WOODRUFF VS. WOODRUFF (DIVORCE PROPERTY & ALIMONY)

Statutes cited

Key holdings

Practitioner summary

The court (Gunderson, J.) affirmed in part and remanded on the alimony issue. On jurisdiction, the residency requirement of NRS 125.020 presents a question of fact for the trial court, and the finding of respondent's bona fide residence was supported by substantial evidence. Boisen v. Boisen, 85 Nev. 122, 124, 451 P.2d 363, 364 (1969); Moore v. Moore, 75 Nev. 189, 192, 336 P.2d 1073, 1074 (1959); Baker v. Baker, 76 Nev. 127, 130, 350 P.2d 140, 141 (1960). Appellant could not challenge the denial of her oral motion for a continuance because no supporting affidavit was filed as required by DCR 21. Baer v. Amos J. Walker, Inc., 85 Nev. 219, 452 P.2d 916 (1969); Piazza v. Reid, 83 Nev. 123, 424 P.2d 413 (1967). The court found the community property distribution fair and equitable under NRS 125.150 and perceived no abuse of discretion in ordering the parties to bear their own costs. Armour v. Armour, 93 Nev. 63, 560 P.2d 148 (1977); Jolley v. Jolley, 92 Nev. 298, 549 P.2d 1407 (1976); Fletcher v. Fletcher, 89 Nev. 540, 542-543, 516 P.2d 103, 104 (1973). The dispositive holding concerns pleading of alimony. The district court had excluded evidence supporting alimony on the view that alimony must be specially pleaded and had rejected as untimely appellant's request to amend. The Supreme Court held that alimony is incidental to a divorce and need not be specially pleaded: NRCP 9 lists matters that must be specially pleaded and alimony is not among them, and while NRS 125.150(2) requires attorney's fees to be sought by motion or placed in issue by the pleadings, NRS 125.150(1) contains no comparable requirement for alimony, unqualifiedly vesting the district court with authority to award alimony to either spouse 'in granting a divorce.' The court therefore erred in excluding the alimony evidence; the decision whether to grant alimony remains discretionary. NRS 125.150(1); Fletcher, 89 Nev. at 542, 516 P.2d at 104. Remanded for further proceedings.

In plain language

After a district court granted a divorce, divided the couple's community property, and denied attorney's fees, the wife, Charlotte Woodruff, appealed. She raised four complaints, and the Nevada Supreme Court agreed with her on only one - but that one required sending part of the case back. First, Charlotte argued the court had no power to grant the divorce because her husband did not really meet Nevada's six-week residency requirement. The Supreme Court explained that residency in a divorce case is a question of fact for the trial judge, and here there was substantial evidence supporting the finding that the husband was a bona fide Nevada resident, so that finding stood. Second, she said the judge wrongly refused to postpone the trial. The court held she could not challenge that ruling because she had not filed the affidavit that the rules require to support a request for a continuance. Third, she challenged how the property was split and the refusal to award her attorney's fees. The Supreme Court found the property division fair and equitable and saw no abuse of discretion in ordering each side to pay its own costs. Fourth, and the winning point, she argued the trial court wrongly refused to let her put on evidence to support an award of alimony. The trial judge had believed that alimony must be specifically requested in the pleadings and treated her request to amend as too late. The Supreme Court disagreed. It held that alimony does not have to be specially pleaded - unlike attorney's fees, which the statute says must be sought by motion or placed in issue by the pleadings, the alimony statute simply gives the court authority to award alimony 'in granting a divorce.' Alimony is considered incidental to the divorce itself. Because the court wrongly excluded the alimony evidence, that part of the case was sent back for further proceedings, though whether to actually award alimony remains within the trial court's discretion.