WITTENBERG VS. WITTENBERG (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Appeal by the wife (defendant) from a decree granting the husband a divorce on the ground of willful desertion for more than one year (Fifth Judicial District Court, Nye County), and from the order denying a new trial. The wife's answer and cross-complaint (desertion, neglect to provide, extreme cruelty; prayer for separate maintenance) were all found unproven, and the trial court found she had willfully deserted the husband. Her principal contention was that there was no evidence her desertion was against the husband's will and without his consent. Affirming, the court held the record presented a substantial conflict, but the husband's positive testimony that he never wanted the wife to remain at the ranch and repeatedly sought her return was some evidence the departure was against his will and without his consent; the court would reverse only if clearly satisfied the evidence did not justify the findings, and it was not, deferring to the trial judge who saw and heard the witnesses. The court further held: (1) condonation is an affirmative defense that must be specially pleaded (Morris v. Morris, 50 Nev. 298, 258 P. 232) and, not having been pleaded or raised below, could not be urged for the first time on appeal (Paterson v. Condos, 55 Nev. 260, 30 P.2d 283); (2) Nevada requires corroboration only of residence (Section 9467.02 N.C.L.), not of the grounds for divorce where the trier is convinced of the testimony's truthfulness, and there was no collusion; a spouse at fault in the separation who wishes to defeat a desertion ground must make a good-faith, unconditional offer to return; (3) the evidentiary assignments were not cogently argued and disclosed no patent, prejudicial error; and (4) the motion to supplement the record with certain depositions was denied because the proper course was a motion to remand the bill of exceptions for amendment (Section 8903 N.C.L. 1929 having been superseded; Brearley v. Arobio, 54 Nev. 382, 12 P.2d 339). Affirmed.

In plain language

A husband obtained a divorce on the ground that his wife had willfully deserted him for more than a year. The wife had left the couple's Tonopah home for her own ranch in 1930 and never lived with him again. She had counterclaimed for separate maintenance, accusing the husband of desertion, failure to provide, and cruelty, but the trial court found none of her claims proven and found she had deserted him. She appealed, insisting the husband had offered no evidence that her leaving was against his will and without his consent - which she called the heart of the appeal. The Nevada Supreme Court affirmed. It found the record full of flatly conflicting testimony, but held the husband's own testimony - that he never wanted her to stay at the ranch and repeatedly tried to persuade her to return - was some evidence that her departure and absence were against his will. Because it could not say the trial court's findings were clearly wrong, and because much must be left to the trial judge who saw the witnesses, it upheld the desertion finding. The court also rejected several other arguments: the wife's claim that the husband had 'condoned' (forgiven) any desertion could not be raised for the first time on appeal, because condonation is an affirmative defense that must be specially pleaded and it never was; Nevada does not require corroboration of the grounds for divorce (only residence must be corroborated), and there was no collusion; a deserting spouse who wants to end the desertion must make a good-faith, unconditional offer to return, which the wife never did; her evidentiary objections were not adequately argued and showed no prejudicial error; and her late attempt to add certain depositions to the record was procedurally improper.