PRESSON VS. PRESSON (DIVORCE)

Key holdings

Practitioner summary

Appeal by the plaintiff wife from a judgment denying her divorce for want of jurisdiction. The complaint alleged six months' Washoe County residence under Rev. Laws 1912, sec. 5838; the answer denied it; a jury specially found actual presence for six months but that plaintiff came solely to obtain a divorce, intending to return to Nebraska upon decree. Coleman, J., harmonized sec. 5838 and Rev. Laws sec. 3610 (legal residence: fixed and permanent habitation with intent to return) with the act of 1911 (Stats. 1911, c. 158: legal residence for any right dependent on residence is where the person has been 'actually, physically and corporeally present' during the whole claimed period). Repeals by implication are not favored (State v. Ducker, 35 Nev. 214; State v. Donnelly, 20 Nev. 216); the acts are in pari materia and not repugnant. The 1911 act superimposed a physical presence requirement on, and did not displace, the bona fide intent element of residence recognized in Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445 ('legal residence consists of fact and intention combined') and Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824. Whise v. Whise, 36 Nev. 16, 131 Pac. 967, distinguished as addressing only a party's freedom to depart after judgment. Plaintiff, not having come to Washoe County with the intent of becoming a bona fide resident, conferred no jurisdiction. Judgment affirmed.

In plain language

A wife filed for divorce in Washoe County, alleging she had resided there for the six months the statute required. Her husband denied it, and a jury made special findings: she had actually been in Washoe County for six months before filing, but she came to Nevada for the sole purpose of getting a divorce and intended to return to Nebraska as soon as she got it. The trial court concluded it had no jurisdiction and entered judgment against her, and she appealed. The Nevada Supreme Court affirmed, rejecting the argument that a 1911 statute defining legal residence as actual physical presence had eliminated intent from the residence requirement. Reading the statutes together, the court held the 1911 act ADDED a requirement of physical, corporeal presence for the statutory period; it did not repeal the long-standing rule that residence is made up of fact plus intention - a fixed abode with the intent of remaining. Someone who is bodily present for six months but never intends to make Nevada home is not a resident for divorce purposes. Language in Whise v. Whise about parties being free to leave after judgment was explained as meaning only that a litigant may go where she pleases once the case ends, not that intent is irrelevant to residence.