SISSON VS. SISSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

On the husband's appeal, the court first resolved the standard of review where the evidence before the trial court consisted entirely of the written record taken before a master. Following Garaventa v. Gardella, 63 Nev. 304, 169 P.2d 540, the court held it lacks power to weigh the evidence de novo even where the evidence is all in writing; the trial court's findings will not be set aside unless clearly or manifestly against the weight of the evidence or without reasonable support, and the court considers the evidence only to determine whether substantial evidence supports the findings. On the divorce, the court found substantial evidence that the husband's conduct adversely affected the wife's health, sufficient to establish extreme cruelty (Marshburn v. Marshburn, 77 Nev. 206, 361 P.2d 112; Coolman v. Coolman, 76 Nev. 43, 348 P.2d 471). On comparative rectitude under NRS 125.120, the court held that adultery is not per se a graver delict than cruelty; the degree of fault turns on the facts (Gabler v. Gabler, 72 Nev. 325, 304 P.2d 404). Because the wife's admitted adultery occurred after the parties executed a separation agreement and separated, the trial court could conclude her adultery did not cause the marriage's disintegration and that she was least in fault; no abuse of discretion occurred in granting her the divorce. On custody under NRS 125.140(1), which directs disposition as appears most expedient for the children's present comfort and future well-being, the court reviewed the parents' backgrounds, relationships with the children, finances, and moral environment. It held that although wide discretion is given the trial court and a bad spouse may be a good parent, the mother deliberately subjected the children (old enough to discern right from wrong) to a shameful, immoral environment for over a year, holding out her paramour as her husband, while the father was not found unfit and could provide greater security, stability, and a more wholesome environment. Distinguishing cases involving isolated infidelity or facts shielding the children (e.g., Norman v. Norman, 27 Wash. 2d 25, 176 P.2d 349; Grimditch v. Grimditch, 71 Ariz. 198, 225 P.2d 489), and citing authorities reversing custody awards to adulterous mothers, the court held the trial court abused its discretion. It affirmed the divorce but reversed the custody and support-incident provisions, awarding the father sole custody with reasonable visitation to the mother, and remanded for entry of judgment accordingly.

In plain language

The wife sued for divorce alleging extreme cruelty and sought custody of the three young children (ages 9, 6, and 4). The husband counterclaimed for divorce based on the wife's adultery, which she admitted. By consent the case went to a special master, who recommended a divorce and custody for the wife; the trial court adopted that recommendation and awarded her the divorce and custody. The husband appealed. On the divorce, the Nevada Supreme Court first held it must review the record (which was all written, taken before the master) under the deferential "substantial evidence" standard, not by re-weighing the evidence itself. It found substantial evidence that the husband's conduct impaired the wife's health, and it upheld granting her the divorce as the party "least in fault" under the comparative-rectitude statute, reasoning that the wife's adultery occurred after the parties had already separated by written agreement, so it was not the cause of the marriage's breakdown. On custody, however, the court reversed. It detailed that after the separation the wife traveled cross-country and lived openly with her paramour (now her intended third husband), committing adultery repeatedly while the children (old enough to understand) lived in that environment for more than a year, holding the man out as her husband. The father, by contrast, was not found unfit and could provide the children more security, stability, and a more wholesome moral environment. The court held that although a person may be a bad spouse yet a good parent, and adultery is not always decisive as to the children, here the mother deliberately subjected the children to a shameful, immoral environment for over a year. It found no authority supporting a custody award to a mother under such circumstances and held the trial court abused its discretion. It affirmed the divorce but reversed the custody award, granting the father sole custody with reasonable visitation to the mother.