SMITH VS. SMITH (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Thompson, J. The issue was whether the premature entry of a default divorce decree renders it void or merely voidable. The court held the decree voidable. Personal jurisdiction attached when the defendant was served with process in Montreal (NRCP 4(e)(2)); the court's premature hearing (before expiration of the 20-day answer period measured from actual service) was a procedural irregularity within jurisdiction, rendering the judgment voidable rather than void. La Potin v. La Potin, 75 Nev. 264, 339 P.2d 123 (1959), was distinguished because jurisdiction was never acquired there. A voidable default judgment must be attacked by motion under NRCP 60(b), and for surprise within six months of entry (NRCP 55(c), 60(b)(1), (c)); it cannot be set aside by an independent action absent extrinsic fraud or a recognized ground for such an action. The deputy's good-faith affidavit reflecting an honest mistake of identity was not extrinsic fraud. Summary judgment affirmed.

In plain language

George Smith obtained a default divorce from his wife, Margaret, in 1964. Process was sent for personal service outside Nevada, and the record showed she was served both in Brookline, Massachusetts and later in Montreal, Canada. Relying on the earlier Massachusetts service, the court tried the case and granted the divorce on August 25, 1964. It later turned out that the Massachusetts service had not actually happened - the deputy had served the wrong person by mistake - and that Margaret was really served only in Montreal on August 14. That meant the August 25 hearing came too soon. About fifteen months later, Margaret filed a separate lawsuit to throw out the divorce, arguing the decree was completely void. The husband won summary judgment, and the Nevada Supreme Court affirmed. The court held the decree was only voidable, not void, because the court had gained jurisdiction over Margaret when she was served in Montreal; the early hearing was just a procedural irregularity. A voidable default decree has to be challenged by motion within six months, not by a new lawsuit years later, and there was no fraud - the server's mistaken affidavit was made in good faith. Because Margaret did not move within six months, she was out of time.