, c. 97, p. 162, permits a plaintiff to state the grounds for divorce in the words of the statute (subject to a bill of particulars), the court held that the specific acts and words alleged did not constitute extreme cruelty and were inconsistent with, and rendered insufficient, any charge purportedly made in the statutory words. The alleged direction to do more work was characterized as a suggestion rather than a command, with the wife's labor appearing voluntary and the husband's lack of appreciation attributable to thoughtlessness rather than ill will. The rude remark, not shown to have been made before third parties and alleged only as occasional, would not impair the health of a wife of ordinary sensibility nor create a reasonable apprehension of such injury. Applying Kelly v. Kelly, 18 Nev. 49, 1 P. 194, the court reiterated that legal cruelty requires danger to life, limb, or health, or reasonable apprehension of such danger, and that mere austerity of temper, petulance of manner, rudeness of language, want of civil attention, and even occasional sallies of passion not threatening bodily harm do not amount to legal cruelty; the recent legislative liberalization of divorce did not modify the Kelly doctrine. The complaint being insufficient, the allowances for the wife's expenses and attorney's fee were likewise erroneous.

In plain language

A wife sued her husband for divorce on the ground of extreme cruelty. Her complaint described how the couple ran a California sanitarium, how she did a great deal of the work caring for patients, and how the husband expected her to work even harder. She pointed to his remarks such as "you could stand to do a lot more work" and "I've made a damn sight more money before I married you anyway," saying his conduct and the overwork caused her great mental anguish and hurt her health. The husband did not appear at trial, and the court granted the wife a divorce plus expense money, an attorney fee, and costs. The husband appealed. The Nevada Supreme Court held the complaint did not state extreme cruelty. Nevada law let a party plead a ground in the words of the statute, but the specific facts here were actually inconsistent with cruelty. The court reasoned that telling a spouse she "could stand to do a lot more work" was a suggestion, not a command, and that her hard work appeared voluntary; the husband's lack of appreciation might be thoughtlessness rather than ill will. The rude money remark, though wounding, was not made in front of others and would not, occasionally spoken, impair the health of an ordinarily sensitive wife or make her reasonably fear injury. Quoting its earlier Kelly v. Kelly decision, the court repeated that legal cruelty requires danger (or reasonable fear of danger) to life, limb, or health, and that mere rudeness, petulance, or occasional temper is not enough. Because the complaint was insufficient, the divorce and all the money awards fell with it, and the court reversed.