OLSZOWY VS. OLSZOWY (DIVORCE)

Key holdings

Practitioner summary

The defendant wife appealed from a decree granting the plaintiff husband an absolute divorce for extreme cruelty (mental in nature) and from the denial of her motion for a new trial, assigning error in the admission of testimony concerning the effect of her conduct on the husband's health where his bill of particulars contained no such matter, and challenging the sufficiency of the evidence. The court (Eather, C.J.) held: (1) the complaint, pleading cruelty in the words of the statute, satisfied sec. 9467.04, N.C.L. 1931-1941 Supp. (Buaas v. Buaas, 62 Nev. 232), and the omission of health-effect allegations from the bill of particulars - where the wife requested no further particulars - could not render the complaint insufficient or exclude the proof; (2) the wife's motion for a new trial rested solely on insufficiency of the evidence, and under Water Co. of Tonopah v. Tonopah Belmont Development Co., 50 Nev. 24, alleged errors in evidentiary rulings must be presented on a motion for new trial before they may be urged on appeal - grounds not relied upon below are abandoned; and (3) testimony of the wife's continual complaints about the husband's home, family, and orchestra work, threats to leave, open quarrels, and threats of self-destruction by overdose, with resulting unjustified impairment of the husband's health, constituted substantial evidence, and under the long-established rule a judgment supported by substantially conflicting evidence will not be disturbed. Affirmed.

In plain language

A husband won a divorce on the ground of extreme cruelty, entirely mental in nature. His wife appealed, complaining chiefly that the trial court let him testify about how her conduct had damaged his health even though his bill of particulars - the document itemizing his claims - said nothing about health effects, and that the evidence was too thin to prove extreme cruelty. The Nevada Supreme Court affirmed. A divorce complaint may state the cause for divorce in the words of the statute, and the omission of health-effect allegations from a bill of particulars does not make the complaint insufficient or bar the proof; the wife could have requested further particulars and did not. Moreover, she had not raised the evidentiary ruling in her motion for a new trial - she argued only insufficiency of the evidence there - and a claimed error in admitting evidence must be presented to the trial court on a new-trial motion before it can be urged on appeal; grounds not relied on below are abandoned. On sufficiency, the testimony that the wife constantly complained about the husband's home, family and work, threatened to leave him, quarreled openly, and threatened to overdose on sleeping pills, with resulting impairment of his health, was substantial evidence, and under the settled rule a judgment resting on substantially conflicting evidence will not be disturbed.