REED VS. REED (DIVORCE)

Key holdings

Practitioner summary

Plaintiff wife's appeal from a district court judgment refusing her a divorce sought on the statutory ground of extreme cruelty, assigning insufficiency of the evidence to support the findings and that the facts found entitled her to a decree. Lewis, J., affirmed on both propositions. The findings stood because the material parts of plaintiff's testimony were contradicted and explained away by defendant, and neither a judge's findings nor a jury's verdict will be disturbed on conflicting, rather equally balanced evidence unless the preponderance against it is very great and decided. On the legal standard, the court construed 'extreme cruelty' beyond the saevitia definition of Morris v. Morris, 14 Cal. 76 (reasonable apprehension of bodily harm): the effect and probable consequence of the misconduct should control, and if it appears probable that the life of one party is rendered miserable by any character of misconduct of the other, although no personal violence is done or apprehended, separation should be decreed. Qualifications: an isolated act of violence born of rashness rather than malignity, with no apprehension of repetition, will not support a divorce, the relief being protective rather than punitive (citing Pothier, Traite du contrat de mariage 509); and a divorce is never granted where the complainant willfully provoked the violence or misconduct, unless the violence was extremely out of proportion to the provocation (Poor v. Poor, 8 N.H. 308; Morris v. Morris, 14 Cal. 76). The findings that plaintiff forcibly and persistently interfered with defendant's moderate correction of their child in the first incident, and 'needlessly and with force' provoked the second incident (in which she was severely injured) while defendant was neither addressing her with abusive language nor offering her personal violence, deprived her of relief. Judgment affirmed.

In plain language

A wife asked for a divorce on allegations of ill-treatment and extreme cruelty. After a full hearing of the evidence on both sides, the district judge refused the divorce, and she appealed, arguing that the findings were not supported by the evidence and that the facts as found entitled her to a decree. The Nevada Supreme Court affirmed. On the evidence, her testimony standing alone might have supported findings in her favor, but the husband contradicted and explained away its material parts, and where the testimony is conflicting and rather equally balanced, findings will not be set aside. On the law, the court took a notably broad view of what 'extreme cruelty' means: it criticized the older rule (from Morris v. Morris, 14 Cal. 76) that focused only on bodily harm, holding that there can be extreme cruelty without the slightest violence - the effect and probable consequence of the misconduct should control, and if one spouse's conduct renders the other's life miserable, a separation may be decreed even with no physical danger. But the court also held that a divorce is never granted where the complaining party willfully provoked the violence complained of, unless the violence was extremely out of proportion to the provocation. Here the findings were that the wife provoked both incidents of violence - the first when she forcibly and persistently interfered while the husband was moderately correcting their child, and the second, in which she was severely injured, when she 'needlessly and with force' provoked him while he was neither abusing nor threatening her. Those findings defeated her claim.