PEARSON VS. PEARSON (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

On the husband's appeal from a judgment denying him a divorce and awarding the wife separate maintenance, the court addressed the three-year separation ground under NRS 125.010. It reaffirmed that a party seeking a divorce on that ground need not be without fault; fault is merely a circumstance for the trial court's discretion (Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378; Jeffers v. Jeffers, 55 Nev. 201, 29 P.2d 351; George v. George, 56 Nev. 12, 41 P.2d 1059), and a court may grant a divorce to a plaintiff at fault against a faultless defendant (Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212). The controlling consideration is the probability of the parties living together for their best interest and that of society (George), and whether reconciliation is likely. The trial court denied the divorce solely on its conclusion that reconciliation was possible because the wife believed it was. The court held this rested on a false premise: reconciliation is impossible if one party is unwilling, and the uncontradicted evidence showed the husband would not reconcile; the separation contemplated by the statute need not be by mutual consent (Caye v. Caye, 66 Nev. 78, 203 P.2d 1013; Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581). Because the trial court misconceived the reconciliation evidence, it abused its discretion; the court reversed and remanded for the trial court to exercise its discretion in light of the impossibility of reconciliation, while remaining free to deny a divorce on consideration of recriminatory evidence (Fausone v. Fausone, 75 Nev. 222, 338 P.2d 68). The court also reversed the judgment for past support (stated as $30,788.44). Under the separate-maintenance statute (NRS 125.210), a wife cannot in a separate-maintenance action recover sums expended for the past support of herself or the minor children, whether or not she could maintain an independent action therefor (Lemp v. Lemp). The security provisions were modified to delete reference to that sum; the monthly support award, unchallenged, was undisturbed.

In plain language

The husband sued for divorce on the ground that the parties had lived separate and apart for more than three consecutive years without cohabitation. The wife admitted the separation but said it was the husband's fault because he had deserted her, and she cross-claimed for separate maintenance (later adding an adultery charge). The trial court found the parties had been separated more than three years, but refused to grant the husband a divorce, reasoning that the wife never intended the separation to be permanent, so a reconciliation was possible. The court instead granted the wife separate maintenance, including a large judgment for past support she had expended. The husband appealed. The Nevada Supreme Court reversed the denial of the divorce. It explained that under the three-year-separation statute, the party seeking divorce need not be free of fault; fault is just one circumstance for the court's discretion, and the key question is the probability of the parties living together for their best interest and society's. The trial court's refusal rested only on its conclusion that reconciliation was possible because the wife believed it was. The Supreme Court held that was a false premise: there can be no reconciliation if one party is unwilling, and the evidence showed without contradiction that the husband would not reconcile. The separation need not be by mutual consent. Because the trial court misconceived the reconciliation evidence, it abused its discretion, and the case was sent back for the court to exercise its discretion knowing reconciliation was impossible (though it could still consider recriminatory evidence). The court also reversed the money judgment for past support. Under Nevada's separate-maintenance statute, a wife cannot recover sums she already spent on past support of herself or the children in a separate-maintenance action, whether or not she could sue for them independently.