SUTHERLAND VS. SUTHERLAND (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

The court reviewed a decree of divorce granted to the husband on the ground of three consecutive years of separation without cohabitation under NRS 125.010. On domicile, the trial court's finding of the requisite residential intent was supported by substantial evidence and would not be disturbed. Miller v. Miller, 37 Nev. 257, 142 P. 218 (1914); Green v. Henderson, 66 Nev. 314, 208 P.2d 1058 (1949). Because the husband held a visa permitting indefinite residence when he formed that intent in April 1957, his legal status posed no obstruction to Nevada domicile, and it was immaterial whether his earlier visitor's permit allowed employment; the trial court did not err in sustaining objections to that inquiry. The separation period supporting divorce began November 10, 1954, when the husband first asserted the intent not to resume cohabitation, and ran uninterrupted until the December 4, 1957 complaint. Caye v. Caye, 66 Nev. 83, 211 P.2d 252 (1949). The court rejected the contention that, where a child is involved, the trial court lacks discretion to grant a divorce absent an affirmative showing that divorce serves the child's best interest; the record showed no failure to consider the child's interest and no abuse of discretion. A divorce on the three-year separation ground may be granted, in the court's discretion, to the party most at fault. Fausone v. Fausone, 75 Nev. 222, 338 P.2d 68 (1959). The trial court committed no error in excluding an unauthenticated copy of a Canadian separate-maintenance record, even if the underlying fact might have been admissible if properly presented. Finally, dismissal of the husband's premature first divorce complaint (filed before the three years had run) was no bar to the second, timely complaint; where a cause of action depends on the passage of time and springs into existence at a given date, a premature attempt to assert it does not bar prosecution after it matures, distinguishing Barber v. Barber, 47 Nev. 377, 222 P. 284 (1924).

In plain language

James and the defendant wife married in England in 1944 and lived in Canada, New Jersey, and again in Canada. In April 1954 the wife took the couple's young son to visit relatives in England, with the husband's consent and financial help; the separation was voluntary at first and neither intended to end the marriage. In November 1954 the husband wrote saying he wanted to end the marriage, and the couple never lived together again. The husband eventually settled in Las Vegas after obtaining a visa that let him stay in the United States permanently. He filed for divorce too early in 1957 (before three full years of separation had passed) and that case was dismissed; he filed again in December 1957 on the ground of three years' separation, and the trial court granted him a divorce. The wife appealed. The Nevada Supreme Court affirmed. It held the husband had established a real Nevada domicile once he held a visa allowing him to remain in the country indefinitely, so it did not matter whether his earlier visitor's permit had allowed him to work. The three-year separation period ran from November 10, 1954 (when the husband first made clear he would not resume living together) and had fully elapsed by the time the second complaint was filed. The court rejected the wife's argument that a divorce could not be granted without a showing that it would serve the child's best interest, finding no indication the trial judge ignored the child's interest and no abuse of discretion. It also held that a divorce may, in the court's discretion, be granted on the three-year separation ground even to the spouse more at fault, that excluded evidence of a Canadian separate-maintenance decree had not been properly authenticated, and that dismissal of the premature first complaint did not bar the later, timely one.