Calvert v. Calvert

• Decision Date: 19 February 1942
• Docket Number: 3348.
• Citation: 122 P.2d 426,61 Nev. 168
• Parties: CALVERT v. CALVERT.
• Court: Nevada Supreme Court

122 P.2d 426

61 Nev. 168

CALVERT v. CALVERT.

No. 3348.

Supreme Court of Nevada

February 19, 1942

Appeal from Second Judicial District Court, Washoe County; Wm McKnight, Judge.

Action by Naidene Parker Calvert against William Jay Calvert to vacate a decree of divorce. From a decree dismissing the action, plaintiff appeals.

Affirmed.

Morley Griswold, George L. Vargas, and Bert Goldwater, all of Reno (John H. Parker, of Reno, of counsel), for appellant.

E. J Botts, of Honolulu, T. I., Homer Mooney, of Carson City, and F. K. Unsworth, of Reno, for respondent.

ORR Justice.

On December 2nd, 1940, appellant filed in the Second Judicial District Court a complaint asking that a decree of divorce entered in said court on the 14th day of January, 1939 dissolving the bonds of matrimony theretofore existing between the appellant and respondent, be vacated and set aside, for the reason that said decree was obtained by duress and coercion exerted upon appellant by respondent. Respondent filed a general demurrer to the said complaint, and thereafter the court sustained said demurrer and gave appellant ten days in which to serve and file an amended complaint. Appellant did not elect so to do, and thereafter a judgment and decree dismissing the said action with prejudice was made and entered. From the said judgment and decree appellant has taken this appeal.

The complaint filed in the district court alleges, in substance that the decree entered therein in favor of appellant was obtained by an exertion of duress and coercion on the part of respondent against the appellant, and that pressure and restraint used by respondent against the appellant compelled the appellant to act against her will; that respondent, by use of physical violence, threats and intimidation against the appellant, and "in addition, by exertion of control irrespective of the manifestation or apprehension of physical force, compelled said appellant to conduct herself according to the desires of respondent and virtually took away and destroyed any free agency on the part of appellant."

It is further alleged that for many years prior to November, 1938 while appellant and respondent were living together as man and wife, respondent had treated appellant with mental and physical cruelty, insulted and neglected appellant on numerous occasions, and used force and violence upon the appellant, which consisted of brutal beatings and chokings; that appellant was estranged from respondent for a number of years because of certain physical ailments suffered by respondent; that respondent during the year 1937 and for some months thereafter encouraged a friendship between appellant and another, and encouraged appellant to divorce the respondent and marry another; and that a certain party referred to in the complaint and the respondent conspired to have appellant procure a divorce from respondent, and induced the appellant to believe that the party mentioned would marry and support and care for the appellant, but that these protestations were merely for the purpose of permitting respondent to get rid of the appellant as his wife; and that thereafter the respondent, having encouraged the said friendly relations between the appellant and the party mentioned, threatened to intimate publicly that the said relations and friendship were not proper; that the whole conduct of the respondent was to commit a fraud upon the appellant and deprive the appellant of her home by threats and coercion, to the effect that respondent would expose appellant to ridicule and social ostracism, and that said threats were accompanied by physical violence and the manifestation of the control exercised by a husband over a wife; that on or about the 4th day of July, 1938, the respondent demanded of appellant that appellant procure a divorce; that said demand was accompanied by force and threats of such extreme violence that appellant was compelled to act against her will; that respondent threatened to sue appellant for a divorce if appellant failed to comply with the demands of respondent; that respondent threatened to circulate a story concerning appellant composed of malicious untruths, calculated to bring social contempt upon appellant, and threatened to involve the son of appellant and respondent and bring disgrace upon said son and ruin his social and military position; that the respondent professed to know certain stories concerning appellant which he threatened to expose, and thereby malign and injure the appellant. That respondent demanded that the appellant leave their domicile in Virginia and proceed to Reno, Nevada, and there procure a divorce; that appellant was coerced by threats, violence and cruelty to leave Virginia and go to Reno, Nevada; that appellant remained in Reno and employed counsel and caused a divorce action to be instituted in the district court. She alleges that all of her acts were under compulsion by reason of fear for her physical safety and a public scandal which would result if she disobeyed the directions of the respondent. It is further alleged that the appellant was not free to confide in her counsel concerning the duress and coercion which she had and was then suffering. That at the time of the demand upon her by respondent that she procure a decree of divorce, appellant was forty-five years of age and had been married to respondent for...